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.

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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.

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[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.

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[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