Knowledge, Truth and Discourse

The information landscape has become a rocky one. Trying to discern truth from half-truths from untruths, information from misinformation from disinformation has become a real challenge.

Two books examine and discuss the problem. One is by Ronald Collins and David Skover and is entitled The Death of Discourse[1]. It was first published in 1997 and a second edition was published in 2005. The second book is by Jonathan Rauch, published in 2022 and is entitled The Constitution of Knowledge – A Defense of Truth[2]. I recommend both books although they approach the topic in entirely different ways.

Death of Discourse looks at the modern use of the First Amendment to the US Constitution. It notes that much of our public talk resembles in character and form the distracting pleasures of Huxley’s Brave New World. We are deluged with the fact-free and amusing sound and click bite spectacles of television and other screens for our most important news and information. Our free speech system equates electronic self-amusement with enlightened civic education, the marketplace of items with the marketplace of ideas and passionate self-gratification with political realisation. In short, Collins and Skover consider that the eighteenth century Madisonian principles of discourse seem ill-suited, if not completely irrelevant, for our 21st Century mass communication. It argues that discourse is dying yet everywhere (at least in liberal democracies) free speech thrives.

The Constitution of Knowledge in fact hearkens back to the Madisonian idea and agrees with the overall thesis of Collins and Skover that there is an epistemic crisis in that discerning truth from the morass of communicated information is difficult. Although the marketplace of ideas – a metaphor from the Enlightenment Age inhabited by Jefferson and Madison – should filter out those that are true and valid, conversations are mediated through institutions like journals and newspapers and social media platforms. Largely newspapers and journals rely on a network of rules and norms – truthfulness, fact-checking, the expertise of professionals like peer reviewers and editors. The whole structure sits on a shared understanding that there are right and wrong ways to make knowledge.

Rauch suggests that these shared foundational values are for knowledge what the US Constitution does for politics. These shared foundational values create a form of governing structure forcing social contestation onto peaceful and productive pathways. Collectively Rausch calls them the Constitution of Knowledge. And he points to recent events, particularly in the US which put pressure on the norms top which he refers. In science, journalism and usually in politics truthfulness is a civic norm and not a legal requirement. He cites President Donald Trump’s disdain for truth as an example of pressure on such norms emanating from the highest level.

I don’t intend to discuss Rauch’s book in great detail. I recommend the book to anyone who is interested in the nature and validation of knowledge as truth and who is interested in the discernment of reality from the mass of communicated chatter with which we are bombarded.

I shall, however, make a couple of points. Rauch, like Collins and Skover, takes the First Amendment to the US Constitution as his starting point. The Amendment reads

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I have highlighted the relevant language.

James Madison introduced 12 amendments to the First Congress in 1789. Ten of these would go on to become what we now consider to be the Bill of Rights. Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights contains rights that many today consider to be fundamental to liberal democracies.

In New Zealand the freedom of expression is incorporated into section 14 of the New Zealand Bill of Rights Act 1990 and reads

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

It will be noted that “speech” has been expanded to expression, and section 14 protects information flows in that not only is the right to impart information and opinions protected but the seeking and receiving of information is also protected.

In the minds of many the idea that obnoxious, misguided, seditious, blasphemous and bigoted expressions deserve not only to be tolerated but, of all things, protected is, in the opinion of Rausch, the single most counterintuitive social principle in all of human history.

Every human instinct cries out against it, and every generation discovers fresh reasons to oppose it. It is saved from the scrapheap of self-evident absurdity only by the fact that it is the single most successful social principle in all of human history.

Rauch is of the view that those of us who favour it, and also our children, and also their children and their children will need to get up every morning and explain and defend our counterintuitive social principle from scratch.

The Constitution of Knowledge, those norms and standards that underpin truthfulness and reliability, relies upon the full-hearted embrace and full-throated defense of its principles by ordinary members of the reality based community.

Rauch places reality front and centre of his thesis. Reality, he says, is that which is reliable and intractable and cannot be wished away. However, we have no direct access to the objective world independent of our minds and senses, and subjective certainty is no guarantee of truth.

When we think of reality, therefore, we think of it epistemically – as that of which we have objective knowledge. Reality becomes a set of propositions which have been validated in some way and have been shown to be at least conditionally true – unless they are later debunked. Some propositions reflect reality as we perceive in daily life – the sky is blue – water is wet. Other propositions like a physicist’s quantum equations, may be incomprehensible to intuition.

The problem comes in the validation of a proposition as reality. The only way is to submit the proposition  to the reality based community. Otherwise a proposition may be validated by brute force, torture, oppression as history has taught us in the past. Or the proposition may be shared among a closed community who talk only to one another in which case it is submitted to something akin to a cult.

Rauch suggests that there are two core rules and any public conversation which obeys those rules will display the distinguishing characteristics of liberal science.

The rules are described as the Fallabilist Rule and the Empirical Rule.

The Fallabilist Rule holds that no one gets the final say. One may claim that a statement is established as knowledge only if it can be debunked, in principle, and only insofar as it withstands attempts to debunk it. Thus a speaker is entitled to claim that a statement is objectively true only insofar as it is checkable and has stood up to checking. This means that there may be an argument but the rule directs us as to how we behave. We must assume our own and everyone else’s fallibility and we must hunt out our own and others’ errors even if I am confident I am right. Put another way, if I put up an idea I must accept that it is liable to be challenged and I must accept that and be prepared to engage to validate my idea or accept that it may be modified.

The Empirical Rule holds that no one has personal authority. I may claim that a stament has been established as knowledge only insofar as the method used to check it gives the same result regardless of the identity of the checker and regardless of the source of the statement. A proposition must be capable of being something anyone can do and get the same result. In addition, no one proposing a hypothesis gets a free pass or special treatment because of who he or she may be or dependent upon whatever group to which he or she may belong. The fact that I might have a PhD in no way validates or provides any extra weight to my proposition. The proposition must stand on its own. Thus who I am does not count. The rule applies to everyone. If my method is valid only for me or my affinity group or people who believe as I do, the proposition cannot be checked and validated by everyone.

Applying the Rules

So let us put a proposition for examination to see if it complies with section 14 of the New Zealand Bill of Rights Act and Rauch’s two reality based rules.

On September 2nd 2020 the Prime Minister of New Zealand, Ms Jacinda Ardern said to the Parliament

“I want to send a clear message to the New Zealand public: we will share with you the most up-to-date information daily. You can trust us as a source of that information. You can trust the Director-General of Health. For that information, do feel free to visit at any time—to clarify any rumour you may hear—the covid19.govt.nz website. Otherwise dismiss anything else. We will continue to be your single source of truth. We will provide information frequently. We will share everything we can. Everything else you see – a grain of salt.”[3]

The New Zealand Bill of Rights Act.

The Prime Minister’s answer to the question is quite breath taking in its scope. Remembering that everyone has the freedom to impart or receive information, in essence she is saying as follows:

  1. You don’t need any other information – only ours
  2. Don’t listen to anyone else on the topic – dismiss anything other than our messaging – take it with a grain of salt
  3. We are the single source of truth – an echo of Orwell’s Ministry of Truth
  4. If anyone else expresses a point of view dismiss it (effectively silencing contrary points of view)

This has some pretty significant consequences for the nature of discourse. The Prime Minister is limiting discourse and the flow of information to a one-way stream – from the Government to the listeners. Everything else is rumour and should be dismissed. There can be no challenge to the Government’s position. The Government is the sole and single source of truth. In other words, disagree with the Government and you are not telling the truth.

The Fallabilist Rule

The Prime Minister’s answer to the question fails the fallibilist rule for challenging propositions. Remember, no one gets the final say. Yet the Prime Minister is saying that anything that the Government says is truth and uncontestable. It assumes that the Government’s statement of truth is infallible. It ignores the possibility of challenge and indeed suggests that if there is a challenge, it must be false or wrong or to be taken with a grain of salt. It denies the possibility of debate. It denies the possibility of checking because it assumes that there can be no other reality other than that expounded by the government. Such a position leads to atrophied thinking at best or outright error at worst.

The Empirical Rule

The answer to the question challenges the empirical rule on a number of fronts. First it urges listeners to trust the Government. Then it goes on to urge that the Government is the sole source of truth. Can the propositions advanced therefore be subjected to independent verification? In many respects the statement itself claims the weight of Government authority for the truth of the statement. The proposition, in that case, cannot stand on its own and cannot be independently verified. Indeed the challenge in the statement is implicit. Trust us – there is no need for independent verification. The suggestion that any challenge to the statement may be false, questionable or be taken with a grain of salt clearly is designed to discourage independent enquiry or embark on any sort of error checking. Perhaps the most outstanding breach of the empirical rule is that listeners should trust the Government without question. That is a breath taking example of the free pass based on status rather than critical examination.

Conclusion

The Fallabalist Rule and the Empirical Rule are starting points offered by Rauch in the quest for truth or reality within the framework of the Constitution of Knowledge. It is very much a book for our times. It not only examines methodologies for proper discourse and truth seeking but examines the effects upon reality and discourse of misinformation and disinformation (largely seen as tools of the political Right) and the impact of the cancel culture and the silencing of debate (largely seen as a tool of the political Left[4].) It also discusses the means by which proper analysis of topics of discourse may take place. Freedom of expression can be cacaphanous but working within the Constitution of Knowledge may assist in filtering out the noise and arriving at a sensible destination of reality and understanding.

Postscript

In accordance with the Rules of Discourse and the Knowledge Constitution discussed, the material in this article is subject to the Fallibilist Rule and the Empirical Rule.


[1] http://skoveronline.net/dod/index.htm (Last accessed 2 August 2022)

[2] https://www.brookings.edu/book/the-constitution-of-knowledge/ (Last accessed 2 August 2022)

[3] Hansard Debates 2 September 2020  Oral Questions – Questions to Ministers – Question 1 https://www.parliament.nz/en/pb/hansard-debates/rhr/document/HansS_20200902_050580000/1-question-no-1-prime-minister (Last accessed 1 August 2022)

[4] Indeed, the quotation examined above contains resonances of cancel culture – “dismiss anything else”  “Everything else you see – a grain of salt”.

Media Safety? Responding to Tohatoha

On 25 July a new online safety code came into effect. It was drawn up and agreed between a number of online players such as Netsafe, NZTech, Meta (owner of Facebook, Instagram and WhatsApp), Google owner YouTube, Twitch-owner Amazon, Twitter and TikTok.

The Code obliges tech companies to actively reduce harmful content on relevant digital platforms and services in New Zealand as the country grapples with what Netsafe calls a 25 per cent increase in complaints about harmful content over the past year.

It has drawn criticism from InternetNZ and Tohatoha. One of the criticisms is that the Code is very much a work in progress. This cannot be seen as a problem. Any attempt to address harmful content on digital platforms in a dynamic and everchanging environment such as the Internet must be a continuing and developing task that organically morphs to deal with changes in the digital and content ecosystem.

However, there are other concerns surrounding the development of the Safety Code and the way in which it is to be funded and administered, the most concerning being what seems to be a conflict of interest.

As to the development of the Safety Code the concern is that consultation and the process of development was limited. It was conducted primarily through the agency of Netsafe who co-ordinated the development process. Accordingly there seems to have been little input from other agencies such as Tohatoha and InternetNZ, at least until the first draft was released in February 2022. Civil society organisations nor community representatives were not engaged to the same extent. The view is that online safety must be developed with the community at the forefront. The perception is that there was a “coziness” between Netsafe (who will appoint the Administrator) and the corporates.

This criticism is directed primarily at the legitimacy of the Online Safety Code. It suggests quite properly that there should have been wider involvement of the Online Community from the outset rather than being consulted from time to time. The Code would have greater acceptance had it been developed from the ground up with deep involvement by the wider community. Doubtless there were consultations and certainly a draft of the Code was released in February 2022 but that was a call for comment of a developed proposal rather than seeking detailed input on the devising of the proposal itself.

There should have been a greater level of engagement with the wider community in the development of the proposal if only to ensure that there would be consensus on what was ultimately devised and a level of acceptance of the legitimacy of the Code. As matters stand, those who were not deeply involved will be able to stand on the side-lines and criticise as indeed organisations like Tohatoha and InternetNZ are already doing. Given that situation the legitimacy of the Code, at least as far as the wider community is concerned, is questionable.

Another of the criticisms is associated with that of legitimacy and is directed to what is perceived as a conflict of interest.

The key conflict of interest is that NetSafe would be taking funding from the very organisations it is set up to regulate. In addition, the big platforms know that there is a government media regulation review underway. The Code is perceived as an attempt to undermine what should be the public process of the media regulation review which is conducted by Government and any legislation emanating from such review would go through the Select Committee process and the scrutiny of parliament, the media and the general public. The perception is that in developing the review as essentially a non-Government process NetSafe is undermining democratic processes, in collusion with tech platforms.

This criticism has a number of difficulties. Taken to its logical conclusion, it suggests that any form of industry regulation must be government-led. This ignores the various industries and interests that have developed their own methodologies for regulating their own operations in the wider and more public sense. After all, who better to develop a regulatory system than those who have an intimate knowledge of what is to be regulated and who can devise something workable. Involving government would be to add layers of complexity and an absence of specialist knowledge.

But to be fair, this is not the first time that a review of media regulatory structures has been proposed. In 2011 the New Zealand Law Commission released an Issues Paper entitled “The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age”. This was in response to a Government request for a review of the legal and regulatory environment in which New Zealand’s news media and other communicators are operating in the digital era. After a lengthy consultation period which was punctuated by a further paper recommending the enactment of Harmful Digital Communications legislation, in 2013 the final report was released.

What had happened over the lengthy consultation period was that those active in the digital space including mainstream media looked at the regulatory structures that were discussed by the Law Commission in the Issues Paper. There were existing regulatory bodies like the Advertising Standards Authority and the Press Council (which were industry funded and voluntary bodies) and the Broadcasting Standards Authority which was a Government Agency. There were no bodies that dealt specifically with the online space. It was clear to those involved in the dissemination of information online – mainstream media as well as bloggers and the alternative online media – that a regulatory model was on the way. To try and provide an alternative to a government led initiative the Online Media Standards Authority was set up. This was a private organisation, funded by the media itself. Membership was voluntary. It had a complaints process and the Tribunal hearing complaints was chaired by a retired High Court Judge. It dealt with complaints about online media on the same basis as the Press Council dealt with mainstream news organisations.

When the Law Commission report finally came out in 2013 it recommended a new converged standards body, folding the functions of the press council, the Broadcasting Standards Authority and the new formed Online Media Standards Authority (OMSA) into one standards body – the News Media Standards Authority or NMSA.  This would be established to enforce standards across all publishers of news including linear and non-linear broadcasters, web publishers and the print media.

The NMSA and the regulatory model proposed by the Law Commission did not come to pass. As it happened OMSA recognised that in some respects its role was redundant, that there was a very low level of work for it and that it should merge with the Press Council which is what happened. The name of the new regulatory body – still voluntary, still funded by the media – is the New Zealand Media Council or NZMC. The members of the Council are drawn from a wide array and the Chair is the Hon Rayner Asher QC, a former High Court and Court of Appeal Judge.

This example demonstrates that there is nothing sinister in organisations establishing and funding their own regulatory structures, even when there is Government interest going on in the background. As I have suggested before, it is often preferable for an industry to regulate itself rather than submit to some “one size fits all” model proposed by Government.

This, then leads to some concerns that I have regarding the critique delivered by Tohatoha and endorsed by a number of other bodies including InternetNZ.

Tohatoha says

“In our view, this is a weak attempt to pre-empt regulation – in New Zealand and overseas – by promoting an industry-led model that avoids the real change and real accountability needed to protect communities, individuals and the health of our democracy, which is being subjected to enormous amounts of disinformation designed to increase hate and destroy social cohesion.”

The statement goes on to say

“We badly need regulation of online content developed through a government-led process. Only government has the legitimacy and resourcing needed to bring together the diverse voices needed to develop a regulatory framework that protects the rights of internet users, including freedom of expression and freedom from hate and harassment.”[1]

These statements must give cause for concern. The first concern is that it suggests that there should be regulation of content on the Internet. The second concern is that this should be through a government-led process. I have already commented on the problems that Government brings to the table in the field of regulation. For Government to be involved in the regulation of news media or indeed any medium that involves the communication of ideas is something that requires a great deal of care. Already Government is involved in a number of areas, such as the enactment of the Films, Videos and Publications Classification Act and the Harmful Digital Communications Act. In addition there is Government involvement in the broadcasting spectrum surrounding the licensing of frequencies under the Radicommunications Act 1989 (and regulations made thereunder) the Telecommunications Act 2001 and the Broadcasting Act 1989.

It seems to me that Tohatoha has overemphasized its advocacy role and overlooked the implications of what it is suggesting. It is clear that by suggesting regulation of content it means a form of control of content. There is another word for this and it is censorship. That a government should lead such regulatory (censorship) process is of even more concern.

Censorship has always been on the side of authoritarianism, conformity, ignorance and the status quo. Advocates for free speech have always been on the side of making societies more democratic, more diverse, more tolerant, more educated and more open to progress.[2]

Finally there is a concern about a loss of social cohesion. By this term what is really meant is a form of coerced conformity and as John Stuart Mill recognized, the most dire threat to freedom comes from social conformity which leads to a shortage of diversity – of inclination, interest, talent and opinion and makes eccentricity a reproach.


[1] https://www.tohatoha.org.nz/2022/07/statement-on-the-release-of-the-aotearoa-code-of-practice-for-online-safety-and-harms/

[2] Erwin Chemerinsky and Howard Gillman Free Speech on Campus (Yale University Press 2017) p. 27.

Regulating Misinformation

Professor Uri Gal argues (Law News 17 June 2022; The Conversation 10 June 2022) that the time has come for legislative control of big high-tech companies. He observes that the policies of companies such as Meta (Facebook), Google and Twitter can affect the well-being of individuals and the country as a whole. He claims that concerns about the harm caused by misinformation on these platforms have been raised in relation to the Convid-19 pandemic, federal elections (in Australia) and climate change among other issues. He argues that legislative standards will hold these companies to account for harmful content on their platforms.

Professor Gal writes from an Australian standpoint. As it happens the yet to be enacted Online Privacy Bill (Aust) proposes to impose higher levels of regulation on online platforms and social media networks. In New Zealand the provisions of the Harmful Digital Communications Act 2015 provide relief for individuals who are harmed by electronic communications and provide for criminal penalties for those posting content with the intention of causing harm or those who post intimate images without consent.

Professor Gal’s issue seems to be with misinformation. At one point in his piece he poses the question “What is misinformation?” but fails to provide any definition.

The term “misinformation” is a curious one. It is frequently used in commentary, especially in the context of the Covid pandemic. It has been used in a number of official publications (The Edge of the Infodemic: Challenging Misinformation in Aotearoa New Zealand; Sustaining Aotearoa as a Cohesive Society). In those publications it has not been defined. It seems to be assumed that its meaning is understood. Yet the way in which it is used seems to suggest that it is a veto word and that the subject matter to which it refers is to be discounted as “misinformation” without further explanation.

The Disinformation Project has provided definitions of misinformation and disinformation in the paper “The murmuration of information disorders: Aotearoa New Zealand’s mis- and disinformation ecologies and the Parliament Protest”. Misinformation is defined as “false information that people didn’t create with the intent to hurt others”. The wording is clumsy. I think what is meant is “false information that people created without the intention to hurt others”. Interestingly nothing is said about dissemination but I assume that is a given.

Disinformation is defined as “false information created with the intention of harming a person, group, or organisation, or even a company”. The paper goes further and defines malinformation as “true information used with ill intent.” The source for these definitions is given as Jess Berentson-Shaw and Marianne Elliot, “Misinformation and Covid-19: A Briefing for Media,” (Wellington: The Workshop, 2020).

The definitions deployed by the Disinformation Project writers seem to focus upon the intention associated with the content associated with falseness of the information communicated. But then the waters are muddied with the addition of true information communicated with a particular intention. The law places high value on truth. For example it is an answer to defamation. I wonder therefore if the concerns of the Disinformation Project are more focused on the consequences of “mis-dis-mal-information” rather than its quality.

