THERE’S SOMETHING HAPPENING HERE?

Introduction

Bruce Cotterill wrote an opinion piece for the New Zealand Herald. It was published on Saturday 5 November 2022. It was about free speech and entitled “Free speech – worth speaking up for.” It presented some important and compelling arguments in support of the importance and necessity of freedom of speech.

Mr Cotterill’s article attracted some comment. Even something as fundamentally important as freedom of speech is a contentious topic. Critics of advocates of free speech use the ability to express themselves freely in opposition. If it were not for free speech they would be unable to do so. That in itself demonstrates the vital importance of freedom of expression.

One critic of Mr Cotterill’s piece took him to task for conflating freedom of speech issues and disinformation. The reasoning is clear. There is a move afoot to point out and deal with disinformation. That in itself is a freedom of speech issue. No matter how wrong headed a point of view might be, if there is no immediacy of physical harm caused by the expression of the point of view, freedom of expression allows it to be communicated.

I should observe at this stage that rather than the term “Free speech” I prefer to use “freedom of expression.” There are two reasons for this.

The first is that is the term that is used in Section 14 of the New Zealand Bill of Rights Act 1990.

The second is that the right as expressed in section 14 recognises that freedom of expression is a two way street. There is the right to impart information and opinions of any kind in any form – what could be called the “outward flow”. There is also the right to seek and receive information and opinions of any kind in any form – what could be called the “inward flow”.

In the discussion that follows I go another step further than Mr Cotterill and conflate what is referred to generically as “hate speech” with disinformation. Both concepts have freedom of expression implications. My reasons for conflating the concepts will become clear in what follows.

My discussion commences with a prologue, highlighting some of the remarks made by the Primes Minister of New Zealand Ms Jacinda Ardern at the United Nations General Assembly.

These remarks set the stage for the discussion that follows. The starting point for that discussion is the announcement by the Minister of Justice Ms Kiri Allan that “hate speech” legislation – legislation that has had a gestation period that would rival that of a blue whale – will be enacted by the general election in 2023.

The discussion then moves to consider two documentaries that were screened on television during the week of 31 October 2022. One is entitled “Web of Chaos”. The other was the final episode of the series “A Question of Justice” and addresses hate crimes.

I then go on to make some observations about the climate of fear that has continued to develop in New Zealand, fed not only by documentaries such as “Fire and Fury” and “Web of Chaos” but also by some disturbing and sonorous remarks by the Director of the New Zealand Security Intelligence Service, Ms Rebecca Kitteridge.

Taken collectively these various events and pronouncements provide a backdrop against which a discussion of hate speech legislation, mis/disinformation and the tension with the freedom of expression is going to take place.

I pose a question – taken from the opening lines of a 1967 song by Buffalo Springfield entitled “For What its Worth” – “There’s something happening here?”

Prologue

On 23^rd September 2022 Prime Minister Ardern addressed the United Nations General Assembly. She spoke generally of the issues of the day before segueing into a discussion of the new weapons of war, referring to cyber-attacks, prolific disinformation and the manipulation of communities and societies.

The cyberattacks are easily understood. It was the second part that was concerning because the weapons to which Ms Ardern referred were words.

She quickly reassured her audience that “even those most light touch approaches to disinformation could be misinterpreted as being hostile to the values of free speech we value so highly”.

Yet within moments she retreated from that view when she posed the rhetorical question  “How do you tackle climate change, if people do not believe it exists?”

The answer becomes clear when you line that comment up against the claim made during the height of the COVID pandemic that the Government was the sole source of truth. The answer is to shut down speech that is hostile to the received wisdom of the Government.

If there is to be a move towards further restrictions of speech – and this is in the wind following the announcement during the week of 30 October that the Minister of Justice will introduce “hate speech” legislation before the next election – who is to decide what speech should be restricted? When does opinion become misinformation? What is an accurate opinion as opposed to an inaccurate one? When does mis/disinformation become “hate speech?” If the law manages to shut down one side of an argument the community is the poorer for being unable to evaluate an alternative view.

Two Documentaries

On 1 November 2022, TV1 screened the documentary “Web of Chaos”. The following day, Prime screened the fourth instalment of the series “A Question of Justice” which addressed hate crimes.

I shall start my consideration of the documentaries by explaining why I conflate disinformation and hate speech.

