It’s not exactly Hitler’s Enabling Act, quite. But, even though some aspects of this Act were watered down and the “Emergency” legislation “only” lasts for 3 months it builds on two decades of the whittling down of human rights – the “totalitarian tiptoe”.
We have seen in the last 20 years:
security regulations at airports introduced after 9/11 that have never been removed;
Various bits of legislation giving more power to the police and the GCSB that still are on the statute books but just never referred to;
the Christchurch massacre which led to rapid introduction of legislation that takes guns away from people while police are now armed on a permanent basis.
Based on that can we be assured that this Act is just temporary – especially as it has transpired that the virus in this country was bit of a non-starter – at least for now.
Just wait for the “second wave” which we are being conditioned to expect.
Covid-19 Act passes under
urgency: move towards
dictatorial powers (slightly)
Is it because I am so out-of-touch (following the news for many hours a day) that I only learned of this legislation yesterday and it was passed in the evening?
You can read the legislation HERE
You could be excused for missing the fact that the government has just passed draconian legislation that eviscerated human rights, based on this.
Here is RNZ’s Morning Report which regards the “nice feeling” of Alert Level 2 as more important than this legislation.
Similarly, on RNZ’s website.
You can hear the coverage on RNZ HERE
None of this went unnoticed for Suzie Dawson, in exile in Moscow.
This is what appeared in the NZ Herald yesterday. Shouldn’t this have been major headlines plastered across the entirety of the NZ media?
Controversial bill passed to
enforce alert level 2 powers
13 May, 2020
A bill giving police sweeping powers to potentially enter homes without warrants while enforcing Covid-19 alert level rules has passed.
The Covid-19 Public Health Response Bill was rushed through Parliament in time for alert level 2 but came under intense scrutiny from the Opposition.
It passed 63 votes in favour with 57 against.
The National Party and Act didn’t support the bill, saying it was an overreach of powers, distrusted New Zealanders and didn’t allow for orders to have proper scrutiny.
But the Government said it was necessary to ensure the continued fight against Covid-19 and created more accountability, not less.
The Human Rights Commission said it was “deeply concerned” about the lack of scrutiny of the bill and its rushed process “is a great failure of our democratic process”.
The law sets up the legal framework for future alert levels as there is no longer a State of Emergency. It effectively allows the Health Minister to issue an order that would make alert level rules legally enforceable.
That might include, for example, the ability for police or “enforcement officers” to close certain premises or roads, ban certain types of travel or congregations, or require people to be physically distant or to stay at home in their bubbles if necessary.
It also would allow warrantless searches of private property if there was a reasonable belief that the alert level rules were being broken.
It is the first Covid-related legislation that hasn’t had the support of all the political parties.
The bill was tweaked at the committee stage this morning.
At the request of the Māori Council, the specific reference to marae was removed and the Government added the requirement a warrantless search be reported to the relevant marae committee.
Attorney-General David Parker said it was written into the bill with the intention of providing more protection.
“It’s actually something that doesn’t take away protections; it actually adds them. But nonetheless, Māoridom don’t want that. They want to be the same as non-Māoridom in respect of those premises,” Parker said.
The original two-year sunset clause has been mitigated by an amendment to see the legislation refreshed every 90 days, or longer if required.
But the National Party still opposed the bill.
National MP Gerry Brownlee said it “puts far too much power in the hands of one person: the Prime Minister” because there was also no mention of what advice she needed to make a decision.
Education Minister Chris Hipkins said when Brownlee brought in legislation that curtailed civil liberties after the Canterbury Earthquakes, he felt uncomfortable voting for it but “it was the right thing to do”.
National also wanted to the bill amended to also allow people to gather in groups of up to 100 and for Opposition consultation on orders.
Opposition leader Simon Bridges yesterday called the 10-person limit on gatherings “inhumane”, especially in respect of funerals and places of worship.
The National Party today launched a petition for Parliament to reject the 10-person limit.