As I have said elsewhere the current drive against “misinformation” seems to me to be another attack of the freedom of expression and upon the ability to express views that may be contrary to those of the majority. A justification for this is often cited as the need for “social cohesion” – another term for blind conformity – but in reality it is really yet another manifestation of well-meaning but misguided “liberals” who know better than everyone else what is good for them. Of more concern must be the way in which “misinformation” is being perceived as a national security issue, attracting the attention and scrutiny of the current Government.

What is more concerning is the apparent drive to restrict the freedom of expression by defining certain forms of expression as harmful.

I have earlier suggested that the term “hate speech” should be abandoned for the more precise label of dangerous speech – speech that incites or encourages physical harm against a group or individual. In that way and with precision in definition any assault on the freedom of expression is limited.

The Harmful Digital Communications Act 2015 addresses harmful speech by way of electronic communication. Harm in that legislation is defined as serious emotional distress.

But can the broad and ill-defined term “misinformation” be the subject of regulation of legislation either directly or by attacking the platform upon which it appears?

Certainly, there have been frequent efforts by the State to control the medium of communication – the printing press and the trade associated with it were the subject of attack on frequent occasions. The State has interfered with other communications innovations such as radio and television so it is not surprising that there should be efforts affoot to address Internet based platforms.

Professor Gal, like many others, advocates legislating for informational standards focussing on misinformation or disinformation. This is an attack on freedom of expression. He and others who advocate similarly would do well to remember that there is a right to free expression, a presumption in favour of it and weighty considerations in terms of harms have to be advanced by those who seek to curtail it. Stifling contentious debate in favour of a “party” or “government” line by labelling the contrary view as misinformation or disinformation, in my opinion, is not good reason enough.

Fear Itself?

­­­­­­­­­­­­Introduction

This is another piece about misinformation and disinformation. I have already written about these issues here and here. In this piece I discuss a paper recently released by the Disinformation Project. I consider the definitions that are used and offer a slightly more nuanced approach to the meaning of the terms “misinformation” and “disinformation”. I then go on to discuss some of the available remedies for problems arising from the dissemination of disinformation and close with a discussion of the way in which fear seems to be weaponised to achieve the goal of “social cohesion”. I close with an observation about vested interests and the campaign against disinformation.

Definitional Issues

The working paper “The murmuration of information disorders: Aotearoa New Zealand’s mis- and disinformation ecologies and the Parliament Protest” from the Disinformation Project[1] captured media attention and is itself an interesting study.

I have previously been rather critical of the way in which the terms “misinformation” and “disinformation” have been bandied about and the authors of the working paper have defined their terms.

Misinformation is false information that was not created with the intent to harm people.

Disinformation is false information that was created with the intent to harm a person, community, or organisation.

The material that is available from the Disinformation Project website does not offer any discussion of how these definitions were settled although it is fair to say that similar definitions have appeared in other publications.

Regrettably, the definitions both suffer from a lack of nuance. The nature of the information is not clarified. The definitions do not state whether or not the information conveyed is a statement of fact or opinion. Furthermore the definitions fail to recognise that often a fact may be determined by a process of inference or conclusion based on other existing facts. It may well be that upon further analysis an inferential conclusion may be erroneous. Whether or not it should be described as false gives rise to another issue. The use of the word “false” suggests a fraudulent, dishonest or morally questionable motive. Yet an inferential conclusion may be reached honestly and in good faith.

The definition of “misinformation” goes on to suggest that the information (which may be incorrect) was created and in that sense the suggestion is that it derived from imagination rather than from a number of other pieces of evidence or sources. In my view rather than use the word “created” the word “communicated” should be used and more properly crystallises the nature of the problem.

A person may develop some information either from imagination or from other evidential sources but may do nothing with it. In that respect the information, irrespective of its correctness, is passive. Only when it is communicated and comprehended by an audience does the information become active.

The definition of misinformation also contains the element of motive. A person may analyse a number of facts and arrive at a conclusion. That conclusion may be communicated. The conclusion may be incorrect or  misleading. But the communication of the information was in good faith as to the correctness of the conclusion or its veracity. In such circumstances, the motive for the communication of the information does not matter.

If one is looking for a more nuanced definition of “misinformation” that incorporates the above matters it could read “misinformation is information that is communicated and that is erroneous.”

That definition avoids the issue of motive and the use of the rather loaded word “false”.

“Disinformation” as defined creates some issues. A simple word to describe disinformation is that it is a lie. However, in the definition the word false is used which, in the context of a lie, is a correct term. I have some difficulty with the issue of intention. The intention must be to harm a person, community, or organisation.

A Matter of Harm

I wonder if harm is the correct term. In the context of the Harmful Digital Communications Act, harm is defined as “serious emotional distress” which would be a satisfactory, albeit limited, definition for a person or a community. However, it would not be applicable to an organisation.

Harm could also mean some form of adverse consequence which causes loss or damage. In this respect the communication of false information with the intention of causing loss or damage resembles a crime involving dishonesty. In this respect it could be argued that section 240(1)(d) of the Crimes Act 1961 is applicable. This reads:

“Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right….. causes loss to any other person.”

Deception is defined as follows:

  •  a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and—
  •  knows that it is false in a material particular; or
  •  is reckless as to whether it is false in a material particular; or
  •  an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or
  •  a fraudulent device, trick, or stratagem used with intent to deceive any person.

Thus it would seem that the communication of false information would fall within the ambit of deception. It is accompanied by the necessary intention and if it causes loss/harm then the offence would be available.

However, as I understand it from the material that is available on the Disinformation Project website and the various commentaries on the “Mumuration” paper the harm that is contemplated is more inchoate and nebulous.

The paper states:

“Disinformation highlights differences and divisions that can be used to target and scapegoat, normalise prejudices, harden us-versus-them mentalities, and justify violence.

Disinformation and its focus on social division are at risk of cementing increasingly angry, anxious and antagonistic ways around how we interact with one another, eroding social cohesion and cooperation.

This has dangerous implications for our individual and collective safety”

Thus, the harm that is perceived is that of divisiveness, antagonism, prejudice and possible physical danger resulting from the use of language that is inciteful. There is concern at the erosion of social cohesion and co-operation.

This theme is picked up by David Fisher in his analysis of the paper. Fisher suggests that the trafficking of false and misleading information should be elevated to the level of national security. With respect I consider such a statement to be unnecessarily shrill and the proposal to be unwarranted. The underlying theme of Fisher’s analysis is that the dissemination of disinformation, some of which originates from overseas sources, poses a threat to established institutions and processes. He cites local body elections and the general election next year which could see a rise in disinformation.

Fisher states:

When it comes to next year’s general election – which attracts much higher public engagement – expect to experience friction as a growing faction with a discordant perception of reality bangs into those who retain faith in the way we live.

The concerns that are voiced by the Disinformation Project and by Fisher express a fear that society is under threat from the spread of disinformation primarily from a cluster of 12 groups of Facebook or social media platforms.

These concerns carry an implicit message that “something must be done”. For some of the disinformation concerns there are already remedies. I categorise these remedies available under existing law as “communications offences”. I have discussed them in an earlier post entitled “Dangerous Speech” but I shall summarise these remedies here.

Existing Remedies

Threats of violence or of harm are covered by section 306 – 307A of the Crimes Act.

Section 307A would seem to be a possible answer to the consequences of disinformation although the language of the section is difficult.

The relevant portions of the section read as follows:

Every one is liable to imprisonment for a term not exceeding 7 years if, without lawful justification or reasonable excuse, and intending to achieve the effect stated in subsection (2), he or she:…..

communicates information—

  •  that purports to be about an act likely to have 1 or more of the results described in subsection (3); and
  •  that he or she believes to be false.

Subsection (2) which deals with the effects that are sought to be achieved reads as follows:

The effect is causing a significant disruption of 1 or more of the following things:

  •  the activities of the civilian population of New Zealand:
  •  something that is or forms part of an infrastructure facility in New Zealand:
  •  civil administration in New Zealand (whether administration undertaken by the Government of New Zealand or by institutions such as local authorities, District Health Boards, or boards of schools):
  •  commercial activity in New Zealand (whether commercial activity in general or commercial activity of a particular kind).

The results that are likely to occur are set out in subsection (3) which reads as follows:

The results are—

  •  creating a risk to the health of 1 or more people:
  •  causing major property damage:
  •  causing major economic loss to 1 or more persons:
  •  causing major damage to the national economy of New Zealand.

However, subsection (4) creates an exception and exempts certain activities from the effect of s. 307A. It reads:

“To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that a person has committed an offence against subsection (1).” (The emphasis is mine)

There has been one case, to my knowledge, that specifically deals with section 307A – that of Police v Joseph [2013] DCR 482.

Other examples of communications offences may be found in the following statutes:

a) the Human Rights Act 1993;

b) the Summary Offences Act 1981;

c) the Harmful Digital Communications Act 2015;

d) the Broadcasting Act 1984; and

e) the Films, Videos, and Publications Classification Act 1993.

f) the Crimes Act 1961.

It should be conceded that not all of the offences created by these statutes deal with the problem of disinformation and I do not propose to discuss all of them and refer the reader to my earlier post on “Dangerous Speech”.

Indeed, the law has been ambivalent towards what could be called communications offences . In 2019 the crime of blasphemous libel was removed from the statute book. Sedition and offences similar to it were removed in 2008. Criminal libel was removed as long ago as 1993.

At the same time the law has recognized that it must turn its face against those who would threaten to commit offences. Thus section 306 criminalises the actions of threatening to kill or do grievous bodily harm to any person or sends or causes to be received a letter or writing threatening to kill of cause grievous bodily harm. The offence requires knowledge of the contents of the communication.

The offence prescribed in section 308 of the Crimes Act involves communication as well as active behavior. It criminalises the breaking or damaging or the threatening to break or damage any dwelling with a specific intention – to intimidate or to annoy. Annoyance is a relatively low level reaction to the behavior. A specific behavior – the discharging of firearms that alarms or intends to alarm a person in a dwelling house – again with the intention to intimidate or annoy – is provided for in section 308(2).

The Summary Offences Act contains the offence of intimidation in section 21. Intimidation may be by words or behavior. The “communication” aspect of intimidation is provided in section 21(1) which states:

Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—

(a)     threatens to injure that other person or any member of his or her family, or to damage any of that person’s property;

Thus, there must be a specific intention – to frighten or intimidate – together with a communicative element – the threat to injure the target or a member of his or her family, or damage property.

In some respects section 21 represents a conflation of elements of section 307 and 308 of the Crimes Act together with a lesser harm threatened – that of injury – than appears in section 306 of that Act.

However, there is an additional offence which cannot be overlooked in this discussion and it is that of offensive behavior or language provided in section 4 of the Summary Offences Act.

The language of the section is as follows:

(1)     Every person is liable to a fine not exceeding $1,000 who,—

(a)     in or within view of any public place, behaves in an offensive or disorderly manner; or

(b)     in any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person; or

(c)     in or within hearing of a public place,—

(i)  uses any threatening or insulting words and is reckless whether any person is alarmed or insulted by those words; or

(ii) addresses any indecent or obscene words to any person.

(2)     Every person is liable to a fine not exceeding $500 who, in or within hearing of any public place, uses any indecent or obscene words.

(3)     In determining for the purposes of a prosecution under this section whether any words were indecent or obscene, the court shall have regard to all the circumstances pertaining at the material time, including whether the defendant had reasonable grounds for believing that the person to whom the words were addressed, or any person by whom they might be overheard, would not be offended.

(4)     It is a defence in a prosecution under subsection (2) if the defendant proves that he had reasonable grounds for believing that his words would not be overheard.

In some respects the consequences of the speech suffered by the auditor (for the essence of the offence relies upon oral communication) resemble those provided in section 61 of the Human Rights Act.

Section 4 was considered by the Supreme Court in the case of Morse v Police [2011] NZSC 45.

In some respects these various offences occupy points on a spectrum. Interestingly, the offence of offensive behaviour has the greatest implications for freedom of expression or expressive behaviour, in that the test incorporates a subjective one in the part of the observer. But it also carries the lightest penalty, and as a summary offence can be seen to be the least serious on the spectrum. The section could be applied in the case of oral or behavioural expression against individuals or groups based on colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as long as the tests in Morse are met.

At the other end of the spectrum is section 307 dealing with threats to kill or cause grievous bodily harm which carries with it a maximum sentence of 7 years imprisonment. This section is applicable to all persons irrespective of colour, race, national or ethnic origin, religion, gender, disability or sexual orientation as are sections 307, 308, section 21 of the Summary Offences Act and section 22 of the Harmful Digital Communications Act which could all occupy intermediate points on the spectrum based on the elements of the offence and the consequences that may attend upon a conviction.

There are some common themes to sections 306, 307, 308 of the Crimes Act and section 21 of the Summary Offences Act.

First, there is the element of fear that may be caused by the behavior. Even although the issue of intimidation is not specifically an element of the offences under sections 306 and 307, there is a fear that the threat may be carried out.

Secondly there is a specific consequence prescribed – grievous bodily harm or damage to or destruction of property.

Thirdly there is the element of communication or communicative behavior that has the effect of “sending a message”.

These themes assist in the formulation of a speech-based offence that is a justifiable limitation on free speech, that recognizes that there should be some objectively measurable and identifiable harm that flows from the speech, but that does not stifle robust debate in a free and democratic society.

Democracy vs Cohesion

The concerns about the effects of disinformation other than those effects which may cause harm relate more to issues of what are described as social cohesiveness. This is a phrase that seems to have been gaining in traction since the Royal Commission Report on the March 15 Christchurch tragedy. It is emphasised in both the “Mumuration” paper and in Fisher’s analysis. The problem with social cohesiveness is that, taken to its ultimate result, we have a society based on silent conformity without any room for dissent, opposition or contrary or contentious opinions.

These elements are essential to a functioning democracy which is cacophonous by nature and which often involves strongly held and differing opinions. Much of the debate surrounding differing opinions can get quite heated and result in what the Disinformation Project claims are angry, anxious and antagonistic arguments. These have been with us for centuries. One need only look at the arguments that have taken place withing the Christian faith over the centuries to understand the passion with which people often approach matters of belief. And, indeed, conflicting opinions within that context would, at the very least be termed “misinformation” or, at worst “disinformation”.

Although the printing press was responsible for the wide dissemination of the contentious arguments surrounding the Reformation and, later in England, the constitutional debates that led to the English Civil War, the dissemination of information afforded by social media platforms is exponentially greater. It is perhaps the delivery of the message, rather than the message itself, that seems to be the root of the problem.

Weaponising Fear

Coupled with this is the fact that the perceived disinformation problem is accompanied by a sense of threat to established institutions which in turn generates a sense of fear and foreboding if the problem is allowed to continue or at least to go unrecognised.

Fear seems to be a widely distributed currency these days. Perhaps older generations have had more experience of the reality of fear having lived through events like various outbreaks of war – Korean, Viet-Nam, Gulf 1 and 2, Afghanistan as a few examples – along with the continuing threat of nuclear conflict which seemed to dissipate in the 1990’s but has now once again loomed and the spectre of terrorism which preceded 9/11 – which was its most egregious example – and which has also been exemplified not only by jihadis but by extremists such as Timothy McVeigh, Anders Breivik and Brenton Tarrant.

But fear is used to market other products. The response to the Covid Pandemic in New Zealand was underpinned by fear, with concerns about potentially high numbers of deaths from the disease if strong measures were not taken. That fear of death and of the consequences of the pandemic underpinned most of the steps taken by the Government and was probably responsible for the complacent response by the populace at least in the first year or 18 months of the pandemic.

Fear can be a strong motivator and often drives extreme responses. Senator Joseph McCarthy played on the fear of a Communist conspiracy in post-World War II USA the reverberations of which were still present in the early 1960’s. The end of the Cold War meant that the fear of the Communist threat was ephemeral but it was shortly replaced by fear of terrorism in the US.

What concerns me is that the fears that are being expressed around misinformation and disinformation suggest that the phenomenon is a new one.  It isn’t but has been exacerbated by the exponential dissemination quality of online platforms.

It is also suggested that there are no remedies to deal with particularly disinformation.

There are and in certain cases the provisions of s. 307A of the Crimes Act 1961 could be deployed along with other remedies discussed if they fit the circumstances.

There are some remedies along with critical analysis of posts that may contain disinformation. To engender a climate of fear is unhelpful, especially when there are existing tools to deal with the issues.

The problem can be summed up by the remark by Franklin D. Roosevelt at his 1933 inauguration –  “the only thing we have to fear is…fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.”

Misinformation occupies a different space and in my view poses no threat. The views expressed may be contentious or contrarian perspectives. Often the information contained in these views will be opinions based on certain facts which may or may not be valid. Statements of opinion appear regularly in mainstream media and are labelled as such. Often they are the subject of debate and discussion in online comments sections or in letters to the editor. This is part and parcel of life in a liberal democracy that places a high value upon the right to impart and receive information – no matter how wrongheaded it might be.

In fact the way to deal with misinformation was referred to in the NZ Herald for 18 May 2020 entitled “’Tectonic shift’: How Parliament protest supercharged NZ’s misinfodemic” which contained commentary on the “Mumuration” paper. The Prime Minister’s Chief Science adviser Dame Juliette Gerrard is quotes as saying:

“New Zealand needs to play its part in the global effort to foster social cohesion and to empower our children to learn skills which make the next generation strong critical thinkers who are as resilient as possible to an increasingly polluted online environment.”

Whilst I would take issue with the “social cohesion” comment I strongly endorse the suggestion that we need to engage in critical analysis and evaluation of the information that we receive. This is something that needs to be done not only by our children but by ourselves.

Social cohesion is a vague and ephemeral concept for defining acceptable behaviour in society. As I have said in an earlier post:

Without the Rule of Law what is being proposed is some form of “understood” code of behaviour based on the concept of a resilient society that has its foundation in social cohesiveness. I would have thought that a clearly communicated and understood Rule system would establish the metes and bounds of acceptable behaviour.

In my view although a peaceable society is an objective that is the goal of the Rule of Law which allows for a variety of behaviours but provides consequences for unacceptable behaviours – either by civil remedies or criminal sanctions. It is far better to have a clearly defined approach rather than a vague and ephemeral one.

Conclusion – Vested Interests.

Finally it is of interest to observe how vexed the mainstream news media get with the issue of mis/disinformation. Because the warnings emanating from the Disinformation Project, the Chief Censor’s Office and the University of Auckland Centre for Informed Futures, the news media are quick to fan the flames of fear and perhaps overdramatise the significance of the message. But perhaps there is an unstated interest that the news media might have in campaigning against mis/disinformation. In the past they have been the organs of reliable information and their editing and checking systems ensure this.

The Disinformation Project study indicates that on 10 February 2022 misinformation (as they define it) overtook NZ Media for the first time. Perhaps mainstream media has some territory to protect in the contest for the information audience and in fact what they are doing is campaigning strongly against the purveyors of mis/disinformation not to alert the public or perform some altruistic public interest goal but to do whatever they can to protect their own turf, their position as the purveyors of “truth” (despite significant column inches dedicated to “opinion”) and, not least, their advertising revenues and income streams.


[1] It is important to note that the Disinformation Project referred to is based at Victoria University, Wellington and is separate and distinct from the Disinformation Project – a American organization based in Fairfax, Virginia. The website of the NZ organization is https://thedisinfoproject.org. That of the American group is https://thedisinformationproject.org

Suppressing Contentious Material – Misinformation – the new Seditious Libel

Abstract

This post is about the way in which contentious and and contraian views have been dealt with by the authorities. It argues that the terms “misinformation” and “disinformation” are convenient umbrella words to describe the expression of opinions that are other than “mainstream” and that are claimed to be harmful, false and injurious. In this respect the attitude and approach to contentious and contrarian views today echoes the attitude of the “Establishment” to similar contrarian views expressed in the late seventeenth and eighteenth centuries. In those days censorship of contrarian material was carried out primarily through the use of Licensing Acts which gave effective control of printed content to Government officials. After the Licensing Acts lapsed, and in the face of Jacobite conspiracies (both real and imagined) contrarian views were dealt with by charging the authors and printers with seditious libel. The penalties, as will be seen, could be very serious. It is my contention that “misinformation” and “disinformation” are the new seditious libel and the interest of the Government, government agencies, the Chief Censor and indeed the mainstream news media suggests that these views should be more than merely discouraged. The implications for freedom of expression are considerable.

