NZ Council for Civil Liberties

What the Royal Commission on Lessons from COVID-19 should consider

Published · Updated

Introduction

  1. The Council undertook quite a lot of work during 2020-2022 on various aspects of the government’s response to the COVID-19 pandemic. You can read this work elsewhere on our website.
  1. As the Royal Commission of Inquiry into COVID-19 Lessons requires submissions to be kept secret, the Council has instead decided to publish its thoughts on the government’s response to the pandemic, and on the Royal Commission’s decision not to hold its sessions in public and to make orders requiring evidence to be kept secret.
  1. After criticising the secrecy of the Royal Commission itself we urge it to ensure any non-publication order it makes at the end of its work is as narrow as possible.
  1. We then address the issues of government secrecy during the response to the pandemic, before making comments on the civil liberties aspects of the lockdowns and vaccine mandates.

Royal Commission’s secrecy

  1. The Council is disturbed by the Royal Commission’s decision to meet in secret and require secrecy for submissions made to it. This was not required by its terms of reference and its choice to do so is an attack on New Zealand’s norms of openness.1Set out in the Royal Commission of Inquiry (COVID-19 Lessons) Order 2022. https://www.legislation.govt.nz/regulation/public/2022/0323/latest/LMS792965.html
  1. Royal Commissions do not only serve the purpose of helping the state learn lessons from an event. They also exist to help the public learn what happened and what may be done better in future. While the terms of reference state that the Inquiry ‘must operate in a way that does not take a legalistic and adversarial approach’ meeting in public does not necessarily undermine the achievement of that requirement, and publication of a final report cannot achieve all of the potential learning that could happen if the Inquiry were mainly held in public.2Terms of Reference paragraph 7(2).
  1. The secrecy with regard to its hearings has been compounded by its order prohibiting publication of evidence and submissions to the Inquiry and by its Guidance for Agencies subject to the Official Information Act 1982.3Minute 1: Interim non-publication – evidence and submissions received by the Royal Commission of Inquiry into COVID-19 Lessons. 2 June 2023. https://www.covid19lessons.royalcommission.nz/assets/Uploads/Minute-1-Interim-non-publication-evidence-and-submissions-received.pdf

    Guidance for Agencies subject to the Official Information Act 1982, Royal Commission of Inquiry into COVID-19 Lessons. 2 June 2023. https://www.covid19lessons.royalcommission.nz/assets/Uploads/Guidance-for-agencies-OIA-requests-updated-2-June-2023.pdf     Permitting the publication of submissions, or their disclosure in response to an Official Information Act (OIA) request is the normal way to proceed in a democracy which has ratified international human rights instruments such as the International Covenant on Civil and Political Rights.4International Covenant on Civil and Political Rights, United Nations, 1966. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights Article 19 of the Convention, the right to seek, receive and impart information, is mirrored in section 14 of the New Zealand Bill of Rights Act 1990,5New Zealand Bill of Rights Act 1990, section 14. https://legislation.govt.nz/act/public/1990/0109/latest/whole.html#DLM225513 and the OIA already has grounds for withholding information that should be consistent with limitations on the section 14 and Article 19 right, such as when they contain personal information. There is no indication in Minute 1 of the Royal Commission that the Commissioners adequately turned their minds to the requirements in section 15(2) of the Inquiries Act 2013 to consider:6Inquiries Act 2013, section 15. https://www.legislation.govt.nz/act/public/2013/0060/latest/whole.html#DLM1566150
    1. the benefits of observing the principle of open justice; and
    2. the risk of prejudice to public confidence in the proceedings of the inquiry;
  1. These are fundamental precepts in an open democracy like ours. If the Commissioners did adequately consider these requirements before making their order, their Minute completely failed to explain their reasoning for overturning these norms of openness.
  1. Further, a key purpose of the Commission hearing from the public is fundamentally weakened if the public does not know what evidence has already been gathered by the Inquiry on a particular topic: it is hard to challenge the claims of those whose written and oral testimony has not been made public. While the Commission may have found that secrecy encourages government officials and other witnesses to speak freely and frankly, the public have no idea whether this has led to admissions of non-compliance with the law, or administrative and procedural failings. Witnesses may, on the other hand, have told the Inquiry that laws such as the Public Records Act 2005 and the OIA were perfectly complied with. The public do not even know whether the Commissioners have asked witnesses the questions that they themselves would want to have asked. Given the fact that the Commissioners are people with experience of being in positions of power and authority, not with experience of being disempowered members of the public or civil society organisations, this secrecy is detrimental to public confidence and trust in the Royal Commission.
  1. Since public confidence and trust in state institutions is at the heart of much of the pandemic response being examined by the Inquiry, it is paradoxical that it should have adopted secrecy measures that provide comfort to those inside and at the top of those institutions while damaging the ability of the public to scrutinise their claims.

