Civil liberties during a pandemic
There is no doubt that our government will need to take on exceptional powers to deal with the COVID-19 pandemic and protect the health of all New Zealanders. We support the government's actions so far in doing so, and note that they appear to be proportionate and justifiable.
We approve of the establishment of a cross-party Select Committee, headed by the Leader of the Opposition, to provide oversight of the actions of the Government while Parliament is closed. Of course we hope that we return to full Parliamentary scrutiny as soon as possible.
We also welcome the Ombudsman’s statement about prioritising Official Information Act complaints relating to ‘when a decision involves public health and safety or those that affect someone’s financial circumstances, housing situation or family circumstances.’ The Minister of Justice’s statement that the OIA ‘remains important for holding power to account during this extraordinary time’ is similarly welcome.
However, as the crisis continues it is likely government interventions will increase. Other countries, such as Israel, UK, and China are in the process of implementing new forms of tracking and surveillance to monitor and control the spread of disease, and it seems possible that New Zealand will follow in their wake.
How can we best protect our civil liberties and the rights protected in the New Zealand Bill of Rights Act in this difficult time?
We ask the government to:
- Set time-limits on all new regulations, laws, and amendments.
- Empower Parliament’s Epidemic Response Committee to recommend that the Speaker recall the House early.
- Use invasive new powers solely for the purpose of dealing with the pandemic.
- Ensure that if a medical officer of health seeks to use their powers to direct a person be quarantined, or made subject to a public health order, that the person or their legal representative is able to access the Courts if they want to challenge the direction or order.1
- Ensure that the Government demonstrates it wants public scrutiny of any exercise of the powers under Part 3A of the Health Act, by applying to the presiding Judge to permit journalists to witness the proceedings and report them to the public, to the extent that information is not subject to a narrow suppression order.2
- Commit to proactively disclosing the existence and use of any new forms of surveillance or tracking (including the extension of existing powers).
- Establish a public central register to track all orders, new regulations, laws, and amendments made as a result of the pandemic response.
All extraordinary measures must be held to account, and open justice must be preserved.
There are undoubtedly exceptional challenges ahead for New Zealand as the result of the COVID-19 pandemic. It is important that we have the ability to meet those challenges, but it is equally important that we keep people’s trust in our democratic government – this is crucial for public acceptance of the advice the government wants us to follow. We believe that the measures we recommend will help maintain that trust.
- Medical officers of health have the power under sections 92I and 92N of the Health Act 1956 to issue directions and notices to people, and the power under section 92Z to ask the courts to issue a public health order. This can include detention of people. While section 92E requires the affected person to be informed about the intended course of action, section 92T does not guarantee their right to access the court if they want to bring a challenge and the government should take the steps necessary to facilitate this.
- Section 92ZL of the Health Act 1956 creates a presumption of closed proceedings when hearing any applications for orders and appeals against directions. Given the extraordinary breadth and magnitude of the powers available to medical officers of health in these circumstances, it is vital that the court proceedings are open to at least one media representative who may report on the applications and appeals, and relevant information disclosed at the hearing unless a narrowly specified suppression order is made by the presiding judge.