In closing this abstract I wish to clearly state that I do not necessarily endorse the content of contrarian or contentious viewpoints but I do support the right of those who hold them to express them.

A Slice of History

After the Restoration of the Monarchy in England the later Stuarts were confronted with a problem. What was to be done about the business of printing. The reign of the Elizabeth I as well as Charles I saw concerted efforts by Star Chamber to regulate not only the content of what was printed but, in the reign of Charles I, how the business of printing was carried on. This did not stop the printing of material critical of the regime and contesting and contentious material in matters of politics and faith.

Attempts to regulate printing continued during Cromwell’s Commonwealth but it wasn’t until 1662 through until 1694 that a new programme for regulation of the press was put into effect. Star Chamber had gone and was not revived. On 10 June 1662 Parliament enacted the “Act for preventing the frequent Abuses in printing seditious, treasonable and unlicensed books and Pamphlets and for regulating of Printing and printing Presses.

The printing trade was strictly regulated and limited to the Master Printers of the Stationers Company of London and the printers of the two universities of Oxford and Cambridge. Those who manufactured type were limited as were the number of Master Printers at any one time.

Anything that was printed had to be licensed by official licensers who had their own specialities – law, history and the affairs of state, divinity, philosophy, science and art. The process of obtaining a license was detailed. Nevertheless, contentious material managed to get through the net despite the best efforts of Sir Roger Le’Estrange, the Surveyor of the Press and the King’s chief enforcer of print licensing. In spite of L’Estrange’s efforts probably no more than half the pamphlet literature which appear carried the official imprimatur. There continued to flow from the presses a stream of publications which in that day and age were considered seditious or offensive and frequently contained lively and vituperative political criticism.

In the seventeenth century both the government and the populace were inexperienced in either digesting the printed page or judging its effects. The reading public was not sufficiently aware of the fact that not all printed material is not necessarily authoritative and the government had not become accustomed to wide public discussion of its acts not had it discovered that unjust criticism often carries its own antidote[1].

The context is important in understanding the seventeenth century state of mind. A monarch had been executed – a serious matter at that time. Several political coteries had been supplanted during the Interregnum. The Oates and Ryehouse plots confirmed the suspicions by the people of Catholic and other conspiracies during the reign of Charles II. The Monmouth Rebellion challenged the established rules of succession. James II was ultimately deposed and forced to flee. After the Glorious Revolution of 1688 the fear of a Jacobite retaliation – the treatment of the regicides in 1660 turned even Charles II’s stomach and it was thought that a restored Jacobite monarchy would do the same – continued to disturb English statesmen down to and even after the establishment of the Hanoverian dynasty. Thus it seemed necessary to control and suppress contentious material.

L’Estrange supervised the suppression of contentious religious material in 1666 and was given elaborate instructions to apprehend the parties responsible for The Whore’s Petition in 1669. L’Estrange was an enthusiastic enforcer of the Statute as Surveyor of the Press especially between 1662 and 1666, and his influence and activity continued when he was appointed Licensor of the Press until 1679

In 1671 orders went out to round up all the unauthorized printers in London and from time to time it was necessary for the authorities to remind the Stationers Company of their obligations. Indeed, L’Estrange’s approach was that printing should be limited to a few trustworthy and reliable printers who were controlled not by the Stationers Company but by an officer of the Crown (L’Estrange himself). L’Estrange was adamant that the Stationers could not be trusted, that their interests were not those of the authorities and in the past they had failed to enforce the regulations

Enforcement was also in the hands of the Secretary of the King’s Council and the various messengers that he appointed. The Secretary was responsible for issuing permissions for searches and seizures which, during the eighteenth century, were successfully disputed most notably in the case of Entick v Carrington [1765] EWHC KB J98; 19 St Tr 1030.

The Regulation of Printing Act had to be renewed every so often although its renewal was opposed or resisted by the Stationers Company. Finally in 1698 the Act was not renewed. The new century saw a number of unsuccessful steps to revive the Act but the main purpose of the Act, the suppression of objectionable printing, had unsatisfactory results. No test had been devised to set out to determine which books could be classed as offensive. In addition, towards its demise the Act demonstrated that the officially appointed censors could not be trusted.

But that was not the end of the censorship or suppression of contentious material. The State had other means by which it could deal with the dissemination of unpopular or critical views. Contrarian opinion could be classified as seditious and not only the author but the printer could be pursued.

In the summer of 1705 a woman wearing what was described as a “vizard mask” delivered a package to David Edwards, a London printer, along with a coded means by which she could be contacted. The package contained an anonymous, illegal and highly contentious pamphlet entitled The Memorial of the Church of England. The argument in it proposed to topple the Government. But Edwards knew well that sedition sold well in the coffeehouses of the City and he set about printing and distributing the pamphlet.

Edwards had carried on his trade on the fringes of what could be considered the printing of contentious material. In the early 1690’s he had printed a Catholic Manual of Prayers and Christian Devotions which contained in it a prayer for exiled Jacobites – supporters of the deposed King James II. In 1695 Edwards’ premises were raided and a run of Catholic prayer books were seized. He managed to escape prosecution but it was after he printed a virulent piece of Jacobite propaganda called The Anti-Curse that he was charged with seditious libel, was fined and sentenced to stand in the pillory on three occasions.

Depending on the mood of the crowd this could be a serious punishment. On occasion it could be accompanied by having one’s ears nailed to the pillory or being pelted with everything from rotten vegetables to rocks by the crowd. When Daniel Defoe was pilloried for seditious libel in 1705 he wrote a poem declaring his innocence which moved the crowd in his favour.

We do not know what happened to Edwards. He kept his ears and remained silent and compliant but by 1699 he was publishing controversial pamphlets with considerable vigour. Even after the death of James II he continued to print pamphlets in support of the Jacobite cause and was known for these activities.

The Memorial which Edwards printed contained material that made suggestions about how one fixed a broken society. It argued that all faction, wickedness and conflict could be traced back to a split in religious loyalties. Society was divided because of the wildly contrary religious sects proclaiming their messages and “truths”. Toleration would make the problem worse. What was needed was the outlawing of what was “occasional conformity” which was a way that non-conformists could occasionally take communion and thus become eligible for public office, and the casting out of dissenters from society. Among the “pretended” members of the Church were Lord Godolphin, Queen Anne’s treasurer, the Duke of Marlborough and Robert Harley, one of the Queen’s Ministers.

The document was an explosive one and Edwards went to considerable lengths to distance himself from association with the document while still printing it. The title page of the work contains no name and provides no information and the ornamentation that he normally used did not appear.

When the publication hit the streets and coffeehouses Harley himself launched an investigation determined to track down not only the printer but also the author of the work. After publication Edwards was nowhere to be found. His wife was imprisoned and all copies of the pamphlet that could be found were burnt. The mysterious lady “in the vizard mask” who delivered the manuscript was never located and to this day the identity of the author is a mystery.

Harley’s political fortunes rose and fell but in 1711 he was enobled as the Earl of Oxford and Earl Mortimer and was Lord Treasurer until his downfall in 1714. Harley was a patron of the arts and left behind a collection of manuscripts containing Renaissance and Anglo-Saxon literature known as the Harleian Collection which is in the British Library.

Harley’s pursuit of the printer and author of the Memorial was driven by the desire to stamp out what was an incendiary and seditious publication and although the tools of print licensing and associated controls were no longer available, nevertheless the desire on the part of the authorities to suppress contentious content remained.

Even after the end of the Stuarts and the installation of the Hanoverians on the throne, the need to control the message by the authorities continued with increasing fervour. James II may have died but he had heirs and there had been, and continued to be, moves by the supporters of the Jacobites to install a Stuart heir on the throne. There was an attempt by James II’s son, the Old Pretender, to regain the throne in 1715 following the death of Queen Anne, and the Young Pretender, Bonnie Prince Charlie, attempted a Jacobite uprising in 1745 which met its end on Drummossie (Culloden) Moor.

In November 1719 John Mathews aged 18, a printer of Jacobite pamphlets, having been found guilty of treason, was dragged on a hurdle to Tyburn, hanged but cut down while still alive, disembowelled and quartered. He was the last printer to be executed in England but he was not the last victim of the censorship of contentious material. It has been suggested that Harley would not have approved of Mathew’s execution. Better that dissdent printers be persuaded to turn on their allies and discover further information for the State. Mathews, however, took his secrets to the gallows.

The persecution of those who propagated contentious views continued. In 1763 John Wilkes published a satirical pamphlet called “The North Briton.” His attacks on the Government in that publication, particularly in the 45th edition, led to his arrest under a general warrant. In January 1764 Wilkes was expelled from the House of Commons but the concern aroused by the general warrants affair led to them being no longer used for the arrest of persons.

Wilke’s publication also featured in the case of Entick v Carrington [1765] 19 St Tr 1030 which established the basis for the requirement of a search warrant to make lawful the entry of law enforcement officers upon private property.

 On 11th November 1762 Carrington and three other named individuals entered a property in Grub Street, a well known area where printing took place, belonging to the Entick and spent four hours there searching all of the rooms, breaking open boxes and going through all of the claimant’s possessions.

They removed one hundred charts and one hundred pamphlets from the property. They were searching for copies of “The Monitor or The British Freeholder”  which was similar to Wilkes’ The North Briton along with other seditious material believed to have been written by Entick. Entick sued Carrington and his associates in trespass

Carrington and his associates were acting under the orders of Lord Halifax who was Secretary of State. Halifax’s orders were described as a warrant but the Court, speaking through Lord Camden held that Halifax had no right under statute or the common law to issue any warrant in such wide terms.

Lord Camden said

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

This attempt by the authorities to stifle Entick publishing contrarian views was unsuccessful.

What History Tells Us

What does this foray into the history of the censorship and various attacks on printers tells us.

First, there have always been contrarian views, and the printing press, like Internet platforms of today, enabled the dissemination of those views.

Secondly, the authorities recognized that not only should those who produced the content be brought to book, but those who enabled the wider distribution – the printers and booksellers – should be deterred and punished, in a similar vein to the cries that go up today about the regulation of Internet platforms

Thirdly, the contrarian views that were expressed were usually minority opinions and were frequently aimed at the establishment. They were also associated with suggestions of “conspiracies”.

In the seventeenth and early eighteenth centuries the authorities went after the printers – the equivalent although not precisely so of today’s platforms in that printers necessarily were aware of what it was that emerged from their presses even although they may not have supported it.

As I have noted, a particular context was the Jacobite threat and the fear of the re-establishment of a Catholic monarch in a state that was largely Protestant with associated fears of retributive persecution. It was a dangerous business to be a Catholic in England in the sixteenth and seventeenth centuries and although there were claims of toleration, the Titus Oates allegations about a Catholic conspiracy and the Gordon anti-papist riots in 1780 showed that toleration was, if anything, skin deep.

Today’s contrarians do not focus upon religious differences but their views run against the flow of the thinking of the majority. The suppression, condemnation or censorship of those views may not be met with the physical sanctions visited upon Mathews for treason, or upon Defoe or Edwards for seditious libel, although some might say that social media may provide a digital analogue for the pillory.

In addition there are other strategies available today to deal with contrarian views. One is to label them with the umbrella word of “misinformation”. Others use official and unofficial channels to demonise contrarians and their opinions.

Contentious Material and its Control Today

The main censorship vehicle in New Zealand is the Films, Videos and Publications Classification Act 1993 (FVPC).

This set up a Classification Office to review and classify material submitted to it, and a Board of Review to which an appeal could be made. 

Prior to its enactment there were three separate regimes with their own criteria: a Chief Censor of Films under the Films Act, a Video Recordings Tribunal under the Video Recordings Act and the Indecent Publication Tribunal under the Indecent Publications Act.

The primary focus of the FPVC Act is upon objectionable publications. Its purpose is to restrict or ban publications which might cause harm to the New Zealand public. A number of agencies are involved in the censorship regime. The Act itself is administered by the Ministry of Justice however the Department of Internal Affairs via its Censorship Compliance Unit is responsible for enforcing its provisions.[2] Both the Police and Customs Office have important roles to play in the Act’s enforcement.[3]

The classification system is central to the operation of the Act. For any material to be objectionable, it must first be classified as such.

The classification process is administered by the Office of Film and Literature Classification, the Classification Office, which is an independent Crown Entity[4] headed by a Chief Censor and a Deputy Chief Censor.

The Classification Office is not responsible for all media. Broadcasting, for example is covered by other legislation.[5] However, if a broadcaster wishes to show a film that has been cut or banned by the Classification Office the broadcaster must obtain a waiver from the Chief Censor to do so.[6]

Special provisions were recently enacted to deal with the classification of streaming and on-demand media from providers such as Netflix, Neon and Disney.

The Annual Report from the Classifications Office for 2019/20 observes that there was a rise of violent and potentially extremist material submitted to the Office, which is handled by a specialist Countering Violent Extremism team.

Following the Christchurch terrorist attacks, it was noted that there was a shift in the ideological subject matter of potentially extremist material submitted – with a greater volume of material relating to white supremacy, the far-right, and online hate speech, compared to material related to Islamic fundamentalism.[7]

The Classification Office Annual Report for 2020-2021[8] observes a continuation of this trend. It states:

“there has also been a noticeable increase in publications that deal with violence and violent extremism. The Classification Office also expects to see an increase in such material submitted by the Department of Internal Affairs as their Countering Violent Extremism team becomes fully operational.”

In addition the Classification Office released a report entitled The Edge of the Infodemic: Challenging Misinformation in Aotearoa. It considered that given what it described as a wave of “misinformation” which the Report unhelpfully does not define the Office needed to better understand how New Zealanders felt about misinformation and what they think should be done. By doing so it is hoped to start a conversation about what better, more inclusive solutions might look like.

The Office hastens to point out that addressing misinformation doesn’t mean telling people what to think, or stifling debate with more censorship – but it claims New Zealanders want to know they can trust the news and information they’re getting, and government can work together with communities to combat misinformation. It suggests that there must be better ways for government, community, and online platforms to come together to prevent harm.

It suggested steps that can be taken to stop the spread of misinformation such as looking at the source of an article before sharing it, questioning the perspectives represented in it and feeling comfortable about discussing the content with another trusted person.

But having said that the issue of misinformation is not about telling people what to think or stifling debate. Research can support cross-government collaboration on potential policy and regulatory responses, including a broad media regulatory review, aid education initiatives, and develop information and resources for the public.

Lately the Chief Censor, Mr. David Shanks, has been calling for a widening of his brief. At an Otago University conference about ‘Social Media and Democracy’ in March 2021, Mr. Shanks told the conference the way we regulate media is not fit for the future.

“We can be better than this. I think there’s some very obvious moves that we can do here to make the current regulatory system and framework more coherent for a digital environment,”[9]

As part of an overall review of regulatory structures surrounding harmful information dissemination, the Government released a discussion paper on hate speech and at the same time the Chief Censor released the report referred to above – “The Edge of the Infodemic”[10] which in essence is a survey about how citizens are concerned about misinformation. The internet and social media are identified as key sources – while experts and government are trusted more than news media. 

The Chief Censor says it shows the need for urgent action. It is quite clear that some of the concerns that have been raised about the development of “misinformation” coming as they have alongside moves by the government to address “hate speech” would suggest a shift in attitude towards the robust discussions that characterise a liberal democracy. Indeed there seems to be a general move towards the position that misinformation is in fact harmful content that should be the subject of some form of regulatory response.

Given that the meaning of objectionable is clearly set out in section 3 of the Films Videos and Publications Classification Act 1993 it seems that the Chief Censor is of the view that his powers should be extended beyond that meaning.

In an article by Kristin Hall of 1News dated 3 April 2022 entitled “Misinformation: How social media turned protest into a problem” Mr Shanks was asked to comment on the increase in “misinformation” since his Infodemic report. He commented that

“We’re seeing an increase in the number of bad actors who have learned how to use digital platforms to spread their distrust of public institutions and the media, that means they create followers who really only believe what they say.”

He claimed that the Government needed to push for tighter regulations of platforms that promote misinformation and then went on to cite the Christchurch terror attack.

Mr Shanks quite rightly deemed the live streamed video of that attack as objectionable. It clearly fell within the definition contained in section 3 of the Films Videos and Publications Classification Act 1993 in that it obviously promoted or encouraged criminal acts or acts of terrorism.

However, to equate that video with “misinformation” – a term that Mr Shanks has not defined and which clearly depends on its own circumstances – is in my view an overreach and it is to be hoped that Mr Shanks does not succeed in having objectionable content include the umbrella term “misinformation”.

In an article by Toby Manhire entitled “Inaction on NZ ‘Nuremberg’ site sparks calls for overhaul of system ‘not fit for purpose’” the author calls out the Domain Name Commissioner for failing to cancel the domain name Nuremberg NZ. The website lists, ranks and depicts New Zealand politicians, academics, scientists and journalists and promises “judgement day is here”. Manhire’s complaint is that the site has been left untroubled by New Zealand regulatory and enforcement agencies, a lack of action that, experts say, exposes shortcomings in the apparatus for responding to dangerous online activity.

In the article Manhire observes that the Chief Censor had not received any complaints about the site. Mr Shanks is quoted as saying

“We have been speaking with other agencies, who have been receiving complaints, and we are aware of the very serious concerns about it. The bar for an objectionable (banned) publication is necessarily very high, and our 1993 legislation is not well suited to responding to the kind of harms presented by websites of this kind.  We are committed to working with other regulatory authorities to determine what we can do with the tools available.”

It is difficult to discern what it is about the site that Manhire considers to be dangerous or why the Chief Censor should consider the website to be harmful, It is a ridiculous and stupid form of publication at worst that gives a voice to those who wish to express a contrary opinion about certain named individuals. The site seems to be more aligned with elements of the “sovereign citizen” philosophy (I wouldn’t call it a movement) with which I am familiar having had to deal with such individuals in my Court.

Calls to limit the spread of misinformation are not restricted to the Chief Censor.

Stephen Judd of FACT Aotearoa – the Fight Against Conspiracy Theories – considers misinformation to be harmful and claims that some of those involved in misinformation are promoting “completely different media and information universes”. Mr Judd would like to see misinformation propagators’ accounts shut down and in Kirstin Hall’s article is quoted as saying

“”If people who are spreading misinformation are prevented from using mainstream platforms like Facebook, they may go elsewhere but the good thing about that is that they may be harder to find, which means they have to work harder to get a platform for their ideas. So even there that can have a real effect.”

The implications of such a statement for the freedom of expression are chilling. One wonders what Mr. Judd’s response would be if a similar suggestion were to be made about his platform.

Concerns about “misinformation” start at a Government level. At the end of the Parliament grounds occupation the Prime Minister commented “One day it will be our job to try to understand how a group of people could succumb to such wild and dangerous mis- and disinformation.”

When asked whether or not misinformation was a national security issue she did not respond to the question but went on to say “Government agencies are working together to look at how we can better combat the spread of mis- and disinformation and it’s very clear that it’s a whole-of-society approach that’s needed.”[11]

One hopes that in her deliberations the Prime Minister does not lose sight of the provisions of section 14 of the New Zealand Bill of Rights Act protecting the freedom of expression. Or perhaps her long tenure on the “podium of truth” means that she believes her own publicity. It is well known that politicians rarely answer “yes/no” questions with a yes or no and that “spin” is chapter one of the political playbook.

It is therefore encouraging that the head of the SIS Rebecca Kitteridge recognizes the importance of freedom of expression. She says the NZSIS is interested in disinformation when it engages violent extremism or is carried out by a foreign state. “Freedom of speech is a human right,” she says, so the security services step carefully.[12]

Rebecca Kitteridge said “indicators of violence” included someone with an unusual interest in a crowded place or symbolic location or who was seeking explosive material, firearms or knives without good reason[13]. One wonders if this will mean that an PhD student researching material for a thesis on the tools and methods of terrorism will come under the SIS microscope.