Ending secrecy when the Royal Commission concludes

  1. The Council urges the Commissioners to undo its orders requiring secrecy, if not for material received until now, then for the remaining stages of the Inquiry.
  1. We also urge them to ensure that the orders under section 15 about access to the Inquiry’s evidence and other papers that will be made at the conclusion of the Inquiry are as narrowly drawn as possible, recognising that its arguments for secrecy claimed during the Inquiry’s proceedings should drop away at the conclusion of them. As the Ombudsman notes in his 2020 guide, ‘It is not necessary to make overly broad orders because the OIA is capable of protecting official information held by agencies where that is in the public interest.’7The OIA and Inquiries: The interaction between the OIA and the Inquiries Act 2013. Office of the Ombudsman, August 2020. Page 9. https://www.ombudsman.parliament.nz/resources/oia-and-inquiries-act-2013

Government secrecy while responding to the pandemic

  1. Between 2020 and 2022 the Council was naturally concerned with a number of civil liberties issues relating to the pandemic. In order to address these, we sought to use our rights under the Official Information Act. In spite of the then Minister of Justice’s statement on 24 March 2020 that “The Official Information Act remains important for holding power to account during this extraordinary time”,8See this tweet from the Minister of Justice, Andrew Little, on 24 March 2020: https://twitter.com/andrewlittle_nz/status/1242278903776870400 we experienced greater problems than normal gaining access to information, and with using the Office of the Ombudsman as the complaints mechanism. In short, the systems for accessing information in order to participate in our democracy were not sufficiently resilient.

Proactive openness started well but declined later

  1. The government was justifiably praised for its openness at the start of the pandemic. Daily press conferences included ministers and senior public servants openly admitting what they did not know, as well as communicating useful information to help people maintain their health. The creation of the Covid-19.govt.nz website was a very useful step because it did not just include health information, but also provided information on government policies for responding to the pandemic. It saw, for the first time, the collection and structuring of Cabinet papers on different aspects of the pandemic in a single, easy to find, location. This was important given the speed at which legislative measures were enacted.
  1. However, this good practice abruptly ceased at the end of July 2021, when the Delta variant outbreak in Auckland occurred. With no warning, and no public explanation after the fact, the government simply ceased publishing Cabinet papers on the Covid-19 website. It did not resume publication of them until November 2021. During these five months the government was developing policy and approving actions on a number of key issues with significant civil liberties ramifications, including vaccine certificates and vaccine mandates. Its failure to publish the papers during this period may have lessened the workload on officials and ministers in relation to responding to correspondence from the public about these issues, but they also fuelled distrust. The Council was particularly concerned about the secrecy around these issues, as there was no visible, or even private, assurance that the government was considering the privacy and freedom of association issues, let alone incorporating adequate avoidance or mitigation measures. The government’s secrecy also coincided with its policy shift from Covid-19 Alert Levels to the ‘traffic light’ scheme. Given its effects in terms of slackening public health protection measures with a shift from ‘elimination’ to ‘suppression’ this too should have been the subject of much greater openness and public input. Business pressure for removal of restrictions may have been successfully countered with pressure for enactment of indoor air quality standards and assistance for schools and workplaces to meet them.
  1. Marc Daalder, exceptionally amongst the media, raised these issues, including in a Newsroom report on 6 October 2021:

In the first stages of the pandemic, the Government was admirably transparent with its decision-making documents. Less than two months after New Zealand went into lockdown, a vast trove of Cabinet documents was released online, relating not only to the lockdown but to the entire health, economic and border response up until just three weeks prior to the proactive release.

