The first part of this piece was written last year. I was hesitant to
post it and then it seemed that events had overtaken it. In the considerable
amount of time has elapsed New Zealand fell into a state of complacency as far
as the effects of Covid-19 were concerned. There was even a “travel
bubble” – quarantineless travel – to and from certain parts of Australia.
Then the Delta variant arrived. And that changed everything. I commence this
post with my observations “then” – in May of 2020 and then review the
situation as at “now” – being October 2021. Whether or not, in the
light of recent events, the State is likely ever to get out of the way seems
very unlikely.
May 2020
Simon Wilson ended his pandemic diary once the lockdown levels and
restrictions had been reduced. He
concluded his diary with some 15 observations which he described as things we
know now that we hardly ever dreamed of before.
Some of his observations are quite reasonable. One of them, however, is the
sort of thing that I would expect from Mr. Wilson’s collectivist and Statist
world-view. At item number 8 he claims “The State Should Not Get Out of the
Way”. To expand on the proposition he suggests “The state is the principal
organising tool for society. The job is not to eviscerate it, but to make it
work better for us.”
That the State should work better for us is something with which most would
agree. It is a pretty clunky and unresponsive beast at the best of times and
the solutions offered are blunt rather than nuanced and often involve, as Mr
Oliver Christiansen found to his dismay, a box ticking approach to what
should be a careful, sympathetic and balanced consideration of factors in the
exercise of a discretion in decision-making.
Certainly the State claimed and exercised extraordinary powers following the
onset of the Covid-19 crisis. The State had to, as Mark Zuckerberg advocated in
another context, move fast and break things. And that is what they did.
One of the things that was “broken” or at least turned on its head was a
basic principle of liberty that we enjoy in a free society. I am not talking
about manifestations of interference with liberties like that of freedom of
movement or the right to refuse medical treatment. Rather I am thinking about
the basic principle that underpins law in a free society which is that everything
is permitted that is not specifically prohibited. This was completely reversed
especially in Alert Levels 3 and 4 to the point where everything was forbidden
unless it was permitted.
This led to another difficulty. Exactly what was permitted? Despite the
existence of a Covid 19 website with some very useful resources, without some
inkling of how the law worked in an emergency situation, the primary materials
were difficult for an ordinary person to work through.
And it is a fundamental aspect of the Rule of Law that the law must be
accessible, intelligible, clear and predictable. That is because – and this is
a second feature of the Rule of Law – the exercise of all powers by the State
must be authorized properly by law.
The problem is that the law lacked precision and its interpretation was
often faulty, summarized in newspapers, which merely reprinted press releases,
or the promulgation or proclamation of the rules – or an interpretation of them
– came by way of a press conference. Thus, we had vagueness in the
concepts of “staying local”. And how far could one go on a walk for the
purposes of exercise. And if one went too far – and how far was too far – would
one be subject to intervention from enforcement authorities and an even greater
restriction on an already severely restricted liberty.
One interesting aspect of the way in which the powers of the State could be
misinterpreted was in relation to those over the age of 70. It is acknowledged
that those in that cohort were at greater risk of severe consequences if
infected with Covid 19. But they were told to stay at home. By what authority?
There was none. Yet thousands of over-70’s were deprived of work, family
contact and the freedom of movement by this diktat which, as it turns out, was
advisory only and did not have the force of law.
These concerns are not mine alone. They are shared by a number of
individuals and are eloquently articulated by former Attorney-General Mr Chris
Finlayson QC in an op-ed piece entitled Coronavirus:
Lockdown was vague and threatening says former Attorney General.
So what does this have to do with Mr Wilson’s contention that the “State
Should Not Get Out of the Way.” Given the way in which the State has acted, and
the significant interference with civil liberties – for example the freedom
from arbitrary search – that is contained in validly enacted legislation (which
itself was subject to roll-backs and last minute changes) I would contest Mr
Wilson’s reliance upon the State.