However, other Government agencies seem to have an interest in misinformation including the Government’s Combined Threat Assessment Group (CTAG)[14].

Although threats to life, limb and property are properly the concern of Government and law enforcement, and it is necessary that investigations of such threats are carried out it must be a matter of concern that often hyperbolistic chatter is being lumped under the heading of misinformation and that those who engage in such activity may be under suspicion.

Elements of mainstream media have joined in the calls to deal with what is perceived as a rising tide of misinformation. Both Stuff and the New Zealand Herald emphasise that they are trusted sources of information, thus setting themselves above alternative contrarian or contentious opinions which fall into the classification of misinformation.

New Zealand Herald Senior Reporter David Fisher appeared on the Herald Front Page podcast commenting on the dangerous online world of the man charged with threatening to kill the PM. After making some desultory comments about the accused, Fisher wisely steered the discussion away from a matter which was sub judice but went on to discuss at some length the extent of the mis/disinformation realm that was available on the platform Telegram.

Fisher gave an interesting and informative background to those who frequented some of the Telegram messaging streams and there is no doubt that there are some rather strongly expressed contentious and contrarian views expressed on the platform. However, as has been the case in the discourse about “misinformation” there is no attempt to either define the term or clearly state why it is that certain content amounts to misinformation.

Much of the material that is referred to by researchers in the field[15] who seem to be regular “go to” people for the mainstream media is lumped in under the generic term of misinformation but once again little effort is made to define the term or identify the content.

Fisher’s research is extensive and is documented in a couple of recent articles in the NZ Herald “Domestic Terrorism: NZ security agencies’ public guide as violent online talk increases” NZ Herald 9 April 2022 and “Violent talk and fake news: how extremism went mainstream” NZ Herald 9 April 2022. I am indebted to him for some of the material that I have used for this piece.

In his “Violent Talk” piece Fisher identifies some of those who are engaged in what he characterizes as “misinformation.” He refers to Voices of Freedom organisers Claire Deeks, Libby Johnson and Alia Bland and the venerable blogger Cameron Slater once known as Whale Oil with whom I once had dealings. He also refer to the somewhat hysterical Kelvyn Alps of the Counterspin website. In researching this piece I spent a couple of hours (time lost which I shall never recover) watching Mr Alps.

Anyone with a modicum of intelligence would recognize that Alps comes from a long line of angry anarchists (the stereotypes generated in many 19th century cartoons come to mind although they had more hair atop than Mr Alps and their beards were more unkempt than Mr Alps neat goatee) who have nothing good to say about any form of authority (other than his own) and who spends his time propogating his rants.

To suggest that he might have any credibility in motivating the overthrow of the establishment is laughable. The fact that he seems to attract an audience (of which, statistically, I regret to say I am now one) is meaningless. He may have disciples and there may be a few poor souls who hang on his every word but I doubt they are going to blow up government buildings or take up a gun.[16]

I wonder if perhaps Mr Fisher overstates the case or has substituted the earlier fear that everyone had of COVID-19 for some other target – in this case those who propagate the undefined “misinformation”. This fear that is a subtext of recent news media interest in this phenomenon should not be allowed to grow into some form of New Zealand equivalent of the activities of Senator Joseph McCarthy and his communist witch hunt of 1950 – 54 which formed the inspiration for Henry Miller’s play The Crucible.

The personalisation of attacks upon those who express contentious or contrarian views is further evidenced by an article appearing in Stuff for 10 April 2022 by Kirsty Johnson about Sue Grey, a well known contrarian from Nelson who is also a lawyer. Johnson starts her article benignly enough in what may be characterized as a “profile piece” but then mounts an attack on her subject, observing that a complaint about professional misconduct to the New Zealand Law Society has been escalated to Lawyers and Conveyancers Disciplinary Tribunal.

There can be no doubt from the article that Ms Grey espouses some contentious and debateable causes which one is free to do in a liberal democracy but many of her views are systematically demolished. I don’t have much time for Kirsty Johnson’s journalism but in this case she at least has avoided the umbrella term of “misinformation” and clearly rebuts with evidence where it is that she says Ms Grey falls into error. That at least is refreshing in the current mainstream media campaign against “misinformation”.

In making these observations I am not unmindful of the importance of the freedom of the press and a journalist’s freedom of expression. However, I cannot avoid the thought that there may be an agenda involving carving out the informational space so that there is but one authoritative source – the mainstream media – for information and that there is no room for contrarian or contentious views. There are, of course, economic imperatives which drive this. In addition there is the matter of the unfortunate optics involving the availability of some $55 million from the Public Interest Journalism Fund managed by NZ On Air but emanating from Government cofferss for news media purposes, presumably to ensure the publication of truth.[17]

Misinformation – the new “seditious libel”

So what has changed since the seventeenth century in the way is which we deal with contrarians and their contentious views? It seems to me that the term “misinformation” is a modern equivalent of the charge of seditious libel that was employed by the later Stuarts to silence dissent or contrary or contentious viewpoints and one wonders whether or not we have made very much progress as a society. Are the Chief Censor, FACT Aotearoa, the Disinformation Project and elements of mainstream media the twenty-first century equivalents of Sir Roger L’Estrange? Is the fear of “violent extremism” the parallel to the fear of the Catholic Jacobites of the eighteenth century?

Misinformation seems to be used as a veto word which like other emotive terms such as racism or sexism are ways of avoiding any confrontation with the argument in much the same vein as the way in which the Prime Minister deflects an uncomfortable question by disagreeing with the premise of it.

I wonder too whether or not the concerns about misinformation are driven to a certain degree by an air of panic that in fact there are contrary and contentious opinions at large in the community and that they are being voiced and in some cases gaining traction.

The added difficulty is that there seems to be an assumption that citizens are unable to make up their own minds about the validity of certain content and that essentially the whole of society is gullible and needs to be protected from itself. This is no more than a form of, at best, patronizing paternalism driven by a high level of arrogance fostered by a strong belief that the few know what is best for the many.

What seems to be developing is a form of association between a contrary or contentious opinion which rapidly becomes associated with groups who are anti-vaccination. This in turn automatically translates to a suggestion that those who express contrary or contentious opinions are conspiracy theorists who have fallen into a rabbit hole. From there is it but a short leap of faith to the suggestion that those voicing contentious or contrary opinions are dangerous and may even be terrorists.

Some of the more extreme expressions of contentious or contrarian opinions may come close to committing an offence against existing laws and if that can be proven beyond a reasonable doubt then well and good. But to lump all those who express a contrary or contentious view together with the extremists is a gross generalisation and dead wrong.

What is of concern is that the current campaign – for that is what it is – against misinformation is directed against those who express a contrary view. It is almost as if a form of “group-think” is being encouraged and those who do not conform are eroding the peace order and good government of New Zealand. What such thinking ignores is the importance of freedom of expression in a democracy. Freedom of expression allows a cacophony of views – indeed it encourages it. Section 14 of the New Zealand Bill of Rights Act 1990 states that the freedom of expression is not only to impart information but to receive it. It says nothing about the quality of that information. To try and restrict of suppress contentious or contrarian views eliminates a vital element of our democracy.

Of course our government doesn’t want to be challenged. Of course they don’t like to be told they are wrong. Of course it is concerning if the facts are interpreted to arrive at a conclusion that differs from that of the mainstream. But that is the system that we have got and that we enjoy. Everyone has the same ability regardless of rank, office, position in society or background to freely express a point of view and the Internet – that democratiser of information – allows their voices to be heard. And for it to be suggested that the Government is the only arbiter of truth and that contesting premises may be dismissed is to start to travel an Orwellian path.

To conclude, the current drive against “misinformation”  – today’s seditious libel – seems to me to be another attack of the freedom of expression and upon the ability to express views that may be contrary to those of the majority. A justification for this is often cited as the need for “social cohesion” – another term for blind conformity – but in reality it is really yet another manifestation of well-meaning but misguided, paternalistic and patronising “liberals” who know better than everyone else what is good for them.


[1] This form of patronizing paternalism persists today in the assumption that people cannot apply critical processes to the assessment of material emanating from Internet based platforms.

[2] For more detail see https://www.dia.govt.nz/Censorship-Our-Role

[3] See Films, Videos, and Publications Classification Act 1993, s 103 making every constable an Inspector of Publications and s 118A (3) (powers given to Customs officer).

[4] Films, Videos, and Publications Classification Act 1993, s 76.

[5] Broadcasting Act 1989.

[6] Broadcasting Act 1989, s 4(2).

[7] Classification Office Annual Report 2019 – 2020 p. 10 https://www.classificationoffice.govt.nz/assets/PDFs/2020-Classification-Office-Annual-Report.pdf (Last Accessed 30 August 2021)

[8] https://www.classificationoffice.govt.nz/documents/127/Annual_Report_-_Classification_Office_2021.pdf (Last Accessed 5 April 2022)

[9] Battle Against Online Harm beefs up censor’s power” Media watch 21 March 2021 https://www.rnz.co.nz/national/programmes/mediawatch/audio/2018788055/battle-against-online-harm-beefs-up-censor-s-power

[10] https://www.classificationoffice.govt.nz/assets/PDFs/Classification-Office-Edge-of-the-Infodemic-Report.pdf (Last accessed 30 August 2021.

[11] David Fisher “Violent talk and fake news: how extremism went mainstream” NZ Herald 9 April 2022 Big Read: Violent talk and fake news – how extremism went mainstream – NZ Herald (Last accessed 10 April 2022)

[12] Quoted in David Fisher “Violent talk and fake news: how extremism went mainstream” NZ Herald 9 April 2022 Big Read: Violent talk and fake news – how extremism went mainstream – NZ Herald (Last accessed 10 April 2022).

[13] David Fisher “Domestic Terrorism: NZ security agencies’ public guide as violent online talk increases” NZ Herald 9 April 2022 Domestic terrorism: NZ security agencies’ public guide as violent online talk increases – NZ Herald (Last accessed 10 April 2022)

[14] It may be of interest that an earlier piece of mine about misinformation which appeared on my blog was accessed by no less a body than the Department of Prime Minister and Cabinet. I have not scanned my home for monitoring devices and have not seen people in overcoats and wearing slouch hats following me around the Westfield Mall in Newmarket or swimming in the lane next to me at the pool so I can only assume it was coincidence.

[15] Such as Stephen Judd’s FACT Aotearoa and Sanjana Hattotuwa of the Disinformation Project

[16] As an example of the over-reaction of the authorities to a message posted on the Internet threatening to blow up buildings if a law relating to copyright was enacted see Police v Joseph [2013] DCR 482.

[17] In this regard the line by Pilate in “Jesus Christ – Superstar” “we all have truths – are mine the same as yours” comes to mind.

Limiting RATs

This post is a form of companion piece to an earlier post “Jacinda’s Labyrinth” which examined some of the legal underpinnings to the management of the COVID pandemic in New Zealand. In this piece I consider the way in which the law has been deployed to manage (or prevent) the use of rapid antigen (RAT) tests

In February 2022 some 30,000 JusChek Rapid Antigen Tests (RAT) were seized by Customs. They had been ordered by Auckland Grammar School and were proposed for school use. It appears that the school was being pro-active in attempting to monitor occurrences of COVID-19 within the school itself. It seems like it was a responsible approach[1].

So why were the tests seized? This was not part of the Government’s “consolidation” (read “sequestration”) of ordered tests. The reason for the seizure was that the tests were banned.

In this post I examine the processes that lie behind the banning of RATs and suggest that the process demonstrates the way in which the Government and the Ministry of Health are determined to maintain strict control of the pandemic and the tools available to counter it.

The starting point must be the COVID-19 Public Health Response Act 2020. There are two important sections – section 9 and section 11. Section 11 gives the Minister the power to make certain Orders. Section 9 sets out the requirements for making such Orders.

Those requirements are:

(a) The Minister must have had regard to advice from the Director-General about—

(i)  the risks of the outbreak or spread of COVID-19; and

(ii)  the nature and extent of measures (whether voluntary or enforceable) that are appropriate to address those risks; and

(b)  the Minister may have had regard to any decision by the Government on the level of public health measures appropriate to respond to those risks and avoid, mitigate, or remedy the effects of the outbreak or spread of COVID-19 (which decision may have taken into account any social, economic, or other factors); and

(ba)  the Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990; and

(c)  the Minister—

(i)  must have consulted the Prime Minister, the Minister of Justice, and the Minister of Health; and

(ii)  may have consulted any other Minister that the Minister (as defined in this Act) thinks fit; and

(d)  before making the order, the Minister must be satisfied that the order is appropriate to achieve the purpose of this Act.

Once there has been compliance with those requirements the Order may be made under section 11. There is nothing in section 11 that provides for a power to make an Order prohibiting the import of certain testing kits. The closest that I can find – and it would require a rather generous interpretation – would be in section 11(1)(a) which provides that the Minister may make an order for the following purpose

  •  to require persons to refrain from taking any specified actions or to take any specified actions, or comply with any specified measures, so as to contribute or be likely to contribute to either or both of the following:
  •  preventing, containing, reducing, controlling, managing, eliminating, or limiting the risk of the outbreak or spread of COVID-19:
  •  avoiding, mitigating, or remedying the actual or potential adverse public health effects of the outbreak of COVID-19 (whether direct or indirect):

The examples contained in section 11(1)(b) do not include importing prohibited items nor providing for an import prohibition. A broad interpretation may be that the Order prevents a specified action (the importation of prohibited items) to avoid actual or potential adverse public health effects of the COVID-19 outbreak.

One further basis for making the Order may be found in section 11(1)(d)

…to require specified actions to be taken, require compliance with any specified measures, or impose specified prohibitions, so as to contribute or be likely to contribute to either or both of the following:

  •  preventing, containing, reducing, controlling, managing, eliminating, or limiting the risk of the outbreak or spread of COVID-19:
  •  avoiding, mitigating, or remedying the actual or potential adverse public health effects of the outbreak of COVID-19 (whether direct or indirect):

Once again a generous interpretation is required.

Clearly it is envisaged that there can be restrictions on the importation of goods. Section 11(4) provides

“All goods prohibited from import under a COVID-19 order are deemed to be included among goods prohibited from import under section 96 of the Customs and Excise Act 2018, and the provisions of that Act apply to those goods accordingly.”

The COVID-19 Public Health Response (Point-of-Care Tests) Order 2021 came into force on 22 April 2021. The order prohibits a person from importing, manufacturing, supplying, selling, packing, or using a point-of-care test for SARS-CoV-2 or COVID-19 unless the Director-General of Health has:

  • authorised the person’s activity; or
  • exempted the point-of-care test from the prohibition.

The Order replaces a Notice issued pursuant to section 37 of the Medicines Act 1981. Section 37 gives the Minister the power to prohibit the import of medicines.

The section in full states:

  •  The Minister may from time to time, by notice, prohibit the import, manufacture, packing, sale, possession, supply, administration, or other use of medicines of any specified description or medical devices of any specified kind, either absolutely or subject to such conditions as he thinks fit, for any specified period not exceeding 1 year; but he shall not exercise this power more than once in respect of medicines or medical devices so specified.
  •  Where the Minister gives a notice under subsection (1), he shall, on the written request of any person, state his reasons for doing so.
  •  Every person commits an offence against this Act who contravenes any notice given under subsection (1).
  •  A notice under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

By Notice dated 22 April 2020 the Minister of Health prohibited the importation, manufacture, packing, sale, supply or use of any kits and/or other test materials intended for use as point of care testing for COVID-19 infection or for post-infection confirmation using an antigen or antibody detection system unless the particular test kit and/or test materials.

The only exceptions were kits approved by Medsafe and to be used for testing by a specified category of health care professionals.

The Notice expired on 22 April 2020.

It was on that date that the COVID-19 Public Health Response (Point-of-care Tests) Order 2021 came into force. That order provided for a prohibition on the importation, manufacture, supply, sale or use of a point of care test unless the person activity was authorized under clause 8 of the Order or the test was exempt from the prohibition under clause 9.

Clause 9 gives the Director-General of Health the power to exempt any point-of-care tests from the prohibitions contained in the Order. The criteria for exemption are that the Director-General must be satisfied that:

  •  the point-of-care test or class of point-of-care tests is sufficiently accurate and reliable so as not to pose a material risk to the public health response to COVID-19; and
  •  the exemption is not inconsistent with the purpose of the Act; and
  •  the exemption is no broader than is reasonably necessary to address the matters giving rise to it.

The exemptions that have been granted are contained in the New Zealand Gazette and the most recent one is dated 24 February 2022[2]. This exempts a total of 11 Rapid Antigen Tests from the prohibition.

The Notice dated 24 February 2022 replaces another notice published on 4 February 2022 and dated 3 February 2022. In turn that notice approved for exemption 11 RATS.

There is something of a history of Notices under the Point of Care Order. These preceding Orders are dated 28 January 2022, 25 January 2022 and 21 January 2022. These earlier orders related to the authorization of persons who may import RATS or expanding the import and supply of RATs.

If the RATs referred to in the opening of this piece were seized in the first 8 weeks of the year a review of the Orders reveals that the JusChek brand of RATs was not approved for import. However, the JusChek RATs had been approved in Australia by the Therapeutic Goods Administration. It seems curious that RATs that were approved in one jurisdiction are deemed unfit for purpose in another.

There are a number of issues that arise from this unusual situation.

The first is the blanket prohibition on the importation of RATs unless they have been approved. This is not unusual in and of itself but in the context of the COVID pandemic is another example of this Government’s approach to the law which is that everything is prohibited unless it is permitted.

The normal approach is that everything is permitted unless it is prohibited. Once again the Government has turned legal theory on its head.

The second issue lies in the approach of the Government to the use of RATs. Throughout the pandemic the Government and the Health Mandarins have consistently turned their faces from advice that would prove beneficial to the New Zealand public and in the management of the pandemic.

This includes apparently ignoring the report of Sir Brian Roche and Heather Simpson which was made available in September of 2020 but for some inexplicable reason was not released until mid-December 2020. It is claimed that some of the recommendations were implemented or underway but these were difficult to discern.

Then there were the various efforts by Sir Ian Taylor directed to a more nimble and nuanced approach to managing the pandemic. His suggestions were directed towards issues around self-isolation, the use of RATs, alternatives to MIQ and other alternatives. It is clear that his approach does not coincide with Government policy nor indeed the Government narrative to the point that Taylor claimed that he had been asked by the Associate Health Minister to stop writing “bad faith” columns. It seems that anything that is slightly critical of Government policy or that departs from the “party line” is “bad faith”.

The resistance to any form of testing other than the slow and unpleasant PCB test was continuous until the onset of the Omicron variant when it became abundantly clear that the systems in place surrounding PCB testing were quite inadequate to meet the increased demand as a result of the highly infectious new variant. The Director-General of Health had to fall on his sword and apologise for the delays that were being occasioned in the return of PCB test results. Clearly the Government wasn’t responsible, for if it was it would be yet another example of failure to deliver a solution.

Once it became apparent that RAT tests were going to be necessary to keep a track of cases and to (more importantly) allow citizens to find out promptly whether or not they had the disease, things began to move. One only has to look at the flurry of activity as the Director-General started to grant exemptions to the RAT import and use prohibitions which I have detailed above.

The justification for the tardy response has been two-fold. PCB testing is a very accurate way of detecting COVID infections. That is the first justification for staying with the present system. The second reason for the tardy – almost reluctant – response is that RAT tests are not as accurate as the PCB tests.

There might seem to be another reason. PCB testing takes place at testing stations. Those being tested have to check in and provide their details including their health number. The test results can therefore be traced to an individual who may or may not have the disease. And, of course, the tests – managed by the Health Department – provide data that the Department claims is necessary to advise Government as to policy surrounding the pandemic.

RAT testing presents a different scenario and one where the Health Mandarins have no control at all. RAT tests are available over the counter. They can be conducted in the privacy of the home rather than under the surveillance of a PEP clad functionary. And more significantly it is left to the individual as to whether the results are communicated to the authorities. There are a number of reports of people who are NOT reporting a positive test and I imagine that there are a number of reasons.

If I may digress for a moment for the recording of the results of RAT tests may be accomplished through use of the My Covid Record application. Indeed most of the advice about ascertaining information or communicating outcomes specifies an online response.