Standards have since slipped. The Cabinet documents relating to the February outbreak were only released at the start of June. On that timeline, it would be mid-January before Monday’s advice is published.

Such a scenario would only further erode the social licence that has upheld our unique response thus far.

That licence will fray even more due to the perception that the end of elimination would seem to be a significant departure from the Government’s evidence-based decision-making process, given the broad opposition from independent health experts. If there is expert scientific advice backing the decision, then the public deserves to see it as soon as possible.

  1. Similarly, the transcript of the Prime Minister’s press conference on 19 October 2021 shows (on page 9) a pretty dismissive attitude from the Prime Minister towards media concerns regarding the shortcomings of voluntary proactive publication. While the Council is aware of the immense difficulties the government was experiencing in developing policy at speed during the pandemic, we recommend the Royal Commission examines the actions around, and shortcomings of, proactive publication. Greater openness could not only have reduced the number of OIA requests to respond to, but also strengthened public policy through public input and reinforced public trust.

Secrecy regarding design of the vaccination certificate system

  1. Throughout 2021 the government was designing a system to enable people who had been vaccinated to certify this to third parties. This was a key component of restricting entry to certain places only to those who had been vaccinated. However the scope of the scheme, what data would be retained, and who it would be shared with were all secret.
  1. On 5 October 2021 the Prime Minister held a press conference to announce that the Cabinet had agreed to the use of vaccine certificates.9PM and Dr McElnay Press Conference, 5 October 2021 http://www.beehive.govt.nz/sites/default/files/2021-10/Press%20Conference%205%20October%202021.pdf The Prime Minister said that the government was ‘consulting on this framework now’ and that this included their use in hospitality venues. Later in the press conference, the Prime Minister responded to a question about the use of certificates to access church services, and suggested the consultation was also including ‘what kind of measures do those organisations want to have in place’. The Prime Minister said that ‘they’re very open conversations’.
  1. The Council was unable to find any information relating to the framework for vaccination certificates on the websites of the DPMC, Ministry of Health, Covid-19.govt.nz or the central consultation listing website. There was clearly not a public consultation, even though the government was clearly aware of the civil liberties implications of vaccination certificates being introduced, since the Prime Minister indicated they would not be required for people visiting supermarkets, health centres or pharmacies. The officials from the Ministry of Health who presented details of the certificate at the press conference referred to working ‘very closely with the Privacy Commissioner’.
  1. The Council had made an OIA request to the Privacy Commissioner for the advice he had provided to the government on the privacy issues involved with vaccine certificates. The Commissioner refused the request, citing section 206 of the Privacy Act 2020.10Privacy Commissioner response to NZCCL request for information. 24 September 2021. https://nzccl.org.nz/wp-content/uploads/2021-09-24-OIA-Response-from-OPC.pdf Section 206 is a provision that enables the Commissioner to keep secret information that comes to their knowledge in the exercise of their functions. It is, however, permissive, with section 206(2) meaning the Privacy Commissioner can choose to make information available in certain circumstances. The Commissioner opted for secrecy, at a time when there was a strong public interest in disclosure of his advice to the government.
  1. The Council believes that section 206 of the Privacy Act should be repealed since the withholding grounds in the OIA provide ample protection for information that should not be disclosed at the time of responding to a request. If it is not repealed, it should be amended so that it cannot be used to withhold the Commissioner’s advice to government when it is considering possible responses to public health emergencies such as the COVID-19 pandemic. We believe the Royal Commission should examine the public availability of expert advice to government on rights issues during the pandemic and what effect its unavailability had on people’s ability to participate in democratic decision-making and law making. As noted earlier, trust in government institutions is a critical factor in responding to the pandemic, and secrecy – particularly for reasons of administrative and political convenience when needing to respond to a public interest issue such as a pandemic – will undermine that trust when it is most needed.
  1. The Council wrote to the Prime Minister on 9 October 2021 to follow up on her press conference.11Letter to PM and Minister re vaccination certificates, NZCCL. 9 October 2021. https://nzccl.org.nz/letter-to-pm-and-minister-re-vaccination-certificates/ . The OIA requests referred to can be found here https://fyi.org.nz/request/15162-certification-of-covid-status#incoming-62135 and here https://fyi.org.nz/request/15419-public-interest-considerations-re-oia-refusal-of-info-re-vaccine-certification#incoming-62843 It pointed out that,