I assume that he is referring to the way in which the State has intervened
to address problems within the economy. So it should if only because the damage
to the economy has been solely as a result of State action in the first place.
It is right and proper that assistance and compensation should be provided to
those who have been affected by this extraordinary use of State power. And then
the State should get out of the way and let the people, who have suffered at
its hands, get on with their lives.
It would be fair to ask “what was the Government meant to do” and the vast
majority of the citizenry approved the steps that were taken. But by the same token
in the lead-up to the lockdown there were some very dire predictions of what
might happen if determined steps were not taken. A climate of fear of Covid 19
developed that allowed the public to willingly and complacently accept
significant restrictions on the liberty of the individual.
It may well be when the dust settles that the reality will dawn that
governments in many countries were themselves panicked by the potential
reputational damage to them of health systems being overwhelmed. To avoid that reputational
damage they were prepared to take extreme steps that have had significant
deleterious economic effects as well as trashing the lives of citizens and
their expectations and in doing so seriously infringed civil liberties without
a careful and considered application of clear, intelligible law. This is the
State that Mr. Wilson considers is society’s principal organizing tool.
There can be no doubt that swift and determined action was required to
address the problems posed by Covid 19, but there seems to be a lack of
recognition that the State, or the Government if you prefer, is not our Master.
The State is the servant of the people. Rather than require, demand, order or
dictate – acting as if it were the Master and we were the servants – it should
recognize that in fact the people are the Masters and it is Government that is
the servant of the people.
It should always be remembered that there will be a tension between
authority on the one hand – represented in this case by the State – and liberty
on the other. John Stuart Mill was of the view that the potential tyranny of
government – an ever-present threat – could only be controlled by the
protection of the liberty of the citizenry. This was based upon the
Enlightenment view that liberty was a right – what today we would call a human
right.
This liberty is protected by the establishment of constitutional safeguards.
These safeguards are made with the consent of the governed and provides
limitation upon the exercise of power by the governing body.
The purpose of the power of the State, according to Mill, can only
rightfully be exercised over a member of the community against his will to
prevent harm to others. That the exercise of power may be for his or her own
good is not sufficient. The individual is sovereign determiner of him or her
self, body and mind.
Mr Wilson puts forward a pithy and somewhat reasonless argument for the
State or Big Government which ignores aspects of what the State is meant to do
within Mill’s balance between the purpose of the power of the State and the
rights of the individual.
We have seen what Big Government can do. It is the best course now that
Government or the State with its collectivist and regimented methods step back
and allow individuals to make their way.
October 2021
We are seeing now, as at October 2021, the real power of Big Government. It
seems that consensus has gone out the window. The “Three Waters
Initiative” involving the amalgamation and centralisation of local body
water resources was originally to have been a consensus “buy in”
project by local bodies. Today (27 October) it was announced that it would be
compulsory.
The approach to vaccination and the restoration of civil liberties provides
an interesting yet concerning approach to the exercise of power. That as many
people as possible should be vaccinated against Covid 19 is plain. I have no
difficulty with that. But the reasoning for this is as yet not entirely
clear. One would expect that the policy would be driven by altruism, especially
from a Left-leaning Government, But the concern seems to be more about the
ability of the Government to continue to deliver a health system. Some of the
messages tell us that vaccination is important for our own safety and for that
of our families and those around us. I have no difficulty with that.
It is the follow-up messaging that is of concern. Get vaccinated and we will
return some of your freedoms to you. Given that the State took those freedoms
away in one sweeping act in the first place that is a truly magnanimous
gesture. But the messaging has been going through a number of adaptations – all
of which indicate a growing arrogation of power by the State and a benevolent
attitude towards the exercise of civil liberties. They are no longer rights.
They are privileges.