This requirement is based on a number of assumptions. One is that everyone – and I mean everyone because no one is immune from COVID – has access to an online provider and has the necessary hardware be it a smart phone, laptop or desk top computer by which this access can be accomplished. This is an appalling bourgeois assumption which seems to underpin many aspects of modern communications and seems to be based on the assumption on the part of officials that, because they have access to online systems everyone else may have similar access. Although uptake of the Internet in New Zealand is high that attitude fails to recognize that there is a digital divide in this country where a proportion of the populace do not have access to online systems or are not adept in their use. The provision of an 0800 number assumes that a telephone system will work efficiently but it does not. The system is overburdened and waiting times for pickup are reportedly very long. Yet another piece of bad planning on the part of the Government and its agencies.

Another feature of the individual management of the pandemic – for it is clear that the Government can no longer control the direction of the disease – is the refusal of the Health Mandarins to consider not only a wider variety of RAT tests – such as were sought by the Auckland Grammar School – but also any other form of testing such as saliva testing. I understand that there has been very limited use of saliva testing for COVID – for border workers, health care workers and those in MIQ when it was still required. But saliva testing is not more widely available. Furthermore saliva can be used as a sample for rapid antigen testing. It seems curious that this form of detection is not available.

The slow response to allowing RATs seems to echo the slow response to the introduction of vaccines. It has long been my view that the harshness to the vaccine mandate programme could well have been mitigated by having the unvaccinated undergo a RAT before entering, say, a workplace, and if they test negative all is well. Of course the Health Mandarins say that RATs are inaccurate and that the odd case may slip though but the reality is that RATs are the prime source of detection. Did they suddenly become more accurate? I do not think so. I can understand the reaction of the principal of Auckland Grammar School. In good faith he, no doubt under advice, took steps to ensure health and safety of those for whom he was responsible. The school wanted to be proactive about offering students and staff another layer of protection. His bona fide efforts were thwarted by a punctilious bureaucracy that will admit of no other way than that which it decrees. It seems that it is the Government’s way or the highway when it comes to dealing with COVID. It is yet another example of the failure by the authorities to act reasonably and nimbly in the face of this pandemi


[1] Covid 19 Omicron outbreak: 30,000 rapid antigen tests seized at borders, high school says situation ‘nonsensical’ NZ Herald 6 March 2022 https://www.nzherald.co.nz/nz/politics/covid-19-omicron-outbreak-30000-rapid-antigen-tests-seized-at-borders-high-school-says-situation-nonsensical/CMAIV2FSHCVEIL44MWU3UENMG4/ (Last accessed 7 March 2022)

[2] https://gazette.govt.nz/notice/id/2022-go587 (Last accessed 7 March 2023)

Talking About “Misinformation”

The following was written some weeks ago before the Parliament Garden Ocupation began, Since then the term “misinformation” has been bandied about largely as a motivating basis for the protesters and occupiers.

But misinformation is not new, by any stretch. The advent of the printing press and the growth in the amount of printed material rocketed to 4,038 items printed in 1642 alone – just before the beginning of the English Civil War. Clare Jackson in her book “Devil-land: England under seige 1588 – 1688 states

“Moreover all information – whether audaciously printed or whispered rumour – could be denounced as erroneous, misleading or damaging. Royal courtiers and foreign ambassadors alike detected an unwelcome rise in “false news”, fearing that London’s Royal Exchange could rival the Rialto in Venice or the Piazza Navona in Rome as a notorious site for rumour-mongering”

Chris Keall in the NZ Herald (4 March) sets out ways to address “misinformation” while failing to define the term. In short, he subscribes to the suggestion by Don Christie that all that is needed is for existing laws to be enforced.

In the “bad old days” the information technology of the printing press was regulated quite severely especially during the reign of Charles II and James II with the enactment of the Licensing Act 1662. This set up a rigorous licensing regime that came to an end in 1696 when the Act was not renewed. An unintended consequence of that was the enactment of the Statute of Anne 1710 which formed the foundation for our modern law of copyright.

Plus ca change?

The term “misinformation” is a curious one. It is frequently used in commentary, especially in the context of the Covid pandemic. It has been used in a number of official publications (The Disinformation Pandemic; Sustaining Social Cohesion in Aotearoa New Zealand). In those publications it has not been defined. It seems to be assumed that its meaning is understood. Yet the way in which it is used seems to suggest that it is a veto word and that the subject matter to which it refers is to be discounted as misinformation without further explanation.

My training as a lawyer and as an academic has taught me to question assumptions. As a lawyer I have been concerned in establishing a proposition by supporting it with specialized information which lawyers call evidence. As a judge I was required to give reasons for decisions. As a PhD candidate I had to justify every assertion and assumption that I made. In all three examples intellectual rigour is required.

If a speaker or writer asserts that there is misinformation, the question that first springs to mind is “what is misinformation”. What does the critic mean when he or she asserts that the subject matter of the criticism is misinformation. What is the definition of misinformation. Or is it a term that has a number of meanings and the correct meaning depends on the context in which it is used.

Perhaps we should start by breaking the word down.

“To Inform” is a verb and means to give or impart knowledge of a fact or circumstances[1] – to tell someone about something.[2]

“To misinform” qualifies the word “inform” with the modifier “mis” and means to give someone false or misleading information (we will look at “information” in a moment) – to tell someone something that is not correct.[3]

“Information” like the verb “to inform” derives originally from Latin informare – to inform. It is the nominative (noun) version of the word and has a variety of meanings. The most common synthesis of these meanings is material that informs.

Information need not be verbally transmitted. It may be by way of written material or material that is gathered by the senses and which may then be interpreted into something that provides meaning to or knowledge about what has been experienced. Information may be data which is then analysed and interpreted into a form that has meaning to the person being informed.

Some might say that “misinformation” is a contradiction in terms. If information is to apprise one of something that informs – that is knowledge of a fact or circumstances – something that misinforms and gives false or misleading information cannot be information because information must necessarily be factually true.

There are some who would say that this is the sort of argument that is pettifogging and to a certain extent I would agree. Yet  it is probably typical of much of the intellectual laziness that characterizes discourse in these times.

I go back suggestion in the first paragraph of this post that “misinformation” is used as a veto word. A veto word effectively shuts down the debate. In a sense it prohibits the continued exchange of ideas. To say that one if “offended” is a form of veto word because it fails to address the argument and often does not explain why an argument suggests offence. Accusations of “racism” and “racist” are veto words in that they do not progress the argument and are often tantamount to “in personam” attacks.

So it is with “misinformation”. The way it is used, without proper definition or understanding is vague and imprecise. To characterize a position as “misinformation” generally means that there is disagreement with the position or that the position is contrary to a view held by a majority or that the evidence begs a different conclusion.

Yet it is considered that to characterize a position as misinformation is an answer to the argument whereas in proper discourse there should be some explanation of why it is that a position may be characterized as misinformation.

Frequently what is considered “misinformation” is an opinion or one person’s interpretation of the facts. It may be that the facts selected are selective and do not tell the whole story. Or the interpretation of the facts selected lacks context and nuance. Or that there is a line of authority that refutes the basis for the opinion held.

But to dispose of a position as “misinformation” without more is intellectually lazy and seems to suggest disagreement rather than a reasoned and logical answer to a position.

The problem is that “misinformation” has become so misused that there seems to be a move afoot to either stamp it out, eliminate it or stem its spread. Many of the Internet based platforms are accused of spreading misinformation. And this should be stopped. But how? How do you separate honest opinion from a wilful attempt to mislead. And is such a move rather insulting to listeners, viewers or consumers. Should they not be able to make up their own minds and exercise their own judgement?

Neil Young has decided to remove his music from Spotify because that platform hosts John Rogan whose podcasts contain “misinformation”. In a general sense the criticism of Rogan is that he has spread vaccine misinformation but sadly the detail of the misinformation is missing. I suppose I could listen to Rogan’s podcasts to work out where the misinformation lies – if any – or if what is characterized as misinformation is in fact a statement of opinion but frankly, I have better things to do with my time.

It would have been helpful for the argument to have been clearly stated but those who throw the word “misinformation” about are more concerned with expressing their disagreement than engaging with an issue in a meaningful way.

The current drive against “misinformation” seems to me to be another attack of the freedom of expression and upon the ability to express views that may be contrary to those of the majority. A justification for this is often cited as the need for “social cohesion” – another term for blind conformity – but in reality it is really yet another manifestation of well-meaning but misguided “liberals” who know better than everyone else what is good for them.


[1] Collins English Dictionary

[2] Cambridge English Dictionary

[3] Cambridge English Dictionary

The Consent of the Governed

This post continues the theme developed in “Social Cohesion or Social Conformity” of the importance of the Rule of Law as the most important element of social cohesion and how the Rule of Law can be undermined by the loss of respect for and apparent powerlessness of our established institutions.

As I write this a protest camp is present outside Parliament. It has been there for 12 days and is likely to remain. It seems to be well supported in terms of those attending and in terms of the infrastructure that has developed. There are cooking facilities, recreational facilities and educational facilities for the young who are present.

It isn’t difficult to ascertain what the protest is about. It has been characterized as an anti-vax protest but the message that is coming through is that it is a protest against the effects of mandatory requirements for vaccines. Those who are in the catchment for those mandatory requirements are teachers and health workers so it is no surprise that a number from these professions are present.

Of course the protesters have been demonized. Although comfortable words are spoken about the right to protest, there is condemnation for this one because it has gone too far and in some respects it may well have done. But the anti-protest rhetoric, aligning the protesters with the “far right” has become clear from such “progressives” as Simon Wilson in this piece headlined ”Pandemic, protest, nurses and nutters” and an awesome piece of rolling inferential reasoning from Thomas Coughlan in a piece entitled “Parliament occupation inevitable, but end should also be” where he says

“Given the anti-mandate crowd are only anti-mandate because they’re anti-vaccine, and they’re only anti-vaccine because of conspiracy theories about its provenance and efficacy, there’s also an air of inevitability about the involvement of neo-Nazis and associated far-right conspiracy theorists and cranks with the protest.”

That sort of dismissive commentary overlooks the seriousness with which many of the protesters view the situation. This attitude of dismissiveness has continued from no less a source than the advocate for kindliness – the Prime Minister – and is reflected in many of the statements from other politicians.

Another aspect of the current situation is that it has demonstrated the total powerlessness of our institutions. Initially the Police seemed ready to take action but then pulled back. In essence this has given the protesters carte blanche to continue to develop the site and increase the semi-permanence of their presence. The theory of “policing by consent” – and it can only be a theory – isn’t going to gain any traction with the protesters.

The steps taken by Mr Speaker last weekend in turning on the sprinklers and playing awful music over loudspeakers was infantile to say the least and served only to diminish any respect for his office or for the institution of Parliament.

The public looks on and what do they see. Certainly no positive steps from our politicians who will not engage unless the protesters move on. This is reminiscent of the approach taken to hostage negotiations or a “lay down your arms before we talk about a ceasefire” approach. The Prime Minister dismisses the protest as anti-vax (when clearly it is not only that) and was conspicuous by her absence last weekend when Mr Speaker was playing his part.

Other politicians (apart from David Seymour) seem unwilling to engage and the reasons are opaque. Once again leadership seems to be lacking and our governing institutions suffer from powerlessness, toothlessness and an apparent unwillingness to do anything.

What is extraordinary is that the politicians and those in government are not our masters but our servants. We look to the Government especially to maintain the Rule of Law – another institution that seems to be in difficulty – since it seems that the Rule of Law is engaged on two fronts – the question of how the law deals with a protest that has aspects of unlawfulness and how the Courts may continue to function when the protesters by their actions make the administration of justice almost impossible. No less a person than the Chief Justice has commented on the fact that a jury trial in the High Court at Wellington had to be cancelled.

In addition to the issue of the powerlessness of our institutions or their apparent unwillingness to act is an aspect of constitutional theory expressed by Thomas Jefferson in the Declaration of Independence

Governments are instituted among Men, deriving their just powers from the consent of the governed.

As things stand I wonder if the consent of the governed is as willing as it once was. Do people consent to being governed by institutions that seem powerless or unwilling to maintain the Rule of Law?  Certainly the protesters, anarchic as they may appear, are in fact quite well organized. It seems that the consent consensus that they have is a little more resilient than that of the government. But I don’t think that the majority of New Zealanders would consent to that form of regime.

Or are we headed into something else. William Butler Yeats, the Irish mystic poet writing after the horrors of World War I and the Spanish Flu pandemic wrote in “Second Coming”

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere  

The ceremony of innocence is drowned;

The best lack all conviction, while the worst  

Are full of passionate intensity.

It seems that his words may aptly describe our present situation.

Social Cohesion or Social Conformity?

The recent paper “Sustaining Aotearoa New Zealand as a Cohesive Society”[1] addresses technology as an aspect of and threat to social cohesion. From a wider perspective it questions the assumptions about social cohesion as a supporter or an essential for a liberal democracy.

It puts forward matters that need to be considered in achieving social cohesion. It suggests that social cohesion is breaking down in the face of a fragmentation of values arising from disparate sources but the main one being “misinformation” or “disinformation” disseminated via social media platforms causing a questioning and distrust of the institutions that underpin society.

Social cohesion is seen as a vital element of a resilient liberal democracy. What amounts to a resilient liberal democracy, nor indeed a liberal democracy itself, is not defined but it is assumed that those terms mean a robust political and governmental system where the government governs with the consent of the people and that the system fulfils Lincoln’s Gettysburg definition of government as being of the people, by the people and for the people.

The consent of the governed was (and still is) an essential element of some of the Enlightenment thinking about the nature of government that was expressed by Jefferson in the Declaration of Independence – We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

It is probably within the concept of consent of the governed that social cohesion begins to grip as a supporter of a liberal democracy.

The paper discusses various approaches to defining social cohesion and settles on a wide definition.

The definition depends on

• Sufficient trust and respect between those who are governed and the institutions and individuals they empower to govern them;

• Sufficient trust and respect between all members of a society (which by inference reflects a diverse set of identities, worldviews, values, beliefs, and interests) to foster cooperation for the good of the society as a whole;

• Institutions and structures that promote trust and respect between all members of society; and allowing

• Belonging, inclusion, participation, recognition, and legitimacy to be universally possible.

Therefore the underlying themes of social cohesion are trust, inclusion and respect which result in recognition and thus the legitimacy of the governmental system

This definition is based upon two groups of criteria – the elements of socially cohesive behaviour and a high level of conditions necessary for a socially cohesive society.

The paper then develops matters that should be considered in halting the perceived erosion of social cohesion.

However in its analysis of the decline of social cohesion two elements become clear. The first is that implicit within social cohesion is an assumption that a single world view or set of values is the ideal. To challenge the established view is to undermine social cohesion and the ordered society. To offer an alternative or contrary view is seen not as dissent but as misinformation or disinformation.

In offering this approach to an argument is to employ a form of “veto statement” but worse still it suggests that there is only one correct view which may be described as a “truth”. Indeed the paper focusses upon the nature of information in what it calls the “post-truth” world.

If by disinformation is meant the dissemination of views that are unsupported by evidence or fact but that are presented as factual material rather than opinion based commentary, then the best counter lies in the market-place of ideas rather than any form of censorship. In this respect there should be greater educational focus upon the ability to analyse and think critically. Sadly this is undergoing considerable deterioration in the current education systemwhich seems to focus upon revisionism and anecdote – peoples’ “stories” – rather than objective realities.

There must be cause for concern if the means of dissemination (social media platforms) are seen as the problem because, absent content shifting algorithms, the problem lies within those who post content.[2]

If one were looking for threats to social cohesion, perhaps the problem really lies in the way in which growing centralisation both in national and local government are depriving citizens of the opportunity to discover their own solutions.

A further element that undermines the nature of objective truth is the current tendency to focus upon anecdotal evidence rather than a proper empirical study. We reap what we sow when our analysis of factual information is based upon anecdotes and perceptions of reality than from and empirical analysis of the evidence. We seem to be more concerned with how we “feel” about things rather that what we think of them – thinking being a rational process than involves a level of analysis.

Technology and Social Cohesion

If there is one clear theme that comes through from the paper it is the concern at the influence of technology and especially social media as a disruptive element – or threat – to social cohesion. This is described as “affective polaristion” which is the decline in objective assessment in the liberal democratic system based on citizens choosing between parties that reflect different ideologies, values and worldviews. Objective assessment is replaced by emotion – anger, fear, and hatred of others have emerged in the public square. Of course, this decline in objective assessment can be laid at the feet of the education system, to which reference has been made.

“Affective polarization” is fuelled by the polarising effects of media, technology, and “misinformation”. The paper suggests that a major challenge to social cohesion is the rapid emergence of the relatively ungoverned virtual world. On one hand, the internet has empowered some groups by enhancing communication and knowledge access. On the other, it has provided opportunities to cultivate and disseminate misinformation and disinformation, and to increase polarisation. Freedom of expression has always been accompanied with a certain level of chaos and background noise.

The arrival of powerful and effective ways of anonymously transmitting ad hominem attacks, the paper suggests, has undermined the traditional institutions on which all societies rely to sustain cooperation and respect. The emergence of the Internet of Things, virtual reality, and the metaverse, along with the development of new economies and networks enabled by cryptocurrencies, is rapidly altering the constraints which helped glue societies together.

To blame the Internet – the backbone – is incorrect. This seems to demonstrate a misunderstanding of what “the Internet” is. The Internet is a transport system for data. The Internet is not the problem. Permissive innovation – the ability to bolt platforms on to the Internet without going through a series of red tape or bureaucratic approvals – has enabled the development of the various platforms that allow users to communicate. Thus it is not the Internet but the platforms that are bolted on which form the agency for a certain type of human behaviour.

This fundamental misstatement of the nature of the Internet is something I would not have expected from a paper of this pedigree. I imagine that the rather glib response by the authors would be that they are using the vernacular understanding of the “Internet” but in a paper that condemns “misinformation” with a high level of vehemence I would have thought that more care would have been applied to accuracy of definition.

A problem is seen with the emergence of virtual and manipulated realities in so-called metaverses. The internet has enormously increased access to information, and in that sense can be seen as democratising. However, the information is of variable reliability, and exposure to “misinformation” and “disinformation” is greatly enhanced by millions of users being exposed to both unintentional misunderstanding (often through ignorance) and deliberate misrepresentation by bad actors (including agents of foreign states) Internet based platforms are also empowering in that it allows people to engage in activities of social affirmation online, although I would characterize the role of these platforms of agencies of a certain level of communication.

The gathering into online groups was anticipated by Michael Froomkin who put forward the proposition of Regulatory Arbitrage – that users would migrate to elements that favoured their point of view or perspective. This theory was more related to the types of rule sets that might apply to Internet users and was a matter of jurisdiction although with the rise in social media it seems to be more a matter of congregating with likeminded users.

This should not be seen as unusual. People have long sought out those whose views or beliefs are similar. Gatherings in clubs or other organisations has been a feature of human social existence for some centuries. The communicative properties of Internet based platforms enhances this desire and its fulfilment. The problem, therefore, is not one of technology but of human behaviour.

Concern is expressed at the way in which “disinformation” and “misinformation” are disseminated via Internet platforms. The phenomena of mis/disinformation is recognized as one that has been present for some time. It is not new. But social media, the internet, and algorithm-targeted messaging have taken intentional disinformation to a new level. Thus technology and social media platforms fulfil and agency function rather than a causative feature.

Throughout the paper disinformation and misinformation are used without being defined. The issue that I have is that dissent or the expression of a point of view that is contrary to that of the majority may be characterized or demonized as mis/disinformation. In this way dissent is sidelined or even worse deplatformed or “cancelled”.

Intentional disinformation is referred to and by that I gather that what is being propagated are lies or information that has no factual basis and that the originator disseminates with the intention of misleading. 

Once again this type of behaviour has been with us for some time but the scope of these lies spreads from fraudulent scams to challenges to objectively ascertainable facts.

