Sasha Borissenko: The fishhooks in Govt's Covid-19 response bill

The new law gives extends police power to enforce the alert levels. Photo / Dean Purcell

The Covid-19 Public Health Response Bill passed its third and final reading last Wednesday. Attorney General David Parker described the 2020 act as "bespoke" in a very "makeshift-Kiwi-ingenuity" type of fashion. Incredibly too, a suggested amendment included the typo "contract tracing", which is a little too close to the bone for a column such as this. Nonetheless the Covid-19 Public Health Response Act 2020 is now law, and could be in place for the next two years. So what's all the fuss about?

Why so fast?

Otago University professor Andrew Geddis has taken umbrage over the haste in which the Act was implemented. Although he and others (including the Law Society) were given the heads up: they received a draft at 5.30pm the evening before it was introduced to the House, and had to provide feedback before a 10am deadline. So there was a 16.5 hour window, sans sleep, of course.

Geddis said it would have been ideal if the Government had put the legislation in place prior to the lockdown - it would have meant we wouldn't be bickering over whether it was legal, for example. And, the more time to consider the framework, the better, he said. "It was introduced 48 hours before alert level 2 was to kick in, so there was an artificial sense of crisis, and it meant it had to be put under urgency."

What's in it?

It's certainly an improvement over the Health Act regime insofar as it outlines who's making decisions and there are processes around decision-making, Geddis says. The New Zealand public may have spat the dummy over intrusive enforcement provisions (concerning police entering private dwellings without a warrant), but Geddis says these powers existed prior to the act, so there's nothing to write home about. Whether those enforcement powers ought to continue, that's another issue altogether.

It's the provisions concerning "enforcement officers", which is new, and of concern, he says. Under the act an enforcement officer could be the Director-General (father of the nation Ashley Bloomfield); a medical officer of health; a constable; or a person employed or engaged by the Crown or Crown entity who is suitably qualified and trained. Sorry?

Once they're all "trained up and qualified" (in what, who's to know) they'll have the power to go into premises and close businesses down for 24 hours if they reasonably believe said business isn't complying with the level 2 restrictions. The order could be done verbally, and there's no requirement to keep records, or tell anyone that they've issued such a direction. The business owner's only option is to appeal to the District Court - which could be problematic if it's 5pm on a Friday evening. Failing to comply could end in a prison sentence of up to six months, or a fine of up to $4000.

Geddis says the legislation as it stands doesn't seem to have a lot of procedural protections - but these could be provided for on a later date through regulations under the act.

Any order made under the legislation must be consistent with the Bill of Rights but of course it all rests on whether a breach is "demonstrably justified" - in a public health context this could be very wide indeed.

Note also that the Human Rights Commission Amnesty International has come to the table saying it doesn't believe sufficient human rights scrutiny has taken place. In a practical sense, if you feel your human rights have been breached, the onus is on you to go to the High Court and file a proceeding after the fact. Preventing an enforcement officer from shutting down your business by virtue of saying "you're breaching my human rights" isn't going to amount to, well, anything.

On human rights and vulnerable communities

Enforcement powers in the time of Covid-19 may demonstrably and disproportionately affect marginalised groups. The Human Rights Commission received 311 enquiries and complaints relating to the pandemic between January and May 5, for example.

JustSpeak director Tania Sawicki Mead says creating law without community consultation and without proper reasoning or procedural protections could entrench and compound issues for New Zealand's vulnerable communities.

"We've seen that the most vulnerable are negatively affected, where emergency powers can be used to justify processes that are contrary to human rights obligations."

There have been widespread reports that prisoners were held for up to 23 hours per day in their cells during alert levels 3 and 4, for example. The ombudsman is now looking into the matter, but Sawicki Mead says the actions - and the period of time in confinement - has contravened the Mandela guidelines and New Zealand's international law commitments to human rights.

As an aside, more than 2000 submissions on the Electoral (Registration of Sentenced Prisoners) Amendment Bill have been uploaded to the Parliament website. The bill allows prisoners to vote if they've served less than three years - although arguably an arbitrary number, it's better than what was prescribed in the 2010 bill, which saw no voting rights for prisoners at all. The 2010 bill had just shy of 60 submissions, which is peculiar in and of itself. Does the 2000 submissions suggest people feel strongly about the reinstatement of these rights, or have they had too much time on their hands during the lockdown?

The Government also needs to address how police and "enforcement officers" are to uphold these new rules, how they make those decisions, and who's targeted in the coming weeks, Sawicki Mead says.

Māori are eight times more likely to be subject to police violence according to a 2018 police tactical report, for example. And according to a JustSpeak report released this year, Māori who have had no prior contact with the justice system are 1.8 times at risk of a police proceeding and seven times more likely to be charged by police than Europeans.

What's more, the act explicitly referred to processes for entering marae, yet it didn't refer to religious or community premises. Is this a form of further protection, or targeting - indirectly suggesting that Māori don't have the agency to organise their affairs? It was problematic, whichever way you see it. And it's little wonder that the Māori Council successfully urged the Government to remove the specific reference to marae.

Ultimately, something's brewing, whether it means there will be a widespread erosion of trust in the Government, it's still too soon to tell.

If you've got any tips, legal tidbits, or appointments that might be of interest, please email sasha.borissenko@gmail.com.