The Ministry of Health and DPMC have taken more than 5 months to respond to people’s requests for information about policy development on this issue. The responses were sparse and withheld most relevant information. In no shape or form could they be seen to adhere to the OIA’s stated purpose of enabling people to participate in the making and administration of laws and policies.

  1. In the absence of proactive disclosure by the government of the information about the vaccine certificate scheme at a time when the Prime Minister said some people were being consulted about the scheme’s design, the Council’s letter to the Prime Minister included an OIA request for:

all information that has been provided to the sectors or organisations the government is consulting with on the vaccine certificate, as well as all advice from the Privacy Commissioner and from the Ministry of Justice or Crown Law on the NZ Bill of Rights Act and Human Rights Act implications of the proposals.

  1. Given the imminence of government decisions on the scheme’s design and the introduction of enabling legislation, we sought urgency for the processing of our request. We wanted the information in time to inform not just our contribution to the consideration of the legislation, but also to inform members of parliament and others. Too forestall a claim by the government that the Council would be able to make a submission on the bill at select committee stage, the Council told the Prime Minister:

The Government may suggest that the public and NZCCL will have an opportunity to make a submission to a select committee when legislation is introduced to Parliament. This is unacceptable as it comes after Cabinet has decided on the details of the scheme and time is very short. In our experience of making submissions on legislation, this is too late – particularly with a scheme that the government is introducing so soon – to enable anyone to have influence on the shape of the scheme.

  1. The government not only failed to respond to our request urgently, but failed to meet the statutory 20 working day deadline at all. The Minister for COVID-19 Response, Chris Hipkins, finally responded on 22 November 2021.12OIA Response from the Minister for COVID-19 Response, 22 November 2021. https://nzccl.org.nz/wp-content/uploads/C19OIA2021033-Thomas-Beagle_OIA-response.pdf Instead of providing the information at that time, just before the legislation was debated, the Minister said he would ‘proactively release’ documents ‘by late January 2022’. One cannot ‘proactively release’ information that has been requested, and following an investigation the Ombudsman subsequently found that the Minister’s response was ‘unreasonable’.13Ombudsman case note 568703, 3 May 2023. Request for information about vaccination certificates for domestic use https://www.ombudsman.parliament.nz/resources/request-information-about-vaccination-certificates-domestic-use
  1. The Ombudsman’s investigation into the Council’s complaint not only found that the Minister had failed to comply with the OIA’s requirements to respond on time but also that “the delay in making the decision exacerbated the unreasonableness of the subsequent decision to refuse the request.”
  1. The Ombudsman also found that:
    • the NZCCL had made a genuine request on 9 October 2021 for its request to be treated urgently to enable ‘effective participation in the making and administration of laws and policies’ (section 4(a)(i) OIA refers). Deferring release would inhibit this legitimate objective;
    • what was planned for proactive release was evidently not exactly the same as what NZCCL had requested;
    • there had been an insufficient assessment of whether the requested information that was proposed for proactive release would include redactions.
  1. The Minister for COVID-19 Response eventually provided the Council with the slide decks used to consult with ‘stakeholders’ on 2 September 2022, almost a year after we had requested them from the Prime Minister, and obviously long after the legislation was enacted.14Minister Verrall, letter of 2 September 2022: https://nzccl.org.nz/wp-content/uploads/Verrall-further-OIA-response-02-September-2022.pdf . Copies of the slide decks: https://nzccl.org.nz/wp-content/uploads/Verrall-02-09-22-MOMB-568703-PowerPoint-Presentations.pdf
  1. On 10 September 2021 the Council had made another OIA request to the Department of Prime Minister and Cabinet (DPMC), for information about use of information gathered during contact tracing. There had been incidents overseas where contact tracing information had been used by police forces for other purposes, and there was a clear risk not only to civil liberties if this was happening here, but also to people’s willingness to cooperate with the contact tracing regime.15NZCCL OIA request about the use of information gathered under the COVID-19 Public Health Response (Alert Level Requirements) Order (No 10) 2021. 10 September 2021. https://fyi.org.nz/request/16693-use-of-information-gathered-under-the-covid-19-public-health-response-alert-level-requirements-order-no-10-2021 The information was not provided to the Council until 24 December 2021. It took an Ombudsman’s investigation before the Council received, on 26 August 2022, an apology for the Department of Prime Minister and Cabinet:16DPMC letter to NZCCL, 26 August 2022. https://nzccl.org.nz/apology-from-dpmc-for-oia-mismanagement/