Today, the Government backed down on the limits on tangihanga and funerals and allowed funeral directors a special dispensation to allow up to 50 people to attend.
On the Covid-19 Public Health Response Bill, Act leader David Seymour said despite voting for it in its first and second reading, he couldn’t support it in the final stage.
The bill failed to balance the rights and freedoms and overall welfare of all New Zealanders with the Government’s effort to control Covid-19, he said.
“I have tried to work constructively to limit the power of the director general, making a democratically elected minister the only person with the power to issue long term orders, but the Government voted against that.”
Parker argued the powers under the Covid-19 Bill are “actually narrower than the powers under the Health Act” which was why the Government had created a whole new framework.
There’s also been a criticism of how quickly the bill had rushed through the House.
Ahead of its third reading, Justice Minister Andrew Little said he appreciated this wasn’t how laws were meant to be made but the times were extraordinary.
But the bill would ensure New Zealand moved down alert levels, Little said.
Chief Human Rights Commissioner Paul Hunt called the lack of scrutiny and rushed process for the bill “a great failure of our democratic process”.
The Human Rights Commission was “strongly of the view” the legislation should include a provision to ensure those making decisions, and exercising powers, under the new law, would do so in accordance with national and international human rights commitments and Te Tiriti o Waitangi, Hunt said.
“In times of national emergency sweeping powers are granted. There is a risk of overreach. Mistakes are made and later regretted. This is precisely when our national and international human rights and Te Tiriti commitments must be taken into account.”
COVID-19 law sparks debate over concern it gives ‘too much power’ to PM
A man (L) is given an appointment slip by a security guard using a stick outside a COVID-19 coronavirus clinic in Lower Hutt, near Wellington, on April 20, 2020. – New Zealand will ease a nationwide COVID-19 lockdown next week after claiming success in stopping “an uncontrolled explosion” of the virus, Prime Minister Jacinda Ardern said on April 20.
23 May, 2020
COVID-19 legislation being rushed through Parliament has sparked a heated debate over concerns among Opposition MPs that it “puts far too much power” in the hands of Prime Minister Jacinda Ardern.
The COVID-19 Public Health Response Bill was introduced to Parliament on Tuesday and debate continued into Wednesday morning, because it sets the legal framework for alert level 2 which comes into effect on Thursday.
The Government is no longer declaring a state of emergency as the nation shifts out of alert level 3, and Attorney-General David Parker said the time has come for a “bespoke piece of legislation” to guide the new rules.
But Opposition MPs are sceptical. National has had some wins, such as ensuring the legislation is reviewed every 90 days before it expires in two years’ time. But they are concerned about how much power it gives the Prime Minister.
Throughout alert levels 3 and 4, three pieces of legislation were enacted – the Health Act, the Civil Defence and Emergency Management Act and the Epidemic Preparedness Act – giving the Government the all powers it had to intrude on civil liberties.
Click here for up-to-date coverage of the COVID-19 crisis on the Microsoft News app — available on Windows 10, iOS and Android
Whereas the Health Act gives power to the Director-General of Health Dr Ashley Bloomfield, the new legislation transfers some power to Health Minister David Clark, who will be able to make judgements based on more than just health.
That’s how Parker justified the legislation in Parliament. He said the Opposition has been frustrated at how economic factors weren’t considered enough throughout the lockdown, and that’s why the new legislation is needed.
But the Opposition says it’s the Prime Minister who will have the real power, because it’s unlikely the Health Minister will act on anything without her approval.
National MP Gerry Brownlee argued that it “puts far too much power in the hands of one person: the Prime Minster” because there is also no mention of what advice she should take before making a decision.
And even then, the Director-General of Health still has the power to declare long-term emergency orders when necessary, bringing in strict measures Kiwis grew familiar with under lockdown, such as having to stay at home and refrain from travelling.
ACT leader David Seymour said the new law fails to balance the rights and freedoms and overall welfare of all New Zealanders with the Government’s effort to control COVID-19, and he will not be voting for it.