The most concerning message delivered recently surrounds vaccination, the
use of vaccination passports (or some other form of proof) and the
differentiated (some might call it discriminatory) treatment of those who for whatever
reason are unvaccinated. We have been told that businesses may have an
opportunity to determine whether or not their staff should be vaccinated. And
if that is the case those availing themselves of the benefits of the business
must be vaccinated as well. And those who are unvaccinated will be unable to
access the benefits of the business.
This approach to what in the past were largely looked upon as human rights
now appear to be conditional privileges. If you have a vaccination then you
will be able to enjoy a range of activities that you previously could enjoy as
a a matter of course. And we, as the State will ALLOW you to do that. And if
you are unvaccinated you will be able to purchase food, avail yourself of
health and other government services but all the other rights that you formerly
enjoyed will be denied to you, not on the basis of your race or religion but on
your status as a vaccinated or unvaccinated person.
It reminds me of the Dr Seuss story of the Sneetches, yellow bird-like
creatures , some of whom have a green star on their bellies. At the beginning
of the story, Sneetches with stars discriminate against and shun those without.
Is this sounding familiar? There are other examples from the
“real-life” world that are too awful to record. But like it or not a
two-tier society is being brought into effect by a social democrat government.
Who would have thought it.
The second exercise of power by the State is the “granting” of
added liberties by means of the traffic light system. This proposal is designed
to obviate the need for lockdowns, allow businesses to operate (saving the Government
large sums of money in business support programmes that have developed over the
lockdowns) and allow citizens some movement as far as their liberties and
activities are concerned. Once again, an exercise in magnanimity. The red
setting is the most restrictive. The orange setting allows a little more
liberty. The green setting is as close as we can expect to get to “the way
we were.”
We have been told by our benevolent government that the traffic light system
will come into effect when DHBs have achieved a certain vaccination target.
What we haven’t been told is how long this form of restrictive activity –
because even the green setting contains restrictions – will last. My sense is
that the traffic light settings will be with us indefinitely. It is very
unlikely that a Government as inured to control as the present one is going to
take its hands of the levers of power and allow the full and unrestricted
exercise of civil liberties.
Of course all the above may be interpreted as an example of Simon Wilson’s covid
shouty blowhardness – ironic that criticism of people exercising their
freedom of expression should be so denigrated by a journalist of all people –
but he is entitled to his opinion as the covid shouty blowhards are to theirs.
But there are a couple of things that need to be remembered.
The first is that those who are elected to Parliament may be our
representatives in the House but they are also, as I have already noted, our servants – something that
seems to have been forgotten over the last 18 months. Edmund
Burke’s description of the role of the MP articulated in 1774 was developed
in a context vastly different from that of today where we have a (largely)
educated electorate and a much more sophisticated communications system – and
indeed society – from that of Eighteenth Century England. It would seem,
however, that his view still haunts the corridors of power.
The second point is that in the absence of an ability to communicate meaningfully
with our representatives and seek explanations from them we rely on the Fourth
Estate to attend to that as our proxies. And associated with that is the duty
on the Fourth Estate to hold our representatives to account and seek out full
and transparent explanations of their actions and policies.
So if demanding a slightly better performance from the Fourth Estate is
shouty blowhardness perhaps Mr Wilson at the moment seems, rather than holding
Government to account and asking the hard questions, to be no more than a
cheer-leader for the State. Ronald Regan expressed a different view when he said “Government is not the solution to our problem; Government is the problem”.
I will conclude by noting that some of the concerns that I have expressed in
this post have been very coherently articulated by Karl du Fresne is his piece “The
Cabal that controls the national conversation”. Du Fresne also wrote a
piece which was published in Spectator Australia and is also available in the
Otago Daily Times entitled “NZ
is being transformed, but not in a good way”. He eloquently expresses a
position in his conclusion which sums the problem up so much better than I can.
“The danger is that most New Zealanders, being
essentially passive, easy-going and good-natured, will ignore the tumult and
just try to get on with lives – until they wake up one morning and realise that
the open, tolerant and fair-minded society they grew up in has irrevocably
changed.”
The IT Countrey Justice 