There is a suggestion that the development of new technologies alters the constraints that glue societies together.  I think that there is once again a failure to recognize that new technologies and especially information and communication technologies may alter behaviours and attitudes – acting as agents for change in values. This is an example of the aphorism attributed to Marshall McLuhan “we shape our tools and thereafter our tools shape us”.

Furthermore the “problems” of Internet-based platforms as is so often the case focusses upon the content of communication rather than the means of communication – the medium is the message; another of McLuhan’s aphorisms. In some respects the horse bolted long ago and it is only now that we are beginning to understand that and come to terms with the new reality that besets us.

To condemn new communications technologies as the cause of the problem and to call for some form of restructuring or regulation is in some respects a mournful cry for a time that has been irretrievably lost and represents a form of conservatism that would anchor us in a societal position where any sort of change is decried. In some respects the calls for reversal of climate change are an attempt to preserve a way of living that may no longer be possible and ironically (because the Greens and those who favour positive steps to reverse climate change consider themselves Progressives) represents another manifestation of what could be called a “yearning conservatism”.

The two examples may be said to suggest a form of technological determinism and in some respects that is acknowledged. In the area of climate change although the effects of human activity have seen an increase in the pace of climate change, the reality of climate change has been with us since before records were kept and are reflected in the geological record as well as the more modern written records.

Climate change is and always has been inevitable and in the past the way that humans have dealt with it is not to reverse reality but adapt to the new circumstances. This may mean that we are no longer able to sustain certain activities to which we have become accustomed. It may mean the abandonment of the ocean view for a form of shelter in higher places. These are the realities for which we should be planning rather than arguing about whether there should be cycle lanes over the harbour bridge or banning fossil fuelled motor vehicles. Such would be a token gesture.

I advance climate change as an example of certain inevitabilities that underlie some aspects of technological change coupled to a degree with aspects of technological determinism. Eisenstein described the printing press as an agent of change and by so doing avoided the deterministic label. But in some respects she was correct. The press was an agency of a change in attitudes. It enabled changes in communications associated behaviours and by so doing enabled changes in a number of areas of human activity. There can be no doubt that the disseminatory powers of print enabled the swift transmission of Luther’s arguments that formed the basis of the Reformation.

Were Luther’s theses a form of sixteenth century misinformation? Is “misinformation” the Twenty-first Century characterization of “heresy”. To the Catholic Church Luther’s theses certainly were. And the new information technology enabled the spread of the ideas that underpinned the theses. The response in many cases was to break up the printing presses to stop the spread of this “heresy”. The Catholic Church professed concern for the souls of the believers but there was no doubt that its response to Luther was as much in the interests of maintaining its position of power.

Thus one wonders whether or not – despite the focus on the importance of “liberal democracy” – social cohesion is just another form of power play – a desire by those with a vested interest in established institutions to maintain those institutions in the interests of maintaining conformity with existing power structures and (im)balances. Thus liberal democracy – as a trope – occupies the position of the soul in a modern secular society – something intangible, lacking coherence and ephemeral that has its own particular value.

As if to support this argument the paper states (P. 3)

(G)overnments need to place the opportunities and challenges of the digital future more centrally and to consider them through the lens of sustaining or undermining social cohesion. Not doing so may threaten democracy itself, seeing it replaced by a more autocratic form of governance. Societies could fracture in ways that undermine their very essence and identity.

This suggests that the only alternative is autocracy yet in many respects we are living in an autocratic system in what could be called “The Covid Autocracy” or “The Covid Despotism”

To sum up this aspect of the discussion – technology in and of itself is not the problem and to propose to “regulate the technology” is not a solution. Nor does the answer lie in reining in the social media companies. The concerns seem to be that they are allowing the dissemination of contrarian content some of which can be dangerous. It seems to me that despite the difficulty of assessing the huge volumes of data that flow through their servers, some social media providers attempt to adopt a responsible attitude to truly harmful content. Much of the problem lies in the assessment of that content. For some “hate speech” is speech that they hate to hear. For others misinformation is a twisting or reinterpretation of existing facts. For others disinformation may be, and often is, downright lies. The responsibility lies with the individual to resolve the problem, and not for some patronising and paternalistic State to proclaim a single and all-embracing truth.

Social Cohesion and Conformity

Underlying the discussion of social cohesion is the theme of conformity. Citizens should conform to understood precepts of social order. Conformity is associated with an element of collectivism which seems to be gaining traction in the Twenty-first Century milieu. The problem with the underlying elements of social cohesion that are discussed in the paper is that individualism is subsumed and individual aspiration is sacrificed on the altar of social cohesion.

Belonging, participation, inclusion, recognition and legitimacy are all seen as elements of social cohesion. However, the focus upon social cohesion as an element supporting a liberal democracy seems to depend up on collectivist approach especially in regard to the communication of information and the spread of views, opinions and interpretations of facts that may be present within a community.

The word freedom has become somewhat devalued of late, sneered at and associated with contrarian or anti-vax sentiments. Yet it is an essential aspect of a liberal democracy. It is for that reason that I point to the importance of the freedoms guaranteed by the New Zealand Bill of Rights Act as well as the freedom to think as we please, the freedom to make our own decisions and to act on them. It is in this respect that I have concerns about social cohesion as it is developed in the paper.

The focus upon contrary points of view disseminated over social media strongly suggests a collectivist conformist approach that is inimical to concepts of individual liberty within a liberal democracy. It is that individualism that sustains innovation and diversity of points of view, that accepts differing manifestations of behaviour as long as there is compliance with the bottom line allowed by the law.

I suggest that the law sets the boundaries for social cohesion. Moral suasion or some ill-defined standard suggests some other way apart from law in which society modifies and monitors behaviour, and disapproves or condemns that which is outside what may be described as “norms accepted by the majority”.

This form of moral coercion masquerading as social cohesion has little to do with life in a free and liberal democracy, and indeed if this is the goal behind the paper – and I earnestly hope that it is not – then the conceptualisation of social cohesion as operating in this way is to be resisted.

Maintaining Social Cohesion

I suggested above that the law sets the boundaries for social cohesion. The paper ignores the fact that there is already in place a means of maintaining a level of social cohesion that is consistent with a liberal democracy and that is the Rule of Law.

The paper suggests that living in an organised society implies a contract of reciprocal behaviour, or a social contract, between citizens and the society’s institutions. We cannot operate outside those bounds and remain functioning and free members of that society. No one, it points out, has absolute free will.

There can be tension around what the bounds are, as we have seen in debates over constraints imposed during the Covid-19 pandemic, and as are more generally reflected in differing preferences across various ideologies and value sets.

In many respects this tension that develops is a good thing because it demonstrates that within the community there are a variety of different points of view about a proposed course of action. If social cohesion in the form of a collective point of view proposes that there should not be a variety of different points of view, then liberal democracy is in difficulty and social cohesion cannot be said to support it – rather it erodes a fundamental aspect of a liberal democracy which involves the right and the opportunity to disagree.

What the paper ignores, or perhaps sidesteps, is the importance of the Rule of Law as an element of the social contract. There seems to be little discussion about the effect of law in fixing the boundaries for acceptable social behaviour.

Without the Rule of Law what is being proposed is some form of “understood” code of behaviour based on the concept of a resilient society that has its foundation in social cohesiveness. I would have thought that a clearly communicated and understood Rule system would establish the metes and bounds of acceptable behaviour.

The New Zealand Bill of Rights Act 1990 clearly defines the rights of individuals vis-à-vis the State. If I were looking for a recipe for social cohesion NZBORA would be the prime ingredient, despite the various exceptions and riders that the legislation contains. What it does contain are clear statements about the freedom of expression, freedom of association, freedom of peaceful assembly, freedom of movement, freedom of thought, conscience, religion or belief, freedom from discrimination, the right not to be deprived of life, nor subjected to torture, nor subjected to medical experimentation and the right to refuse medical treatment. These, it seems to me, must be the essential ingredients of a liberal democracy.

Furthermore, there must be a clear understanding that everything is permitted unless it is prohibited, thus constraining the power of the State and allowing individual citizens a high level of liberty of conduct under the Rule of Law which focusses on the maintenance of internal stability. Otherwise the formula “everything is prohibited unless it is permitted” sows the seeds of an autocratic society based on a top down power structure.

The rather vague focus upon a collective social cohesion contains within it some serious difficulties and the lack of certainty about the scope of social cohesion absent a consideration of an underpinning in existing legal rule sets suggests a possible moral or suasive approach to behaviour that is unclear and uncertain – factors that are inimical to a living in a liberal democracy.

Conclusion

I suggest that the concerns that have been expressed in the paper are overrated. Disagreement and dissent are fundamental aspects of a liberal democracy. Without them essential elements of a liberal democracy cannot exist. To demonise an alternative view with terms like “misinformation” and “disinformation” without addressing the very nature or content of what is proposed is to engage in another form of veto statement or the cancel culture that is used to silence an opposing view. To justify these aspects of censorship as an aspect of social cohesion – although to be fair the report writers do allow for dissent as long as it resolves in an acceptable solution – is to do violence to the freedom of expression as a vital aspect of a liberal democracy.

Social cohesion in the end is another word for conformity – conformity that is not recognised as a bottom line for human behaviour thus justifying the interference of the law – but some form of moral conformity that does not allow for a contending view. And that is a form of totalitarianism and thought control that has no place in a liberal democracy.


[1] Gluckman P, Bardsley A, Spoonley, P, Royal C, Simon-Kumar N and Chen A University of Auckland Centre for Informed Futures December 2021 https://informedfutures.org/social-cohesion/ (Last accessed 22 December 2021)

[2] See “The Fault, dear Brutus, lies not in social media, but in ourselves” https://theitcountreyjustice.wordpress.com/2021/08/27/the-fault-dear-brutus-is-not-in-social-media-but-in-ourselves/ (Last accessed 27 December 2021)

Jacinda’s Labyrinth – Managing the COVID pandemic by law

Explanatory Note:

First, this piece was written over a period end of January to the beginning of February 2022. The day before it was finalized the Prime Minister announced the gradual opening of New Zealand’s borders and the end of the iniquitous MIQ system for New Zealand citizens. That said, the effect of the 2021 Air Border Order and no doubt other Orders that will follow to give effect to the opening of the borders still provide for conditional entry to New Zealand that is contrary to the principles set out in the Immigration Act and the New Zealand Bill of Rights Act.

Secondly ,this is not the type of analysis that would pass muster in a peer reviewed academic journal. I have tried to simplify complex legal concepts for a lay audience (and for myself) with the goal of providing some insights into the way in which the labyrinth of COVID-19 legislation and rules may be navigated and explained.

Among the tasks which [Minos] confided to Daedalus was that of constructing a labyrinth in which to confine the Minotaur, the dreadful creature which for some years had preyed upon the people of the kingdom. With great patience and ingenuity Daedalus planned and built a maze of masonry so intricate that nobody who reached the centre could hope ever to find their way out again, and in the centre was the abode of the man-eating monster.[1]

Introduction

The legal framework which has been put in place for the management of the COVID-19 pandemic is voluminous and complex. It consists of empowering statutes which authorize the making of rules and regulations by Ministers and at times officials. The various pieces of legislation and the various orders and notices may be found on the Unite Against Covid website in the section setting out the key legislation, the COVID-19 Public Health Response Act orders and notices and notices made pursuant to the Health Act, the Epidemic Preparedness Act and the Civil Defence Emergency Act.[2] A full collection of legislation and orders may be found on the Parliamentary Counsel’s Office website and includes legislation and orders that are no longer in force.[3]

Early in 2020 and before the pandemic reached New Zealand there were three pieces of legislation available that provided certain powers to deal with epidemics – the Health Act 1956, the Epidemic Preparedness Act 2006 and the Civil Defence and Emergency Act 2002.

Research Resources

The COVID-19 website[4] lists fourteen statutes enacted in 2020 that specifically addressed the pandemic[5]. The prime piece of legislation is the COVID-19 Public Health Response Act 2020.

The COVID-19 website notes that there are 21 Public Health Response Act Orders and Notices. There are also 30 Orders which have been revoked along with 26 expired Gazette notices.

The website notes that were also orders that were made pursuant to the Health Act 1956 that have since been revoked or replaced by orders made under COVID-19 Public Health Response Act 2020. Seven notices were made pursuant to the Epidemic Preparedness Act along with 8 modification orders under that Act. There were seven declarations of a State of National Emergency made pursuant to the Civil Defence Emergency Management Act.

It will be clear that there are a large number of statutes and regulations which deal with aspects of the pandemic and its management. It is not proposed to address all of them. Rather this paper is more of a guide – Ariadne’s thread if you will – to working through some of the main passages of the labyrinth of statutes and orders that have been enacted and put in place and to provide a specific example to illustrate how it all works.

A matter that is of concern is that the Government’s “go to” website for COVID-19 information headed Unite Against COVID-19 does not provide full information. In the section on legislation and key documents only a selection of the legislation and orders are available. This must be a matter of concern. Citizens who might gravitate towards the Government “go to” website might find only part of the story.

An example of the deficiency surrounds a question that I had about whether there was a legislative or regulatory power that enabled the Government to “consolidate”[6] orders of Rapid Antigen Test kits. The closest Order that I could find after a search was found on the NZ Customs Service website and referred to the COVID-19 Public Health Response (Point of Care Tests) Order 2021. This order does not appear on the Government’s “go to” website although it is available on the Parliamentary Counsel’s website[7].

The absence of material from the Government’s “go to” website seems to suggest a concerning lack of transparency. Indeed, the information presented is incomplete and in that respect is detail and context are lacking. This selective publication of information tells only part of the legislative story and in the minds of some might amount to a form of misinformation – a selective presentation of valid material.

The Parliamentary Counsel’s website is a much more accurate and therefore reliable resource although it does not distinguish between enactments and orders which are no longer in force and those that are. It is necessary to view individual documents to confirm their current status. The sheer volume of material available on this resource demonstrates the labyrinthine nature of the legislative response.

Outlining the Discussion

As I researched the material it became clear that some of the powers that have been put in the hands of ministers and officials are very wide and impinge to a considerable degree upon the civil liberties of citizens and override the rights guaranteed by the New Zealand Bill of Rights Act 1990. Although critics of the Government’s management of the pandemic and those who advocate for “freedom” are dismissed as purveyors of misinformation, some of their misgivings may be justified and I shall comment upon scope of ministerial and official powers in this paper.

I shall commence with an overview of the Covid Public Health Response Act 2020 and examine the rule making powers contained in that statute.

I shall then consider an order that has been made involving the border which impacts upon the rights and expectations of New Zealand citizens under the Immigration Act 2009 and the New Zealand Bill of Rights Act 1990 .

I shall conclude with some briefl observations about possible upcoming changes to New Zealand’s border arrangements

The COVID-19 Public Health Response Act 2020

Beginnings and Endings

The COVID-19 Public Health Response Act 2020 (CPHRA) came into effect as from 13 May 2020 when it was given Royal Assent. It was enacted specifically to deal with the response to the COVID pandemic and contained specific powers relating to the pandemic that were not present in the Health Act 1956.

Importantly it has a “sunset clause”. This is a section which sets out when the effect of the Act ends and is automatically repealed.

Section 3 sets out two sets of circumstances by which the Act will be repealed.

The first involves a resolution to continue the life of the Act. Resolutions to continue the life of the Act must be made every 90 days or such other period determined by the House of Representatives.

Thus as matters stand the Act must be “revitalized” within a 90 day period.

The second way that the Act comes to an end is by the close of 13 May 2023 unless the Act is repealed sooner.[8] This demonstrates that the life of the legislation is limited to the particular circumstances with which it deals.

The Purpose of the Act

The purpose of the Act is important. When Courts come to consider the way in which the Act should be interpreted they look at the purposes of the Act and interpret it in such a way that will give effect to the purpose of the legislation.[9] This is known as a “purposive interpretation” and can be quite wide.

The purpose of the legislation is:

“…to support a public health response to COVID-19 that—

  •  prevents, and limits the risk of, the outbreak or spread of COVID-19 (taking into account the infectious nature and potential for asymptomatic transmission of COVID-19); and
  •  avoids, mitigates, or remedies the actual or potential adverse effects of the COVID-19 outbreak (whether direct or indirect); and
  •  is co-ordinated, orderly, and proportionate; and

(ca)   allows social, economic, and other factors to be taken into account where it is relevant to do so; and

(cb)  is economically sustainable and allows for the recovery of MIQF costs; and

  •  has enforceable measures, in addition to the relevant voluntary measures and public health and other guidance that also support that response.”[10]

The Act does not set out every situation or address every set of circumstances that might arise during the pandemic. It is a framework piece of legislation that provides powers to Ministers or named officials to make rules or orders that address particular circumstances.

The power to make rules does not require the approval of Parliament although section 16 of the CPHRA requires the approval of the House of Representatives for Orders once they have been made[11]. As long as the person making the rule makes it within the ambit of the power that is given to him or her, that rule has the force of law and is backed not only by the rule itself but by the provisions of the CPHRA.

There is another important principle of interpretation that should be noted. Section 11 of the Legislation Act states that legislation applies to circumstances as they arise[12]. This means that the law is considered as always speaking and must be interpreted in that light.

Making Orders Under CPHRA

The provisions setting out the way in which orders are made are set out in Part 2 of the CPHRA. There is some cross-referencing between sections but the important sections are section 8, 9, 11, 12, 13, 14 and 15.

Section 8 Prerequisites

The starting point is section 8. This sets out the pre-requisites for all COVID-19 Orders.

For a COVID-19 Order to be made there are three prerequisites.[13]

  1. There must be an epidemic notice made pursuant to section 5 of the Epidemic Preparedness Act 2006. The notice must be in force.
  2. Alternatively there must be a state of emergency or transition period in respect of COVID-19 under the Civil Defence Emergency Management Act 2002 in force
  3. Alternatively, orders may be made if the Prime Minister,
    1. by notice in the Gazette,
    1. after being satisfied that there is a risk of an outbreak or the spread of COVID-19,
    1. has authorised the use of COVID-19 orders (either generally or specifically) and
    1. the authorisation is in force.

Orders that may be made by the Minister or the Director-General of Health under the CPHRA Act are set out in section 11 which I shall discuss shortly.

For an order to be made under section 11 a number of requirements set out in section 9 or section 10 must be fulfilled.

Section 9 sets out the requirements that the Minister must fulfil in making a section 11 order. Section 10 sets out the circumstances in which the Director General may make orders.

Section 9 Requirements

  1. The Minister must have regard to advice from the Director-General about
  2.  the risks of the outbreak or spread of COVID-19; and
  3.  the nature and extent of measures (whether voluntary or enforceable) that are appropriate to address those risks;
  4. The Minister may have had regard to any decision by the Government on the level of public health measures appropriate to respond to those risks and avoid, mitigate, or remedy the effects of the outbreak or spread of COVID-19
  5. The Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms contained in the New Zealand Bill of Rights Act 1990
  6. The Minister
  7.  must have consulted the Prime Minister, the Minister of Justice, and the Minister of Health; and
  8.  may have consulted any other Minister that the Minister (as defined in this Act) thinks fit
  9. Before making the order the Minister must be satisfied that the order is appropriate to achieve the purpose of the CPHRA Act

The Minister is not required to receive specific advice from the Director-General about the content of the proposed order or any proposal to amend, extend or revoke the order.

The following observations need to be made. First, the five matters noted above are expressed conjunctively. That means that the word “and” joins each clause. It means that all the requirements must be satisfied. If the word “or” was used the clauses would be disjunctive and the Minister may have alternatives that he or she could consider.

Secondly I have highlighted the words “must” and “may” that appear in the requirements. The use of “must” is directive. The Minister cannot ignore or overlook a directive requirement. The situation is different with the use of the word “may”. In that case the Minister has a discretion as to whether he or she complies with the requirement.

Thirdly, section 9 makes it mandatory that the Minister must be satisfied that the order either does not limit the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 or amounts to a justified limit on those rights and freedoms.