The predominant theme of “Web of Chaos” is that of disinformation and the way that online networks have enabled its spread. Sadly, at no time is disinformation defined. This is curious because much of the documentary contains interviews or commentary from two academics involved in The Disinformation Project. One of these academics is Ms. Kate Hannah.

Ms. Hannah describes how people are drawn into mis/disinformation networks in in different ways. She refers to the “trad wife” viewpoint. She claims that white Christian pseudo-Celtic pseudo-Nordic ideology lies behind this viewpoint. They (presumably the “white Christian pseudo-Celtic pseudo-Nordic”) use Pinterest and Instagram to draw in other women who are interested in interior design, children’s clothing, knitting, healthy food for children.

From this innocent start people are drawn in towards a set of white nationalist ideas. Fair skinned children with braids is a danger signal according to Ms Hannah. She did not explain why this was the case.

She then referred to the association of these ideas with a toxic masculinity which had

 ”…very fixed ideas about gender roles, race, ethnic identity, national identity, nationalism and rights to  things like free speech – very influenced by a totally US centric model.” (“Web of Chaos” at 21.5) 

In essence these characteristics, according to Hannah, derive from US based alt-right perspectives.

If I understand Ms Hannah’s position disinformation is associated with extremist ideologies. These ideologies are nationalistic, white supremacist and far right.

This may be viewed alongside the material presented in the documentary by Professor Lisa Ellis, Political Philosopher, Otago University. She commented on some aspects leading to the rise of the Nazi’s in 1930’s Germany. The racist hatred of Nazis is reflected in some modern extremist organisations. Ms Hannah and Professor Ellis focus on the Far Right but similar racist hatred is expressed in other ideologies represented by Al Quaeda or ISIS.

The Stuff documentary “Fire and Fury” – which I have written about here – dealt with the rise of disinformation and the way in which that led to radical and violent action and extreme expressions of hatred especially towards politicians.

The very clear message from these sources is that disinformation and racial hatred or hate speech are two sides of the same coin. According to Ms Hannah they are inextricably intertwined. One inevitably leads to another. It seems that any discussion of disinformation ultimately ends up in a consideration of hate speech or extremist speech.

In her address to opening of New Zealand’s Hui on Countering Terrorism and Violent Extremism – He Whenua Taurikura the Ms Ardern made a similar association between disinformation and violent extremism. I discuss this in detail below.

It is for those reasons that I conflate disinformation and hate speech as both worthy of consideration in a discussion about freedom of expression.

1 November 2022 – Web of Chaos – TV 1

This TV programme was described as “A deep dive into the world of disinformation, exploring why it’s spreading at pace throughout Aotearoa and the world, with specialists warning of striking consequences for social cohesion and democracy.”

In many respects, both in the manner of presentation and the content presented it bore a close relationship to the “Fire and Fury” documentary put out by Stuff. It starts with a recognition of the way in which online platforms can enable communities but then rapidly descends into a critique of what is described as cultish behaviour.

Kate Hannah was joined by Dr. Sanjana Hattotuwa, also of the Disinformation Project and assisted by David Farrier, described as a journalist and podcaster. Farrier tracks the development of Internet communication from the early days of discussion groups to the current world of social media platforms and algorithm driven content.

A fair section of the programme focusses upon the Wellington Protests of February – March 2022, covering the same material as “Fire and Fury” and expressing similar concerns about perceptions of violent radicalism or extremism. A concern by Dr. Hattotuwa is that the Internet provides a means of communication and connection between previously isolated radicals. He describes it as the algorithmic amplification of psychosis.

Although it is not clearly explained there is ample evidence to establish that social media platforms use algorithms in the background. These algorithms are designed to track the search or interest patterns of a user and then provide more information of a similar type. The problem is that as the user follows a particular interest, more and more information associated with that interest will be provided. This can be troublesome if the users’ interests are oriented towards violence or extremism. More problematic is the situation where a user may hover around the edges of extremist content but be served up more and more content of that nature.

Both Dr Hattotuwa and Ms Hannah immerse themselves in the vast amount of what comprises misinformation, disinformation and radical extremism online.

 Dr Hattotuwa subscribes to 130 Telegram channels and groups. He concedes he does not read everything that comes across his screen. Because of the way he organizes the information, he claims that he gets an insight into the mindset of the people who frequent the channels.

Dr Hattotuwa discussed what he calls toxic information and commentary including material directed about the Prime Minister. What was extraordinary was the suggestion that this toxic informational landscape was being used by 350,000 New Zealanders – all grooming and harvesting. Dr Hattotuwa emphasizes “It is here. It is amongst you” (“Web of Chaos” at 29.30). No evidence is offered to support either the numbers or the assertion.