“I have tried to work constructively to limit the power of the Director-General, making a democratically elected minister the only person with the power to issue long term orders, but the Government voted against that.”
As the legislation sets out the legal framework for the next two years, National MP Brett Hudson suggested there is not need for it, unless there are problems with the current three Acts the Government has been using.
He said it seems like the Government finds those Acts “a bit annoying”, which he said is fair enough, but then they should say so, and Parliament could work on improving them.
Parker argued the powers under the COVID-19 Bill are “actually narrower than the powers under the Health Act” and that’s why the Government felt the need to create a whole new framework.
“This Bill says going forward, even if we go back to level 3 or 4, in the future the exercise of those powers has to be reported on in a more transparent way…. [It] creates more accountability because it’s a ministerial decision rather than the Director-General of Health.”
There is speculation the Government lacked the legal power to enforce the alert level 4 lockdown, with leaked Crown law advice to the media purportedly showing police were initially told they had little power to enforce the rules.
But Parker has dismissed the claims and refused to release the Crown law advice, insisting the law has been followed. He said the Crown is entitled to claim legal professional privilege in respect of the advice that it receives.
“The idea that not releasing the legal advice means the legal advice says there’s something bad in there is just wrong and unprincipled.”
The Opposition said Parker has still not justified why an entirely new framework required.
“What is the basis for the fear the Government has to the extent the need to pass legislation that is going to seriously continue to infringe on the civil liberties of New Zealanders?” Brownlee asked.
“I don’t want to say we shouldn’t take any precautions or that we shouldn’t be sensible or watch the opportunities we have to prevent the spread of this particular disease. But it appears there is no trust that New Zealanders can be sensible.”
Parker said the strict rules must continue until there is more certainty about the virus. He said it appear COVID-19 is not morphing faster than it’s possible to make a vaccine, so New Zealand could be safe as long as it maintains low levels of infection.
But if there is no prospect of a vaccine, he said society “has to deal with it in a different way” which is when the rules could be revisited – such as police being able to go onto a property without a warrant to stop parties.
“But we’re not at that point yet.”
Someone has done a screenshot with some of the enforcement provisions.
“A constable exercising a power of entry under this section may use reasonable force…”
How much force do they envisage? It is left vague.
Are they going to use their new powers to police something something like the following (from the USA and – yes- I. know we are under Level 2!)
The Human Rights Commission is concerned
So, too are Maori
A member of the Police Commissioner’s Māori advisory committee says a proposed law giving the police the right to go onto the marae without a warrant to enforce COVID-19 restrictions was an overreach.
The Public Health Response Bill was passed yesterday evening and provides a legal basis for the actions of police and government agencies under Alert level 2, which came into force at midnight.
Attorney-General David Parker says it actually means the police have narrower powers than they have had in the past seven weeks while working under the Health Act and the State of National Emergency.
But Ngahiwi Tomoana from Ngāti Kahungunu says references to marae in the Bill alarmed Māori, and put police in a difficult position.
“Because we have built up such strong relationships, we do have weekly meetings or Zooms with the police commissioner, we do have a strong police commissioner’s Māori advisory board, and at local level with police liaison officers, there is a strong bond. This sort of chucked everything back into chaos, the bad old days, and nobody, police included, wanted that,” he says.
The Government has backed down on some “extraordinary powers” in a Covid-19 level 2 law, including switching a two-year limit on the enforcement law to three months. But the intent of the bill remains the same.
The updated legislation has tweaked references to police being able to enter marae without a warrant, and removed a requirement that only police operate roadblocks — a matter of controversy after community-led roadblocks were set up around the country during lockdown.
However, the changes still potentially allow warrantless searches of premises by police for the next three months.
The law is required for the Government to enforce Covid-19 Alert Level 2 rules, such as social distancing and restriction on gatherings. It would give police powers to enter homes without warrants.
Throughout this the police have been a law under themselves under regulations that appear to have no legal basis.