DPMC apologises for extending the time limits for responding to your request and failing to respond within the statutory time limits.

DPMC acknowledges a large amount of time passed before the information within the scope of your request was released to you. The decision to extend and the failure to meet the extended timeframe were due to the significant workload pressures DPMC was experiencing in the course of our response to the pandemic and other areas of work.

However, DPMC accepts such pressures are not a reason under the Act to extend the timeframe for making a decision. On behalf of DPMC, I apologise again for the way in which your request for official information was managed.

Problems with the Ombudsman

  1. The Council is aware that the Royal Commission’s Terms of Reference exclude consideration of Ombudsman ‘decisions’. What should not be considered ‘out of scope’ by the Inquiry is whether the Ombudsman’s office was able to cope with the challenges presented by government conduct in the course of responding to the pandemic.
  1. In relation to the Council’s 9 October 2021 OIA request about the consultation and advice on vaccine certificates, when the Council received the Minister’s overdue refusal of our request on 22 November 2021 we immediately complained to the Ombudsman.17NZCCL complaint to the Ombudsman, 22 November 2021. https://nzccl.org.nz/wp-content/uploads/2021-11-22_NZCCL_complaint_to_Ombudsman.pdf The Council specifically asked the Ombudsman to investigate the complaint urgently, due to the imminent introduction of the vaccine certificate enabling legislation and reminded the Ombudsman of statements he had made in his 2020-21 Annual Report:

“In a modern democracy, the public must be able to participate in government decision-making.” and that “This is achieved in various ways, including through greater openness, fairness, and transparency of government information” and that “Public participation in government decision-making contributes to higher trust in government and protection of people’s rights.”

  1. The Council asked for an urgent investigation, as it knew that such an action was possible: in 2005 the Ombudsman expedited an investigation into the Treasury’s refusal to disclose its costings of Labour’s proposal to make student loans interest-free. This investigation had been completed within 8 days, with disclosure to take place on the same day as the Ombudsman’s final opinion because the Ombudsman recognised the strong public interest in ensuring the public had the facts ahead of voting in the general election.18Request for Treasury costings of interest-free student loans policy. Ombudsman case note W54720, 1 October 2005. https://www.ombudsman.parliament.nz/resources/request-treasury-costings-interest-free-student-loans-policy The Council saw the introduction of vaccine certificates as of similar importance, given the absence of information about the scheme’s design and the potential for them to be a gateway towards major incursions on people’s civil liberties and privacy.
  1. The Ombudsman’s staff did not urgently commence an investigation into the Council’s complaint. Whether by conscious decision to ignore the significance of the issue, or the lack of ability to recognise it, the complaint was not accorded any urgency, to the extent that it was not even formally notified. As we detailed in our letter to the Ombudsman on 22 June 2022, his office had completely failed to do its job. No investigation had begun before we were incorrectly told the Ombudsman could not investigate because of a ministerial reshuffle.19NZCCL letter to the Ombudsman, 22 June 2022. https://nzccl.org.nz/failure-to-investigate-an-oia-complaint-can-complaints-survive-a-reshuffle/
  1. The Ombudsman admitted his staff’s error in a reply the following day:20Ombudsman reply to NZCCL, 23 June 2022. https://nzccl.org.nz/the-ombudsmans-reply/

I wish to sincerely apologise for the way your complaint has been managed to date.

