Covid 19 coronavirus: Alexander Gillespie - Four matters to address after the pandemic

Undoubtedly, this generation has been changed by the Covid 19 coronavirus and some laws may also need to change as well. Photo / Chesnot, Getty Images

COMMENT

As our politicians settle into the lockdown, they should start musing on what initiatives should be undertaken when the emergency ends. Here are four recommendations to help them fill their time.

The first law that should be addressed is to spitting. Few acts are more disturbing, especially when aimed at those keeping the country going at this critical time.

Currently, there is a greater chance of prosecution under the Litter Act for spitting out chewing gum than there is under criminal law, for spitting at another person.

This is somewhat of an anomaly as, on paper, the Crimes Act, already makes it a crime with a penalty of up to 14 years in jail, for anyone who, "wilfully and without lawful justification or excuse, causes or produces in any other person any disease or sickness".

The problem is what happens when someone does not actually make their target sick.

The fallback position is that the offence of spitting is pursued as a common assault. Without physical injury, it is not an easy fit into the existing law and in practice, the courts – with so many other things to worry about - have not viewed spitting, without aggravating factors, as on the more serious end of assault. This should be changed.

Adding a few additional sentences and penalties around existing laws, such as what is considered offensive behaviour could make a useful difference in this area, to help further protect police officers, frontline workers, and fellow citizens alike.

The second law that will require consideration is vaccination. This will become important once the vaccine is developed that will defeat Covid-19, perhaps a year to 18 months from now.

Between 1863 and 1920 New Zealand had compulsory vaccination for the one infectious disease that could, at that point, be defeated by science and medicine - smallpox. The obligation for vaccination fell away after the Spanish flu, as with memories of that disaster being so strong, compulsion for vaccines was not considered necessary.

• Covid19.govt.nz: The Government's official Covid-19 advisory website

In the following decades, the astounding successes of improved sanitation, town planning and further vaccines relegated many of the infectious diseases that had preyed upon earlier generations, to history. The result was that although the Governor-General retained the power under the 1956 Health Act to make regulations for, "the vaccination of persons for the prevention of quarantinable diseases", subsequent generations often grew up without the same risks, or appreciation of the tools, that saved the generations before them.

In this atmosphere, the right to refuse to undergo any medical treatment, became part of New Zealand's Bill of Rights, to which many have interpreted the right as a freedom not to vaccinate. The question that will need to be debated is whether this interpretation is correct, and if so, in the wake of a global pandemic, whether it can be derogated, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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The third law that will need to be addressed is around quarantine and isolation. The first laws on trying to control the spread of infectious disease in New Zealand date back to 1842.

They were increased every time another wave of infectious disease swept the country, and the legislators tried to learn from past experience. This saw further strong laws in 1872, and 1900, with particular concerns about the risk of bubonic plague.

Following the Spanish flu in 1918, the Health Act of 1920 set the standards for which our current, 1956, law reigns. While this law provides special powers with a wide reach for isolation and quarantine of persons and places, and the Epidemic Preparedness Act gives special powers to the Prime Minister, and the Civil Defence and Emergency Management Act allows for orders to be given to stop any activity that may cause or substantially contribute to an emergency, greater modernisation, specificity and rigidity around rules must be factored into the legislation of the 21st century.

From electronic monitoring, to non-quarantined social isolation, through to locking down an entire country, the rules will need to be sharpened.

The fourth consideration is a Royal Commission. Although I believe this Government has done an exemplary job – better than any previous government in similar situations since 1840 - in dealing with this pandemic and its unprecedented impacts on this country, it will be necessary to examine what has happened, and what can be learnt from it.

From the first national diagnosis of the problem all the way through to the recovery processes at the end, a Royal Commission should be tasked to critically review the way that health, scientific; economic; constitutional, law and order; and cultural contexts were dealt with.

This should provide a public record of what worked, what didn't, what gaps became apparent and what could be improved for next time. This will be necessary because the one certainty we have is that this will not be the last pandemic New Zealanders will face, and future generations will need to look back on the lessons of this national emergency in our time, to help them deal with theirs.

• Alexander Gillespie is a professor of law at Waikato University.