Andrew Barnes: When to call time and repeal emergency legislation

Prime Minister Jacinda Ardern has set a dangerous precedent, writes Andrew Barnes. Photo / Mark Mitchell

OPINION:

In many ways, 2021 was not a vintage year. On the upside, our exposure to Covid, in simple terms, was mostly contained (it will be a different story this year with Omicron biting at our heels). However, the counter is the price this country and its people paid for that containment.

In terms of lives lost or saved, communities protected or broken, the ultimate balancing of the ledger will take years.

My concern, as we enter 2022, is to look at where a price has already been paid and the country has, as a consequence, become poorer.

It is often said that the road to hell is paved with good intentions. This proverb, attributed to Saint Bernard of Clairvaux, could also be applied to the Government, with the Prime Minister's emphasis on kindness and empathy hiding some worrying actions implemented in the name of keeping us safe.

When the Government introduced section 22 of the Covid-19 Public Health Response Act – which permitted checkpoints to be set up under the supervision, not control, of New Zealand Police – I was intrigued to see this enabling not just the New Zealand Army, iwi and Pasifika groups to operate checkpoints but also community patrols comprising regular citizens.

This latter group is not defined in the legislation. They merely need to be recognised by two unelected bureaucrats appointed by the Government of the day, the Commissioner of Police and the Director-General of Health.

The ability to operate checkpoints is also at the sole discretion of the Prime Minister of the day, who can invoke the legislation as a consequence of a Covid outbreak or the risk of an outbreak.

There are no hurdles to be jumped, no parliamentary review – just the Prime Minister deciding there is a risk. I believe this is a dangerous precedent. As the historian Lord Acton declared, "Power tends to corrupt and absolute power corrupts absolutely."

Governments are very good at accumulating powers to themselves but not so good at giving them up. In theory, this law could remain on the statute book with no sunset clause.

This would set a clear precedent that a future Government could amend emergency legislation for any threat, actual or perceived.

Really?

This got me thinking. In addition to the checkpoint legislation, we have also enacted – again in the name of keeping us safe – an ability for the Government to appropriate assets, such as Covid testing capabilities (most recently with the "consolidation"/commandeering of RAT tests) without effective compensation or review.

We have seen the closure of our borders, making New Zealand one of very few countries to severely curtail its own citizens' ability and right to return home. In some cases individuals have been made effectively stateless, potentially in breach of our international human rights obligations.

We have reserved the right to imprison our citizens without trial, and in this regard, we should not forget that the implementation of the Covid legislation did not initially meet the necessary constitutional standards. Subsequent legal challenges have identified that due process for the continued detainment of citizens has not been followed.

In the name of keeping us safe, the Government has decided to "consolidate" RAT tests without effective compensation or review. Photo / NZME

The pattern of conduct goes far beyond the Covid response. The Government has implemented collective bargaining legislation where a small group could potentially force a wage structure on a whole industry, notwithstanding the bulk of employees who did not want, or require such intervention.

Inland Revenue has been given powers to request information from taxpayers not related to its revenue-gathering powers.

And recently, the Government decided that people now aged 14 would never be able to buy cigarettes in New Zealand. I do not support smoking, but I am concerned that this means that by 2025 the Government will be telling adults what they can and cannot consume. If this is the case, why stop there? Why not ban alcohol, sugary drinks and fast food, each of which has a demonstrable adverse public health and taxpayer burden? Why does vaping escape the net?

If you recall, at Question Time in September 2020, in response to a question from the then Leader of the Opposition, the Prime Minister said she stood by her earlier statement: "We [the Government] will continue to be the single source of truth."

The truth now is the Government has decided it has the right and the power to control what you consume, how you can move around the country and whether you can return home; it can appropriate your assets, gather information on your affairs, detain you without trial, and determine how you are paid. And it is the only source of truth.

The message is: trust us, we are kind, we wouldn't abuse our legislative powers – but the truth is much of the aforementioned legislation went through Parliament without the usual process of submissions, debates and select committees.

The Prime Minister once joked that she thought she was going to be introduced on RNZ as "the military leader of the hermit kingdom." Given the powers she has reserved for herself and her Government, maybe the joke is on us.

Should we be surprised? No. Concomitant with Lord Acton's observation, we had to expect that a Government with an unfettered mandate would enact legislation reflecting its ideology and approach.

The blame for this state of affairs has to fall upon the National Party. Instead of holding this Government to account, raising and debating the points, it spent the last few years in self-indulgent infighting. An incompetent, ineffective Opposition is a price no democracy can pay.

Chris Luxon needs to clean house – preferably before the next election – of the architects of the disarray from the last few years, including MPs and board members. National has to recognise that it did not do its job effectively and must shoulder some of the responsibility for the legislative agenda of this Government.

As we enter 2022, I do hope we keep the worst of Covid at bay, open our borders and keep businesses thriving, but most of all I want an effective, focused Opposition.

Go on Chris, be a better candidate, and make it a clear objective that these policies will be scrutinised, challenged, and ultimately repealed.

- Andrew Barnes is a businessman and philanthropist. He is the founder of Perpetual Guardian.