The response by my office has fallen short of my expectations and I have asked for your case to be immediately reopened and progressed without delay.

  1. The matter was reported by the New Zealand Herald on 22 June 2022.
  1. While the Inquiry cannot investigate the Ombudsman’s decisions on OIA complaints, it can look at the operation and capability of the Ombudsman’s office during the pandemic. The Ombudsman is at the heart of people’s ability to seek and receive information – and the centrality of this right was underlined by the Ombudsman and the Minister of Justice at the start of the pandemic. If the ability of people to get redress in a timely manner does not function properly, then their rights are next to worthless and the safeguards in terms of accountability and our ability to participate are illusory. The Council believes that a key lesson to be learned, with the help of the Royal Commission, is that resilience and capability issues in a pandemic are not just matters for the health system, but are also critical to the continuance of our democracy. We hope that the Inquiry will delve into this issue and make recommendations.

Government consultation failures

  1. As noted in relation to the Council’s 9 October 2021 request for information to the Prime Minister, the public was not consulted about options for design of the vaccine certificates. As Dr Verrall told the Council in September 2022, during October 2021 “Ministers led engagement through targeted discussions with a range of stakeholders, including Treaty Partners, the Health and Disability Sector, supermarkets, retail, hospitality and events, sports, places of worship, education entities, unions, and other workplaces”.21Minister Verrall, letter of 2 September 2022: https://nzccl.org.nz/wp-content/uploads/Verrall-further-OIA-response-02-September-2022.pdf
  1. Notably absent from the groups that Ministers consulted are non-governmental organisations that work in the field of civil liberties, human rights, and privacy. In addition to the Council not being consulted, neither is the Law Society, Amnesty International or the Privacy Foundation. It is unclear whether the Human Rights Commission was consulted. This is in spite of the fact that the slides eventually disclosed by the Minister stating:22Copies of the slide decks: https://nzccl.org.nz/wp-content/uploads/Verrall-02-09-22-MOMB-568703-PowerPoint-Presentations.pdf

The government, private sector and non-government organisations could, with relevant considerations of public health and human rights, introduce vaccination status as an entry requirement for their premises.

This would also involve an exemption framework to protect individuals who cannot be vaccinated against discrimination, so long as this does not undermine the public health reason for the restriction.

  1. What this highlights is the risks of government consulting only ‘targeted’ organisations, rather than the public, on issues that affect us all. The Council is sure that if the decision to proceed with only limited consultation was actually justified within government at the time, the reason given will have been lack of resources and time to consider public input.
  1. This is not just an issue that affected consultation during the pandemic though; it is a continuing feature of the public service that appears to have accelerated after the 2017 general election. Just this month, the Council was amongst those ‘targeted’ for engagement by the Ministry of Justice on a question affecting the public as a whole – how should proposals for laws that override the OIA be tested before proceeding into legislation?
  1. The failures to consult around the vaccine certificate scheme were not a one-off during the development of the vaccine certificate scheme. The enabling legislation was subsequently pushed through the House under urgency in 24 hours. Similarly, the Council was amongst one of a handful of groups given a few hours overnight on 11-12 May 2020 to provide the Government with comments on the draft Covid-19 Public Health Response Bill.
  1. The government’s short-sightedness regarding the importance of public participation was compounded by its Covid-19 Response (Fast Track Consenting) Bill in June 2020. The Council made written and oral submissions to the select committee on the Bill and opposed the legislation since it removed public participation rights in relation to major projects that could have significant environmental impacts. We said:

The Council believes that our democratic rights to participate in decision making on environmental issues should not be sacrificed in a short term effort to boost our economy, and does not support this Bill progressing further.

The Council rejects the false dichotomy proposed by this Bill that we must choose to weaken either our economy or our democracy. The Council notes that history demonstrates that prosperity flows from freedom, not the reverse.