Police conducted a trial of controversial facial recognition software without consulting their own bosses or the Privacy Commissioner.
The American firm Clearview AI’s system, which is used by hundreds of police departments in the United States and several other countries, is effectively a search engine for faces – billing itself as a crime-fighting tool to identify perpetrators and victims.
New Zealand Police first contacted the firm in January, and later set up a trial of the software, according to documents RNZ obtained under the Official Information Act. However, the high tech crime unit handling the technology appears to have not sought the necessary clearance before using it.
Privacy Commissioner John Edwards, who was not aware police had trialled Clearview Al when RNZ contacted him, said he would expect to be briefed on it before a trial was underway. He said Police Commissioner Andrew Coster told him he was also unaware of the trial.
“He’s concerned it was able to happen without a high-level sign-off, and [the] involvement of my office,” Edwards said, following a phone conversation with Coster on Tuesday. “They will be looking at protocols, how they do evaluate new technologies.”
From April 11-
If they were content to operate via legal order under the
Health Act then why the hurried legislation?
On Friday night, the government quietly laid down some lockdown rules via a legal order under the Health Act. Law professor Andrew Geddis explains what it means for all of us (including David Clark).
As the first week of level four lockdown unfolded, mounting questions grew as to just what was (and was not) allowed under its “rules”. Partly these were driven by some apparently contradictory messages from different authority figures and explanations carried in the media. Partly they reflected a somewhat sketchy legal basis for the lockdown itself; in particular, the notice under the Health Act 1956, s 70(1)(m).
Having been in lockdown I don’t know what this means. Is it saying you need some app on your phone to say you have been there?
“We will be practicing physical distancing and will need to have everyone record via a QR contactless code that they have been present at the premise.”
Here are someone’s comments on Facebook
Our rights enshrined in the NZ Bill of rights Act 1990 are protected by Clause 13 of the Covid -19 Public Health Response Act 2020 Act:
The NZ Bill of rights Act 1990 Sec 16: the right to associate,
Sec 17; the right to assemble and
Sec 18 (1) the right of freedom of movement.
The Covid -19 Public Health Response Act 2020 Act Clause 13 follows:
COVID-19 Public Health Response Act 2020.
Clause 13 states the legal effect of orders under clause 11.
An order may not be held invalid just because it is inconsistent with the Health Act 1956 or any other enactment relevant to the subject matter of the order, or it confers any discretion on any person. However, a section 11 order—
does not limit or affect the application of the New Zealand Bill of Rights Act 1990:
The NZ Bill of rights Act 1990 prevails over the Covid -19 Public Health Response Act 2020 Act according to the following Maximof Law:
Quod prius est verius est; et quod prius est tempore potius est jure. What is first is truest; and what comes first in time, is best in law.
All of the orders available in Clause 11 of the Covid -19 Public Health Response Act 2020 are unenforcable if you choose to exercise the rights given in the bill of rights. See below
Clause 11: Orders that can be made under this Act
(1) An order made by the Minister or the Director-General (as the case may be) under this section may do 1 or more of the following things:
(a) require persons to refrain from taking any actions that contribute or are likely to contribute to the risk of the outbreak or spread of COVID-19, or require persons to take any actions, or comply with any measures, that contribute or are likely to contribute to preventing the risk of the outbreak or spread of COVID-19, including (without limitation) requiring persons to do any of the following:
(i) stay in any specified place or refrain from going to any specified place:
(ii) refrain from associating with specified persons:
(iii) stay physically distant from any persons in any specified way:
(iv) refrain from travelling to or from any specified area:
(v) refrain from carrying out specified activities (for example, business activities involving close personal contact) or require specified activities to be carried out only in any specified way or in compliance with specified measures:
(vi) be isolated or quarantined in any specified place or in any specified way:
(vii) refrain from participating in gatherings of any specified kind, in any specified place, or in specified circumstances:
(viii) report for medical examination or testing in any specified way or in any specified circumstances:
In the small print issued ….