The New Zealand Bill of Rights Act 1990 (NZBORA) is not what could be called “super legislation”. It does not overrule other statutes. In fact if there is an inconsistency between the provision of a statue and the NZBORA a court cannot hold that the provision is implied repealed or revoked, nor can it decline to apply any provisions of the statute.[14]

Furthermore the rights and freedoms that are set out in the NZBORA may be subject to reasonable limits prescribed by law that may be demonstrably justified in a free and democratic society. This “justified limitation” section demonstrates that the rights and freedoms may be limited and are therefore not absolute. That concept appears in the use of the words “justified limit” in section 9 (1)(ba) CPHRA. However, the language of the subclause makes it clear that it is mandatory for the Minister to undertake that consideration.

However the language of section 9(1)(ba) explicitly indicates that Parliament envisaged, in passing the Act, that orders may be made which limit the rights and freedoms under the Bill of Rights if the limit is justified. The level of justification is that required by section 5 NZBORA – it must be a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.[15] NZBORA and its application will be discussed at a later stage in this paper.

Section 10 Requirements

The Director-General can make orders under section 11 but they can only be made in accordance with the provisions of section 10.

There are four major requirements.

  1. Any order made by the DG may apply within the boundaries described in the order that
  2.  are relevant to the circumstances addressed by the order; and
  3.  are described in a practical way, whether by reference to roads, geographical features (such as rivers or ranges), or in any other way that enables the boundaries to be readily ascertained
  4. The DG must be satisfied that the order
  5.  is urgently needed to prevent or contain the outbreak or spread of COVID-19; and
  6.  is the most appropriate way of addressing those matters at the time
  7. the DG must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990
  8. The Director-General must be satisfied that the order is appropriate to achieve the purpose of this Act.

Once again the four requirements are expressed conjunctively. They are linked with the word “and”. That means that all the requirements require compliance. Furthermore there are some mandatory matters that the DG has to consider, indicated by the use of the word “must”.

Section 11 – Orders that May be Made Under the Act

The first thing to note is that section 11 sets out the purposes for which orders may be made. It does not specifically prescribe the wording those orders may contain. Rather it provides a framework within which orders may be made and the general subject matter of those orders.

Section 11 is lengthy. It contains six subsections and a large number or subclauses.

Once there has been compliance with section 9 or 10 the Minister or the DG may make order for one or more of the purposes set out in section 11.

These purposes are:

  1. To require persons to refrain from taking specified actions,

or to take specified actions,

or to comply with specified measures,

so as to contribute to either or both of the following

  •  preventing, containing, reducing, controlling, managing, eliminating, or limiting the risk of the outbreak or spread of COVID-19:
  •  avoiding, mitigating, or remedying the actual or potential adverse public health effects of the outbreak of COVID-19 (whether direct or indirect)

Examples of the first purpose are:

  • stay in any specified area, place, or premises or refrain from going to any specified area, place, or premises (including in specified circumstances or unless in compliance with specified measures):

(ia)     permit entry to any specified areas, places, or premises only in specified circumstances or in compliance with specified measures

  •  refrain from associating with specified persons:
  •  stay physically distant from any persons in any specified way
  •  refrain from travelling to or from any specified area or place, or refrain from travelling to or from any specified area or place in specified circumstances or unless in compliance with specified measures (for example, refrain from leaving an area unless the person has a COVID-19 vaccination certificate):
  •  refrain from carrying out specified activities (for example, business activities involving close personal contact) or carry out specified activities only in any specified way or in compliance with specified measures:
  •   be isolated or quarantined in any specified place or in any specified way:
  •  refrain from participating in gatherings of any specified kind, in any specified place, or in specified circumstances:
  •  report for and undergo a medical examination or testing of any kind, and at any place or time, specified and in any specified way or specified circumstances:
  •  provide, in specified circumstances or in any specified way, any information necessary for the purpose of contact tracing:
  •  satisfy any specified criteria before entering New Zealand from a place outside New Zealand, which may include being registered to enter an MIQF on arrival in New Zealand:
  • The second stated purpose relates to an MIQF or other place of isolation or quarantine. The order

may require specified actions to be taken

or require compliance with any specified measures

for the purpose of managing the movement of people to, from or within MIQF or other place of isolation or quarantine or place of self-isolation or quarantine.

A non-exclusive list of three possible orders follows. It should be noted that this does not limit any other orders that may be necessary to fulfil this purpose.

The non-exclusive list is:

  •  giving directions that relate to the movement of people to, from, and within the MIQF, other place of isolation or quarantine, or place of self-isolation or quarantine:
  •  imposing restrictions and conditions that relate to the movement of people to, from, and within the MIQF, other place of isolation or quarantine, or place of self-isolation or quarantine:
  •  permitting people to leave their rooms in the MIQF, other place of isolation or quarantine, or place of self-isolation or quarantine in accordance with any requirements or conditions specified in the order:
  • Orders may be made relating to places, premises, craft, vehicles or other things.

The orders may require specified actions to be taken.

They may require compliance with specified measures

They may impose specified prohibitions.

The purpose for these orders is to contribute or be likely to contribute to either or both of the following:

  •  preventing, containing, reducing, controlling, managing, eliminating, or limiting the risk of the outbreak or spread of COVID-19:
  •  avoiding, mitigating, or remedying the actual or potential adverse public health effects of the outbreak of COVID-19 (whether direct or indirect):

Five examples of the types of orders are provided[16]. These are:

  •  requiring any places, premises, craft, vehicles, or other things to be closed or only open if specified measures are complied with:
  •  prohibiting any craft, vehicles, or other things from entering any port or place, or permitting the entry of any craft, vehicles, or other things into any port or place only if specified measures are complied with:
  •  prohibiting gatherings of any specified kind in any specified places or premises, or in any specified circumstances:
  •  requiring any places, premises, craft, vehicles, or other things to be isolated, quarantined, or disinfected in any specified way or specified circumstances:
  •  requiring the testing of any places, premises, craft, vehicles, or other things in any specified way or specified circumstances:
  • Orders may be made relating to laboratories that undertake COVID-19 testing. These orders may:
  •  set quality control measures and minimum standards:
  • require COVID-19 test results to be reported to the Director-General’s public health national testing repository:
  •  manage the supply of testing consumables (such as reagents and swabs) used by the laboratories:
  • provide differently for different classes of testing laboratories (for example, different provisions for laboratories depending on whether they are funded publicly or privately)
  • Orders may be made relating to the owner or person in charge of a specified laboratory that undertakes COVID-19 testing. These may require the owner or the person in charge to:
  •  deliver or use, in accordance with directions given under the order, specified quantities of COVID-19 testing consumables that the Minister considers necessary for the purposes of the public health response to COVID-19:
  •  undertake COVID-19 testing solely for the purposes of the public health response to COVID-19 while subject to the order, whether or not the laboratory is contracted by the Crown for that purpose
  • Orders may be made requiring persons to permit individuals to enter a place or receive a service irrespective of their vaccination status or the presentation of a vaccination certificate.
  • Orders may be made specifying the evidence that may be required to be produced to demonstrate that a specific measure has received compliance. The example is given of the requirement for the presentation of a COVID-19 vaccination certificate. Such order may provide for  any prohibitions or duties that apply in respect of the use or production of that evidence
  • Orders may be made specifying the required doses for each COVID-19 vaccine or combination of COVID-19 vaccines.
  • As may be expected, orders may be made dealing with COVID-19 vaccination certificates. The orders
  •  May specify who is eligible to be issued with a COVID-19 vaccination certificate:
  •  May specify how an application for a COVID-19 vaccination certificate must be made, and the information required to accompany that application:
  •  May provide for the issue, renewal, and extension of COVID-19 vaccination certificates by the Director-General or by the use of automated electronic systems (which certificates are to be treated as if they were issued, renewed, or extended by the Director-General):
  •  May provide for the form and content of COVID-19 vaccination certificates to be determined by the Director-General:
  •  May specify the period for which COVID-19 vaccination certificates are valid, or the conditions under which COVID-19 vaccination certificates may expire.

In addition the Minister may specify the circumstances where a breach of an order may be considered an infringement offence and may specify which class of infringement offence a breach may fall under.

The section also clarifies that things include animals, goods, businesses, records, equipment, and supplies for the purposes of section 11 and section 12.

Goods prohibited from import under a Covid-19 Order fall within the ambit of the Customs and Excise Act 2018 and are deemed to be among the goods prohibited from import under section 96 of that Act.[17]

Section 11(5) and (6) clarify that a COVID-19 order made under section 11 or authorizing the DG or Chief Executive to do anything specified in section 12(1)(d) – which I shall discuss shortly –  is secondary legislation and is subject to the publication requirements contained in Part 3 of the Legislation Act 2019.

This means that Parliamentary Counsels Office (PCO) must publish all secondary legislation drafted by the PCO and notify the making of such legislation by publishing information required by regulations in the Gazette. The PCO may also publish legislation that has not been drafted by the PCO.[18]

The notes to Section 11 contained on the legislation.govt.nz website also clarify the requirements of the Legislation Act 2019 regarding secondary legislation.

Section 11 has been subject to amendment but it is not my intention to discuss the provisions of section 11A which relates to compensation or payment relating to requisitions, section 11AA which sets out the requirements for making COVID-19 Orders under section 11AB or section 11AB which provides for the purposes for making orders under the Act relating to specified work.

Summary of the Provisions of Section 11

  1. Section 11 allows orders to be made for specific purposes.
  2. These orders may be made by the Minster or the DG.
  3. The first set of orders relate to people. These Orders may

Require persons to refrain from or undertake specific actions to prevent contain or reduce the spread of COVID-19 or avoid adverse public health effects of the outbreak

  • Examples of such orders may be:

Restricting or regulating entry to premises

Refraining from associating with specified persons

Distancing requirements

Travel restrictions to certain areas

Restrictions of certain specified activities

Isolation and quarantine requirements

Restrictions or prohibitions on gatherings

Requirements to report for medical examination or testing

Provision of information for contact tracing

Satisfying entry criteria before entering NZ including registration at an MIQF

  • Orders may address issues surrounding the management of MIQF including restrictions on movement to and within an MIQF
  • The second set of Orders relate to certain actions that may or may not be taken relating to premises, craft and vehicles.
  • Examples of such orders may be

Requiring closing or opening subject to conditions

Prohibiting entry or craft of vehicles into ports or places

Prohibiting gatherings at certain specified premises

Requiring places, premises, craft or vehicles to be quarantined or disinfected

Requiring testing of places, craft or vehicles

  • Orders may be made relating to COVID-10 testing laboratories or the people responsible for management of such premises
  • Orders may be made requiring access to premises or services with or without a vaccination certificate and the type of evidence necessary to demonstrate compliance with a specific measure
  • Orders may specify doses and/or combination of vaccinations
  • Orders setting out the details of application for, form and issue of vaccination certificates

The above is a very brief summary only and is intended to give a idea of the flavour of COVID-19 Orders that may be made.

The discussion now moves to a consideration of section 12 which sets out the general provisions relating to COVID-19 Orders.

Section 12 – General Provisions relating to COVID-19 Orders.

Section 12 sets out the sort of matters that may be covered in a COVID-19 Order made under section 11. It also sets out certain limitations that may apply to COVID-19 Orders.

  1. A COVID-19 order may set out different measures that may be imposed upon persons for example depending on whether or not they have a vaccination certificate or upon their vaccination status.

These measures may include requirements, restrictions, directions, and conditions, for different circumstances and different classes of persons, places, premises, craft, vehicles, or other things.

  • A COVID-19 Order may specify the evidence that may be required to demonstrate compliance with a requirement, restriction, direction or condition.
  • A COVID-19 Order may apply to certain people or classes of people, locations or areas.

These details are:

  •  in relation to persons, generally to all persons in New Zealand or to any person or specified class of persons in New Zealand:
  •  in relation to places, premises, craft, vehicles, or other things, to any class or to all of them:
  •  in relation to anything else,—
  •  generally throughout New Zealand
  •  in any area, however described
  • A COVID-19 Order may set out the circumstances where an Order may not apply even if the provision is beneficial.

The Order must set out the specified circumstances, whether the provision will not apply in a specified way, or to specified persons, places, premises, craft, vehicles or other things or a class of them.

  • A COVID-19 may order the DG or the Chief Executive[19] to do certain things by written notice. The power of the DG or the CE may be subject to any criteria or conditions of the Order.

The things that may be done by written notice are:

  •  specify, determine, designate, define, or approve any matters, impose conditions, or give directions, required for the operation of a provision of this Act or a COVID-19 order, including matters that affect or determine the application, operation, or scope of a provision:
  •  determine that any provision of this Act or a COVID-19 order (even if the provision is beneficial) does not apply in any specified circumstances, in any specified way, or to any specified persons, places, premises, craft, vehicles, or other things, or to any specified class of persons, places, premises, craft, vehicles, or other things:
  • A COVID-19 Order may actually permit something to be done even although it could be prohibited under section 11 or section 11AB. However the Order must be subject to special conditions[20].

This is somewhat confusing. Section 11 (and 11AB) set out the framework for orders. The Orders themselves are the way in which the purposes set out in section 11 are given effect.

For example pursuant to section 11(1)(e) an order may prohibit gatherings or a particular type of gathering in particular places or premises.

If there has been no Order prohibiting, say, gatherings of more than 50 people at any theatre, the presumption is that gatherings of more than 50 people at a theatre would be permitted.

Even so such gatherings could potentially be the subject of a section 11 Order. If we were to apply a purposive interpretation to the legislation – that is to make it work so that it achieve the objectives or purposes of the Act – this provision of section 12 could authorize the making of an Order specifically allowing more than 50 people to gather at a theatre but only subject to the special conditions that such gatherings could not take place after 10:00 pm

The effect of this is that the gathering of more than 50 people at a theatre, which was not prohibited but which potentially could be prohibited, has had a limitation put on it by a section 12(1)(e).

Limitations on COVID-19 Orders

Section 12 sets out certain limitations on COVID-19 Orders.

They may not apply to a specified individual.

If they are made by the DG they may apply only within the boundaries set out in section 10(a).

Orders may not be made under section 11(1)(e)(i)[21] in relation to

  1. Premises or parts of premises used solely as a dwellinghouse
  2. A prison

Orders may not be made under section 11(1)(e)(i) or (iii)[22] in relation to

  1. Premises within the Parliamentary precincts
  2. Premises whose principal or only use is as a courtroom or Judge’s chambers or a court registry.

Finally the last two sub-sections deal with the circumstances where a breach of an order may take place notwithstanding that there has been the disapplication of a provision or requirement.

Section 13

Section 13 is an important section because it deals with the legal effect of COVID-19 Orders. It deals primarily with the situation where there may be a conflict between COVID-19 Orders and other legislation or enactments.

A COVID-19 Order cannot be held to be invalid just because it has provisions that are inconsistent with the Health Act 1956. (s.13(1)(a))

A COVID-19 Order cannot be held to be invalid just because it has provisions that are inconsistent with any other enactment relevant to the subject matter of the Order. (s.13(1)(a))

A COVID-19 Order cannot be held to be invalid just because it confers a discretion on any person, or allows any matter or thing to be granted, specified, determined, designated, defined, approved, or disapplied by any person, or allows a person to impose conditions or give directions, whether or not there are prescribed criteria.

Significantly, section 13(2) specifically provides that s.13(1)(a) – provisions noted above – does not limit or affect the application of the NZBORA.

I have already made some brief observations on the provisions of NZBORA. Section 13(2) does not mean that NZBORA trumps COVID-19 Orders. The provisions of sections 4 – inconsistency with other legislation – and section 5 – justified limitations – still apply. What it does mean is that a Court is required to give an interpretation to the legislation or in this case the Orders that is as far as possible consistent with the NZBORA. I shall discuss this when I consider the validity of the Order relating to the Air Border below.

Finally section 13(3) makes it clear that noting in the Act prevents any legal proceedings in respect of the making or terms of any COVID-19 Order. This makes it clear that the Courts may scrutinize the validity of COVID-19 Orders.

Formalities for COVID-19 Orders

Covid-19 Orders are subject to certain formalities. These are set out in section 14 – 16 of the CPHRA and deal with the form, publication and duration of orders, the amendment and extension of orders and the revocation of Ministerial Orders if not approved by the House of Representatives.

I shall briefly set out these requirements section by section.

Section 14 – Publication Requirements

There are three mandatory requirements for COVID-10 Orders.

  1. Orders must be in writing
  2. Orders must state the area to which they apply
  3. Orders must state when they come into force.

Orders must be published at least 48 hours before they come into force. Publication must be in the manner set out in Part 3 of the Legislation Act 2019.

However there is an exception to the 48 hour time requirement for publication.

The Minister or DG (as the case may be) need not comply with the 48-hour time limit if they are satisfied that

  •  the order should come into force urgently to prevent or contain the outbreak or spread of COVID-19[23]; or
  •  the effect of the order is only to remove or reduce requirements imposed by a COVID-19 order[24].

In such a case the Order comes into force even if it has not been published.

The duration of orders made by the DG is limited. Orders made by the DG expire 1 month after the date upon which it comes into force unless it has been extended or earlier revoked.

Finally there is a directions that the Minister and the DG must keep their Orders under review.

Section 15 – Amendment or Extension of Orders

Section 15 deals with the amendment or extension of COVID-19 Orders.

The Minister has the power at any time to amend, extend or revoke any Order which he or she has made. In addition the Minister has the power to revoke any COVID-19 Order made by the DG

The DG has the power at any time, to amend, extend by up to 1 month on each occasion, or revoke any COVID-19 order which he or she has made.

The requirements that apply to the making of any COVID-19 Order[25] apply to its amendment or extension with necessary modifications.

Section 15 makes it clear that amendments, extensions and revocations of COVID-19 Orders are secondary legislation and publication of secondary legislation is governed by Part 3 of the Legislation Act 2019[26]

If the amended or extended order authorises any person or class of persons to either grant an exemption or authorise a specified activity under section 12(1)(d) of the Act

  •  the exemption or authorisation is secondary legislation unless it applies only to 1 or more named persons or specified things; and
  • the amended or extended order must contain a statement to that effect.

Section 16 – Approval of the House of Representatives

Section 16 sets out a requirement for the approval of the House of Representatives to COVID-19 Orders.

Section 16 defines what is called a “relevant period”. A relevant period is the longer of the following:

  •  the period of 10 sitting days of the House of Representatives after the date on which the order is made:
  •  the period of 60 days after the date on which the order is made:
  •  any other period specified by a resolution of the House of Representatives.

Thus, assuming that the time period has not been extended by the House, the maximum duration of a “relevant period” is 60 days (approximately 2 months) after the date upon which an order has been made.

Section 16 states that an Order made by the Minister is revoked is it has not been approved by the House within the relevant period. Thus, if a Minister’s Order is not submitted for approval within the 60 day period it is revoked by operation of law and ceases to be of any effect unless a resolution of the House says otherwise.

Revocation arising from the lack of approval of the House does not effect action taken to effect or enforce the order. Thus the revocation of the Order under section 16 is not retrospective. The Order is deemed to be in during (say) the 10 day period and officials are entitled to take steps to implement and enforce the order. Once the order has been revoked from that time is has not effect.

A resolution made under section 16 – say for approving an Order – is secondary legislation and is subject to the publication requirements set out in Part 3 of the Legislation Act 2019.

Section 16(6) directs that the Clerk of the House of Representatives must lodge a copy of the resolution with the Parliamentary Counsel Office for the purpose of publication under the Legislation Act 2019.

However, non-publication does not effect the validity that a resolution may have approving an Order or that an Order had been revoked or otherwise the subject of a resolution by the House.

Observations

Sections 8 – 16 as discussed are the most important operative sections of the CPHRA. The way in which the sections are expressed make it clear that Orders that may be made may be necessary and urgent given the circumstances of the pandemic. This does not absolve those making the Orders of the obligation to promulgate and publish Orders so that citizens may be aware of the authority that the Government or officials claim to be acting under in going about their business of enforcing the Orders or putting them into effect.

It will also be noted that the types of Orders that may be made are highly invasive and involve significant abrogations of the rights and expectations of New Zealand citizens and residents under NZBORA, any other legislation or under the common law. For this reason the CPHRA goes to some pains to emphasise the importance of the NZBORA and the necessity that the Minister and/or the DG apply their minds to the rights that are contained in NZBORA. It may well be – and it has been shown to be the case – that there has been an abrogation of a guaranteed right under NZBORA but one can assume that at least the scope of the abrogation has been considered and hopefully mitigated to the greatest extent possible by Ministerial or Official consideration.