  1. During 2020-21 we have no doubt that capacity inside government departments for public consultation was constrained. But the Inquiry should examine this issue because, as we have previously said, openness and public participation are key factors in retaining public trust and confidence, and this is a precious resource at all times, but especially during a public health emergency. The Council’s view is that the government likely struggled with this in 2020-21 because of the systematic failure over many years of successive governments, and the public service, to adequately develop good principles for public consultation and the capacity and skills to do it well. We would like the Royal Commission to make recommendations on the quality and resilience of public consultation capabilities within government departments, and the contribution this makes to retention of public trust and confidence in a democratic response to public health emergencies.

Concerns regarding compliance with the Public Records Act 2005

  1. Underpinning the ability of governments to conduct their work, and the ability of the public both to participate in policy making and hold government to account is the quality of government information and records management. Timely provision of information to ministers, MPs, other officials, journalists and the public depend on records being created, stored and managed properly.
  1. This is recognised in section 17 of the Public Records Act 2005:

17   Requirement to create and maintain records

(1)  Every public office and local authority must create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice, including the records of any matter that is contracted out to an independent contractor.

(2)  Every public office must maintain in an accessible form, so as to be able to be used for subsequent reference, all public records that are in its control, until their disposal is authorised by or under this Act or required by or under another Act.

  1. The inquiries into the responses of the UK and Scottish governments to COVID-19 have revealed serious problems concerning the use of messaging apps, in particular WhatsApp. This affected policy responses to the pandemic, but also enabled corrupt procurement of goods such as protective equipment.
  1. Because the Royal Commission has met in secret and prohibited the publication of evidence submitted to it, the Council does not know whether the Inquiry has examined government record-keeping and information management during the pandemic. It may have looked at this only in relation to the creation of the vaccination registry system that underpinned the vaccine certificates.
  1. But members of the Council’s committee are aware of the fact that at the start of the pandemic, when many officials were first sent to work from home during the lockdown, that large numbers of public servants installed and activated a messaging app similar to WhatsApp, called Signal. This, in itself, is not a bad thing: Signal is encrypted and officials needed secure means to communicate with each other. What the Council is concerned about is whether ministers and departments ensured that they provided guidance and training to officials to ensure that section 17 of the Public Records Act was complied with. This would have meant having systems in place to copy the substantive communications into a department’s information management system.
  1. A failure to do this would not just mean that the conduct of government business may not be fully disclosed in response to an OIA request, but also that lobbying and communications relating to procurement using public money was not properly stored for scrutiny by the Auditor-General and others. The development of the government’s COVID-19 tracer app was, for example, not tendered on the GETS system, and we suspect many other goods and services bypassed normal procurement processes.
  1. The Council understands that Signal continues to be in widespread use within government, despite the large amount of manual labour required to copy messages in this app into systems compliant with the Public Records Act.
  1. The Royal Commission should take evidence from the Chief Archivist, as well as from information management officials in government departments and those who worked in ministers’ offices, about the quality and resilience of compliance with the Public Records Act. In particular it should ask about compliance with the Chief Archivist’s guidance on managing text messages.

The Council’s view on lockdowns

  1. The New Zealand Bill of Rights Act 1990 sets out our rights to peaceful assembly (section 16), our right to meet whomever we want (section 17), and our right to move freely around the country (section 18). However, section 5 provides that there may exist reasonable limits on our rights.
  1. The Covid lockdowns in 2020 and 2021 certainly infringed upon those rights. The issue is whether they were necessary and proportionate limitations on our rights.
  1. In March 2020, the Council wrote:

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.

  1. There is a pedantic, legal problem when our BORA rights are limited in order to ensure our health, namely that Aotearoa New Zealand has no law establishing a right to health. The Council agrees with the Human Rights Commission and UN Human Rights Council’s calls to acknowledge our right to health in our laws.
  1. Given that the Council wishes that we had legal acknowledgement of our right to health, we are not combative about measures which infringe on our other rights in order to protect our health. We hope however that the Royal Commission will recommend that our right to health should be enshrined in primary legislation.
  1. The Council not only responded to the overnight consultation on the Covid-19 Public Health Response Bill in May 2020, but also made a detailed submission to the select committee that conducted post-legislative scrutiny of the Act. We:
    • Welcomed the move from using very wide-ranging emergency powers to a law focused on responding to the current pandemic, with the powers moving from unelected officials to elected politicians with parliamentary oversight.
    • Pointed out a number of problems where the law was still too expansive, or gave powers without the protections contained in the NZ Bill of Rights and other NZ laws.
    • Noted the attempts to provide for oversight but pointed out the many shortcomings and omissions.
  1. But on balance we accept that the government was right to make this momentous lockdown decision based on the best data it had available at the time, and that furthermore the government clearly explained the rationale behind the decision to the people of New Zealand.