Ms Hannah expressed concerns about death threats that she received and records the ritualistic washing of hands she undertakes before she examines archival material – a form of symbolic disengagement from reading unpleasant material.  She does the same investigating information on the computer. Dr. Hattotuwa describes how he has two showers a day to symbolically wash away the detritus of the online material he has been viewing. These actions on the part of two individuals who are meant to be carrying out dispassionate and objective research is interesting if only for the level of subjectivity it introduces.

Marc Daalder – reporter on Technology and the Far Right which must be a clear indicator of other than an objective perspective – suggests that although there may not be funding of extreme groups in New Zealand the Internet allows the importation and availability of this material.

Ms Hannah suggests that groups are using New Zealand as a laboratory for disinformation strategies to see if they work.

The documentary offers no solutions other than to have Professor Ellis observe that today’s Digital Natives are less likely to be taken in by mis/disinformation and Conspiracy theories. She holds out some hope for the future.

What the documentary does do is to further enhance the aura of fear that was generated by the “Fire and Fury” piece, identifying what is perceived as a problem but leaving the door open as to solutions.

The conflation of disinformation with hate speech suggests that whatever proposals there may be for restricting or limiting hate speech should be applied equally to disinformation and possibly even misinformation. This would result in a significant limitation upon the freedom of expression.

Ms Hannah and Dr Hattotuwa expressed their views in the “Fire and Fury” documentary as well as the “Web of Chaos” documentary. They are entitled to express their views. My suggestion is that those views should be approached with caution. Although they may be able to point to evidence of what they describe as mis/disinformation, the way in which they interpret that evidence gives me some cause for concern.

Certainly they are neither dispassionate nor objective about their topic. This is evidenced by the reactions that they have to the content of the material that they view. They clearly are responding subjectively to it. They make value judgements rather than empirical or descriptive ones.

One astonishing connection was made by Ms Hannah to which I have referred above. In her discussion about connection between white nationalism and the slide towards extremism she said that an identifier of the groups of which she was critical involved the “advocacy of rights to things like free speech.” (My emphasis)

I trust Ms Hannah does not stand by that generalization. The implication is clear. If one is an advocate of rights such as free speech, one is a right-wing extremist, supporting white nationalism or white supremacy.

That conclusion cannot be supported by the facts. Those who advocate liberty are not extremists. Those who advocate freedom of expression are not far-right wing. For example, an examination of the Council of the Free Speech Union reveals some commentators who occupy a position on the Left of the political spectrum.

Ms Hannah’s sweeping generalisation does neither her argument nor her credibility any good. Dr Hattotuwa’s unsupported assertion that 350,000 subscribe to the toxic informational network does little for dispassionate analysis or objectivity.

Indeed, examples such as this cause one to examine with a greater critical lens, the assertions and validity of material that emanates from the Disinformation Project.

Indeed the whole tone of the “Web of Chaos” documentary had a whiff of hysteria to it. Suggestions of a far-Right conspiracy peddling disinformation with the objective of destroying democracy echo the themes underlying “Fire and Fury”.

This was my conclusion on that documentary

What the Fire and Fury documentary seeks to do is re-channel that fear to a form of opposition to and distrust of the contrarian movement. But after viewing the documentary I was left with an uncomfortable feeling. In all the talk about the weird conspiracy theories put about by the contrarians perhaps the underlying theme of the documentary is a conspiracy theory itself and it seemed to come from Kate Hannah who is one of the heads of the Disinformation Project. She implies that the real threat to democracy comes from a few people given to euphemistic language who make no secret of their views, who are openly all over social media, making no secret of their views and who are well known to Police and the Security Services. Do we really need to fear this vocal minority.

Perhaps Fire and Fury is an example of a mainstream media-based conspiracy theory based on fear and should be treated as such. Or perhaps it is rather a tale told by an idiot, full of Sound and Fury signifying nothing.

One writer described “Fire and Fury” as an example of agitprop. I am driven to agree. I ascribe the same word to the “Web of Chaos” documentary.

2 November 2022 – A Question of Justice – Hate Crimes

The documentary programme “A Question of Justice – Hate Crimes” was the fourth in a series which examined aspects of the New Zealand justice system. Earlier episodes focused on the role of victims in the system, the over-representation of Maori in the criminal justice system and whether there should be degrees of the crime of murder.