Summarising the Process for Making an Order

In this section of the paper I shall set out a checklist summarizing the steps that must be taken in making an order and hopefully provide some guidance through the labyrinth of language and requirements that is the Order making process.

Let us assume that officials have recommended to the Minister that an Order be made pursuant to section 11 of the CPHRA.

  1. Any one of the three pre-requisites set out in section 8 must exist.
  2. If the Minister is making the Order the requirements set out in section 9 must be fulfilled – all 5 matters set out MUST be considered although one of the matters contains a discretion[27].

It is important to note that the Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms contained in the New Zealand Bill of Rights Act 1990[28]

For many of the orders made there will be some limitation on one or more of the rights and freedoms in NZBORA. In such a case the Minister must apply a justified limitation test.

  • In the event that the DG is making an Order the requirements set out in section 10 must be fulfilled.

A reading of section 10 would suggest that Orders made by the DG may have a geographical impact.

DG Orders may be required in cases of urgency or necessity.

Once again there is a requirement to measure the Order against NZBORA.  the DG must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990. Once again if there is to be a limit on NZBORA rights the limitation must be justified.

Finally Orders made by the DG must be appropriate to achieve the purposes of the Act. “Appropriate” is a much used word and is somewhat slippery in meaning in that it reflects a subjective element as to what may be “proper”. In my view the word “necessary” would have been much more satisfactory.

  • Once the prerequisites and requirements have received compliance the Order may be made.
  • The Order must fall within the ambit of the types of Orders that may be made under section 11.
  • Section 12 sets out the scope of or limitations upon the Orders that may be made. In making an Order the provisions of Sections 11 and 12 should be read together.
  • Once the language of the Order has been settled the formalities provisions of sections 14 – 16 come into play.
  • Orders must be in writing
  • Orders must state the area to which they are applicable
  • Orders must state the date upon which they come into force.
  • Orders must be published in the manner set out in Part 3 of the Legislation Act 2019
  • Publication must be within 48 hours of the time that the Order comes into force unless the urgency or removal or reduction exceptions apply.
  • Orders made by the DG are of limited time duration. Both the Minister and DG must keep Orders under review.
  • The Order must be approved by the House of Representatives within the “relevant period” defined by the Act.

If one wished to challenge the validity of an Order from a procedural point of view pursuant to section 13(3) CPHRA it would be necessary for the Crown to establish each of the steps (along with the detail) from compliance with pre-requisites to approval of the House of Representatives.

At the same time in considering such a question, and indeed in any challenge to Orders or processes under the Act or associated Orders, a Court would take into account the purposes of the Act and consider whether the Order or actions not only received procedural compliance but were within the wider ambit of the purposes of the Act.

Does an Order Override a Specific Statute?

This involves a consideration of section 13(1) of the CPHRA. I have already referred to this section in summary but for this discussion I set out the full section as follows:

  •  A COVID-19 order may not be held invalid just because—
  •  it is, or authorises any act or omission that is, inconsistent with the Health Act 1956 or any other enactment relevant to the subject matter of the order; or
  •  it confers a discretion on any person, or allows any matter or thing to be granted, specified, determined, designated, defined, approved, or disapplied by any person, or allows a person to impose conditions or give directions, whether or not there are prescribed criteria.

For the purposes of this discussion I have chosen to look at the COVID-19 Public Health Response (Air Border) Order (No 2) 2020, the New Zealand Bill of Rights Act 1990 and the Immigration Act 2009.

Section 13 of the Immigration Act states as follows:

  •  For the purposes of this Act, every New Zealand citizen has, by virtue of his or her citizenship, the right to enter and be in New Zealand at any time.
  •  However, to establish his or her right to enter New Zealand, a New Zealand citizen must prove his or her citizenship and establish his or her identity by complying with border requirements.
  •  Nothing in this Act (other than subsection (2)) abrogates the right declared in subsection (1), and—
  •  no provision of this Act that is inconsistent with that right applies to a New Zealand citizen; and
  •  no New Zealand citizen is liable under this Act to deportation from New Zealand in any circumstances.
  •  Without limiting subsection (3), no New Zealand citizen—
  •  requires a visa or entry permission; or
  •  may hold a visa, or be granted entry permission, except a New Zealand citizen who—
  •  is a national of 1 or more other countries; and
  •  wishes to enter New Zealand other than as a New Zealand citizen; and
  •  has not been granted New Zealand citizenship, been registered as a New Zealand citizen by descent under section 7(2) of the Citizenship Act 1977, or been issued with an evidentiary certificate under section 21 of the Citizenship Act 1977 confirming that he or she is a New Zealand citizen.

This section establishes

  1. The right of entry into New Zealand by a citizen at any time
  2. The necessity of proof of citizenship or identity (usually by as passport)
  3. Nothing in the Immigration Act relating to duration of stay, visa requirements, deportation etc is applicable to a New Zealand citizen
  4. A New Zealand citizen does not require a visa to enter New Zealand unless that person falls within the exceptions set out in section 13(4)(b)(i) – (iii)

Section 18 of the New Zealand Bill of Rights Act 1990 deals with freedom of movement and states:

  • Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand.
  • Every New Zealand citizen has the right to enter New Zealand.[29]
  • Everyone has the right to leave New Zealand.
  • No one who is not a New Zealand citizen and who is lawfully in New Zealand shall be required to leave New Zealand except under a decision taken on grounds prescribed by law.

It will be seen that the provisions of section 18 NZBORA and section 13 of the Immigration Act have the same effect.

The COVID-19 Public Health Response (Air Border) Order (No 2) 2020 contains provisions which contradict the provisions of the Immigration Act and the NZBORA. Furthermore, there have been 14 Amendments to this Order but these do not effect the main thrust of the Order.

It should also be noted that the Order which provides for self-isolation of New Zealand citizens returning to New Zealand – COVID-19 Public Health Response (Air Border) Order 2021 – commences at 11:59 pm on 27 February 2022.

COVID-19 Public Health Response (Air Border) Order (No 2) 2020

I shall briefly set out the effect of this Order which I shall refer to as the ABO2 Order.

The Order is made pursuant to section 11 and 15(1) of the CPHRA.

It commenced at 11:59pm on 6 September 2020.

The Order applies to the whole of New Zealand.

Its purpose is to prevent, and limit the risk of, the outbreak or spread of COVID-19 by imposing certain requirements in relation to persons arriving in New Zealand by air (including medical examination and testing for COVID-19, and commencement of isolation or quarantining, as soon as practicable after arriving in New Zealand).

The Order makes certain provision for Quarantine Free Travel which I will not discuss.

The significant clauses for this discussion are clauses 7A – 8B of the ABO2 Order.

There are certain obligations cast upon air carriers. Air carriers cannot cause an aircraft to arrive in New Zealand unless each person on board has a confirmed allocation.[30]

A confirmed allocation is defined in section 32J of the CPHRA. It is a confirmed allocation issued under the managed isolation allocation system to an MIQF[31].

Thus the obligation is on an airline to prevent a person from boarding a flight landing in New Zealand if that person does not have a confirmed allocation.

In addition the air carrier must ensure that a person checking in for a flight has a negative COVID test 48 hours before departure or some other evidence of a medical examination that confirms that person’s COVID status.[32]

If a flight departs from a very high risk country the airline must ensure that  person does not board the flight.

If the flight is departing from other countries the airline has an obligation to take reasonable steps to ensure that the passenger is informed about the consequences of having been in a high risk country within 14 days of the date of arrival in New Zealand and if they have been in such a country that they do not board the aircraft.

There are also vaccine requirements that must be fulfilled before a person can board an aircraft for New Zealand.

The evidence required is confirmation of—

  •  a record of having received 1 or more COVID-19 vaccines that shows their name; and
  •  the name of the COVID-19 vaccine or vaccines they have received; and
  •  the name of the agency that administered the COVID-19 vaccine or vaccines; and
  •  the place where they received 1 or more doses of the COVID-19 vaccine or vaccines; and
  •  the date on which they received—
  •  the dose of the COVID-19 vaccine, if only 1 dose of the vaccine is required to be satisfy the vaccination requirement; or
  •  each dose of the COVID-19 vaccine, if 2 or more doses of the vaccine are required to satisfy the vaccination requirement.

Then R 8 and following set out the obligations on travellers arriving in New Zealand.

The person must report for and undergo medical examination and testing for COVID-19, as soon as practicable after their arrival, at the airport at which they arrive.

The person must—

  •  have a confirmed MIQF allocation; and
  •  produce evidence of a confirmed allocation when requested by 1 or more of the following:
  •  a health protection officer or a medical officer of health:
  •  a staff member or representative of the relevant air carrier:
  •  an immigration officer.

The person must also produce evidence of a negative COVID test undertaken 48 hours before the journey to New Zealand began or evidence of a medical examination confirming the person’s COVID status.

The person must then be isolated or quarantined (commencing as soon as practicable after arriving in New Zealand) in accordance with the Isolation and Quarantine Order, subject to any IQ exemption applying in relation to the person.

If the person’s place of isolation or quarantine is an MIQF, the person must travel from the airport to the MIQF in accordance with directions of the chief executive.

The Effect of the COVID-19 Public Health Response (Air Border) Order (No 2) 2020

Although the Government has been at pains to say that New Zealand citizens have a right of entry and the restrictions imposed by the ABO2 Order are necessary the reality is that the Order imposes a number of restrictions upon returning New Zealanders by imposing conditions that must be fulfilled before they can enter New Zealand. The most restrictive and difficult are the MIQF requirements. The other requirements, although amounting to restrictions, are less difficult to comply with.

The overall effect of the ABO2 Order is to abrogate the right of entry contained in the Immigration Act 2009 and the NZBORA 1990. The only condition of entry imposed upon entry in the Immigration Act is proof of citizenship and identity. That is all.

The Application of Section 13(1) CPHRA

The issue now becomes whether or not the provisions of the ABO2 Order can override the effect of section 13 of the Immigration Act and whether they amount to a justified limitation of the right contained in section 18 of NZBORA

This involves an interpretation and the application of section 13(1) of the CPHRA.

The first question that arises is how specific must a statute or Order by if its provisions are going to have the effect of overruling an existing statute?

In this case there are two parts to section 13(1)(a). It says that just because an Order is inconsistent with the provisions of the Health Act 1956, it cannot be held to be invalid.

Thus if there is a conflict between the Health Act and the Order the Order trumps the Health Act. That is clear and the specific legislative conflict is identified.

Section 13(1)(a) then goes on to say that an Order cannot be held to be invalid because it is or authorizes an act that is inconsistent with any other enactment relevant to the subject matter of the Order.

No clear or specific legislative conflict is identified. All that needs to take place for an Order to trump a statute is that the statute must have the same subject matter as the Order.

It is not necessary for section 13(1)(a) to specifically state that the inconsistency of an Order with the provisions of the Immigration Act do not render the provisions of the Order invalid. The case law on the CPHRA and in particular the Orders mandating vaccines make that clear.[33]

In the Four Midwives Case Palmer J referred to the comments of Cooke J in the Four Aviation Employees Case noted that the empowering provisions did not expressly address vaccination and thus a degree of uncertainty arises from its use as the basis of such an order. This does not mean that the Order is invalid.

In construing the applicability of section 13(1) its is necessary to look at the subject matter of the order and consider whether the Immigration Act has the same subject matter. The subject matter of the ABO2 order involves the circumstances by which people may enter New Zealand. The subject matter of section 13 of the Immigration Act deals with the circumstances by which New Zealand citizens may enter New Zealand. Thus the subject matter is the same.

In addition if we look at the type of Orders that can be made as set out in section 11 we find that Section 11 (ia) permits entry to any specified areas, places, or premises only in specified circumstances or in compliance with specified measures which does make it clear that orders interfering with movement may be made. Section 11(1)(a)(iv) deals with travel although it would seem to relate more to travel in New Zealand that specifically to traveller returning from overseas. However the effect of these Orders is that they restrict the freedom of movement guaranteed under NZBORA.

Importantly for this discussion however section 11(1)(a)(x) provides that Order may be made requiring persons to satisfy any specified criteria before entering New Zealand from a place outside New Zealand, which may include being registered to enter an MIQF on arrival in New Zealand. Thus it is clear that Parliament turned its mind specifically to the subject matter of an Order such as ABO2. That underscores the intention of the legislature in considering whether legislation such as the Immigration Act was within the scope of an Order under CPHRA.

Therefore it is clear that even if there is a conflict with the provisions of the Immigration Act, that conflict does not render the Order invalid.

The Bill of Rights Act

The cases that have been decided dealing with legislation and Orders under the Health Act 1956 and the CPHRA have considered the application of NZBORA.

In section 13(2) the NZBORA still is applicable notwithstanding the provisions of section 13(1) and the application of NZBORA is thereby reinforced[34]. This means that a challenge to an Order can still be mounted based upon the applicability of NZBORA even if there is another conflict with a specific statute – in this case with the Immigration Act.

The approach adopted by Palmer J in the Four Midwives Case is very helpful in considering the proper approach to NZBORA analysis in COVID-19 legislation cases.

The right under the NZBORA that is engaged is identical to that stated in the Immigration Act. Section 18(2) NZBORA provides every New Zealand citizen has the right to enter New Zealand.

Along with the approach in Four Midwives it is hard to argue that the ABO2 order was not a justified limitation of the right having regard to the purposes of CPHRA and the Order itself. However, what of section 6 – that the enactment be given a meaning consistent with the rights and freedoms contained in NZBORA?  

Section 6 requires, as far as possible, legislation to be interpreted consistently with the Bill of Rights. That requires reference to both the relevant right or freedom and to whether the limit is justified.

No order can be made under the empowering provision that limits the right unless it is reasonable, prescribed by law and can be demonstrably justified in a free and democratic society under s 5 of the Bill of Rights.

So what difference does the Bill of Rights make to the interpretation of the empowering provision here? The right to enter New Zealand under s 18(2) of the Bill of Rights is engaged as I have observed.

Section 6 of the Bill of Rights requires the empowering provision in s 11 of the Act to be interpreted consistently with the Bill of Rights. But if a limit is reasonable, prescribed by law and demonstrably justified in a free and democratic society under s 5, it is consistent with the Bill of Rights. In this case, it would be unlikely to be held that it is an unjustified limit.

So the Bill of Rights does not require the usual purposive interpretation of s 11 to be narrowed to mean that the Order is outside its scope. Indeed, s 9(1)(ba) of the Act is explicitly indicates that Parliament envisaged that orders may be made which limit rights and freedoms under the Bill of Rights, as long as the limits are reasonable and demonstrably justified under s 5 of the Bill of Rights. That is underpinned by the language of section 11(1)(a)(x) CPHRA.

Thus, given the approach of the Courts in the vaccine cases it is likely that a similar analysis would be applied to a challenge based on section 18(2) NZBORA

The Proposed COVID-19 Public Health Response (Air Border) Order 2021

The proposed Order does not have provisions relating to compulsory MIQ for returning New Zealanders. However it continues to provide for what could be called conditional entry for New Zealand citizens.

Although the new Order is not as invasive of individual liberties and does not involve the equivalent of solitary confinement for New Zealand citizens upon arrival in their country of citizenship, nevertheless the provisions of the Immigration Act and NZBORA relating to entry into New Zealand do not (with the exception of the Immigration Act citizenship and identity verification requirements) allow for conditional entry into New Zealand. Thus the proposed 2021 Order is subject to similar objections as the ABO2 Order 2020.

Nevertheless the statutory framework is likely to result in an outcome similar to that proposed for a challenge to the ABO2 Order. The particular circumstances under which the legislation was enacted, its legislative structure and emphasis on public safety in a time of pandemic provide a basis for justified limitations upon rights otherwise enjoyed. If the pandemic were to pass and\or COVID were to become endemic in the community it is likely that the outcome may be different because the rationale for the Order would no longer exist.


[1] H.A. Guerber The Myths  of Greece and Rome Harrop, London Revised ed 1956 p. 148

[2] https://covid19.govt.nz/about-our-covid-19-response/legislation-and-key-documents/#key-legislation (Last accessed 26 January 2022)

[3] http://www.pco.govt.nz/covid-19-legislation/ (Last accessed 26 January 2022)

[4] https://covid19.govt.nz/ (Last accessed 27 January 2022)

[5] COVID-19 Public Health Response Act 2020

COVID-19 Public Health Response Amendment Act 2020

COVID-19 Recovery (Fast-track Consenting) Act 2020

COVID-19 Response (Further Management Measures) Legislation Act 2020

COVID-19 Response (Further Management Measures) Legislation Act (No 2) 2020

COVID-19 Response (Requirements For Entities—Modifications and Exemptions) Act 2020

COVID-19 Response (Taxation and Other Regulatory Urgent Measures) Act 2020

COVID-19 Response (Taxation and Social Assistance Urgent Measures) Act 2020

COVID-19 Response (Urgent Management Measures) Legislation Act 2020

Immigration (COVID-19 Response) Amendment Act 2020

Imprest Supply (Third for 2019/20) Act 2020

Overseas Investment (Urgent Measures) Amendment Act 2020

Remuneration Authority (COVID-19 Measures) Amendment Act 2020

Social Security (COVID-19 Income Relief Payment to be Income) Amendment Act 2020

[6] Less charitably minded people might say “requisition”

[7] http://www.pco.govt.nz/covid-19-legislation#sl (Last accessed 27 June 2022)

[8] Section 3(3) COVID-19 Public Health Response Act 2020

[9] See section 10 Legislation Act 2019.

[10] Section 4 COVID-19 Public Health Response Act 2020

[11] See the discussion of section 16 CPHRA that follows

[12] Section 11 of the Legislation Act replaced section 6 of the Interpretation Act 1999 which was referred to in this context in Borrowdale v Director-General of Health [2020] NZHC 2090. The concept of the lse being seen as always speaking was contained in section 5(d) of the Acts Interpretation Act 1924

[13] Section 8 COVID-19 Public Health Response Act 2020

[14] Section 4 New Zealand Bill of Rights Act 1990

[15] Four Midwives v Minister for COVID-19 Response [2021] NZHC 3064 at [39].

[16] Section 11(1)(e) Covid-19 Public Health Response Act 2020

[17] An example of such an order is the COVID-19 Public Health Response (Point of Care Tests) Order 2021

[18] Section 69 Legislation Act 2019

[19] Defined as the Chief Executive of a responsible agency. A responsible Agency is defined as  the department of the public service or agency or entity that, with the authority of the Prime Minister, is responsible for the administration of MIQFs – see section 5 Covid-19 Public Health Response Act 2020

[20] Section 12(1)(e) Covid-19 Public Health Response Act 2020

[21] requiring any places, premises, craft, vehicles, or other things to be closed or only open if specified measures are complied with:

[22] prohibiting gatherings of any specified kind in any specified places or premises, or in any specified circumstances:

[23] An urgency exception

[24] The removal or reduction exception

[25] See sections 9 and 10 for these requirements

[26] A note at the end of the section sets out the publication requirements contained in the Legislation Act although these are for guidance only.

[27] See Four Midwives v Minister for COVID-19 Response [2021] NZHC 3064 at [39]

[28] Four Midwives v Minister for COVID-19 Response [2021] NZHC 3064 at [39]

[29] The emphasis is mine.

[30] There are certain exemptions but they are not relevant for the purposes of this discussion. The flight may be to New Zealand or a multi-leg flight to New Zealand.

[31] Online allocations to MIQFs may be issued on a basis that the Minister decides.

In making a decision under subsection (1), the Minister must take into account—

  •  the right of New Zealanders under section 18(2) of the New Zealand Bill of Rights Act 1990 to enter New Zealand; and
  •  the need to mitigate, so far as possible, the social, economic, and other impacts of COVID-19. (see section 32M CPHRA.

[32] See ABO2 Order R. 8A(2)(b)

[33] Four Aviation Employees v Minister Covid Response [2021] NZHC 3012; Four Midwives v Minister for COVID-19 Response [2021] NZHC 3064

[34] Four Midwives v Minister for COVID-19 Response [2021] NZHC 3064