The Council’s view on vaccine mandates

  1. The Council unambiguously supports vaccination. In 2021, we wrote we wrote a long article examining the justifications for the mandates as well as the certificates:

Unless you’re genuinely one of the very small number of people who can’t get vaccinated for medical reasons, you owe it to yourself and the rest of us to get vaccinated against this deadly disease.

  1. However the Council was, and remains, troubled by the details of the vaccine mandates. In the same article, we also wrote:

It is deeply problematic that we still do not know what the government’s purposes for vaccination certificates are. The headline purpose is clear: to assist in limiting the spread of the virus by only permitting vaccinated people to enter certain kinds of places or to attend certain kinds of events. But we don’t know if the government has other purposes in mind, which it will cite as providing a reason for collecting, retaining and possibly sharing a greater range of data.

  1. When the Government wishes to impose restrictions on our civil liberties for the public good, the onus is on the government to prove that these restrictions are effective and necessary. At a minimum we would expect the government to share the available data, the scientific arguments based on that data, and an explanation of how the restrictions are a rational response to the science.
  1. As we have already pointed out, the government failed to do this for the vaccine mandate and certification regimes. There is a direct contrast between the openness seen right at the start of the pandemic and the failure to consult at this later stage.
  1. As we wrote in our letter to the Prime Minister:

New Zealand’s response to Covid-19 until now has been built on government trust in the public, and high levels of public trust in government. The introduction of vaccination certificates is clearly a shift from government trusting the public, while asking the public to place even more trust in government.

When the government is asking the ‘team of 5 million’ to trust it in this way, it really does require the government to demonstrate the same degree of trust by being open with the public and sharing detailed information about proposals that will affect their freedoms. When there is a refusal to do so, it becomes increasingly difficult to respond favourably in what is becoming a one-sided relationship.

  1. We note that this is a classic example of the process by which what would once be seen as extreme measures become normalised and ‘business as usual’. While the Government was undoubtedly suffering from ‘pandemic fatigue’ the matter of our civil liberties and our right to refuse medical treatment is significant enough that half-measures are not acceptable.

Conclusion

  1. Public health crises, along with the responses to natural disasters, are likely to be accompanied by stresses on good governance, high quality policy making, and commitment to democratic norms. What may superficially seem to be working well under normal circumstances can be revealed in a crisis to be built on foundations of sand. The resilience of more than health systems needs to be scrutinised closely by the Royal Commission, for lessons we must learn about investment in training and systems, and about leadership commitment to open government and the records management that rests upon.
  1. During the course of the pandemic, the government enacted the Public Service Act 2020. This legislation says that one of the purposes of the public service is to ‘facilitate active citizenship’. To achieve that purpose, the Act sets out ‘public service principles’, one of which is ‘to foster a culture of open government’. These principles are a statutory duty on the chief executives of government departments and agencies, but it is entirely unclear how the Public Service Commissioner assesses chief executives’ compliance with this duty. The Act also sets out ‘public service values’, including to be ‘Trustworthy’. To be trustworthy, the Act says the public service must ‘act with integrity and be open and transparent.’
  1. Protection of people’s civil liberties in a public health emergency is critical to retaining the public trust and confidence. Governments need the public to trust them in these circumstances more than ever because they may ask them to do extraordinary things, and accept extraordinary limitations.
  1. We hope the Royal Commission will examine the relationship between good governance and public trust in detail, and that it will take these lessons on board itself, by making the evidence and testimony it has received as open as possible.