The style of the series was to take a case or a couple of cases as exemplars of a problem and then carry out an investigation focusing on the issues raised by those cases.

The episode on hate crimes focused on the Christchurch mosque attacks and the killing of Jae Hyeon Kim by white supremacists. The programme examined the nature of hate crimes and the proposals by the Royal Commission on the mosque attacks surrounding hate speech.

The documentary used an “investigative team” approach who reported back and developed an itemized set of problems or shortcomings and then examined possible solutions. Each episode focused on a certain case or cases.

The investigators themselves acted as reporters and were clearly neutral. Occasionally questions about shortcomings in the system might arise but these were stratagems for further lines of inquiry rather than criticism or advocacy for a particular point of view or outcome.

Documentary maker Bryan Bruce who leads the series said of the style of the show:

“I try not to go into any investigation with a ‘stance’. What I try to do is formulate questions that hopefully will get to the core of an issue. Then I talk to a whole lot of people wiser than me to try and find the answer”

Speaking of the first programme in the series about victims, Bruce observed:

“If I had to pick one thing that surprised me, it would be that I had always wrongly assumed the State prosecutes an offender to get justice for the victim. In fact, the prosecutor prosecutes the offender on behalf of the Crown and no one actually represents the victim in court… and that’s something I think we need to look at.”

Bruce stated that the overall purpose of the series was to use

“case studies to examine the law by which we are all bound. Viewers, I hope, will find it engaging but the purpose in making the series was not to produce sheer entertainment.”

The tone of the series was more that of the traditional documentary. It was generally dispassionate and objective and helped to identify problems and at time suggesting possible solutions without advocating any particular outcome.

In this respect the approach to hate speech differed from that of “Wed of Chaos” or “Fire and Fury”. In many respects the “Question of Justice” episode benefitted from a more measured and less emotional approach.

Rather than use dramatic footage and video tricks, it focused upon the nature of the problem and, although not specifically identifying it as such, the way in which the Royal Commission had addressed hate speech and the various tensions between freedom of expression and speech which incited hatred and violent action towards others. In this respect one was left with a sense that reason and objectivity predominated, and that some sense had been brought into the debate.

It would have been helpful if the documentary had detailed the solutions offered by the Royal Commission. I have written on the Royal Commission proposals here.

One of the matters that the Commission’s report was to abandon the use of the word “incite”. It suggested that the term “stirring up” was a better one. It described the way in which speech could potentially be transformed into action. However, the documentary closed by focusing on the term “incite”.

One thing that the documentary did not do was attempt to define “hate” or “hate speech”. In this respect it left and interpretative door wide open. It recognized the tension between freedom of expression and harmful speech. It acknowledged the difficulty in where to draw the line. But the wider association of “hate speech” and “disinformation” that has been touted by “Fire and Fury” and “Web of Chaos” remains.

31 October – 1 November 2022 New Zealand’s Hui on Countering Terrorism and Violent Extremism – He Whenua Taurikura

The focus of the hui was the prevention of terrorism and violent extremism. In her opening remarks, Prime Minister Ardern referred to threats to our security. Second and third on the list of the five top threats of most concern to New Zealanders was misinformation and hacking – a reprise of the concerns that she mentioned at the United Nations speech. She went on to say

• “Greater efforts are needed to detect dis-information campaigns and networks, and disrupt them, while calling out those that sponsor this activity. We are committed to working with communities, media, academia, civil society, the private sector – especially our social media platforms to counter the threat of disinformation, and I will talk about this and the Christchurch Call in the second part of my speech today.”

In discussing the Christchurch Call, Ms Ardern said:

“There must always be space for radical ideas; these are valued and vital in Aotearoa New Zealand as a free, open, democratic and progressive society.”

A reiteration of her acknowledgement of the importance of freedom of expression that she made at the UN

“However, when dehumanising and hateful ideas are part of ideologies that include hate and intolerance toward specific groups or communities, promoting or enabling violence, these may indicate a path toward violent extremism.”

To deal with this problem she itemized the importance of research the problems arising from the online environment upon which we are dependent and the importance of the international effort – the Christchurch Call.

Using the collective power of national governments who have joined the call the objective is to bring pressure upon technology platforms to change the online and societal landscape.

Ms Ardern then went on to talk about the development of a Strategic Framework for Preventing and Countering Violent Extremism, which includes solutions and approaches developed by society for society. A prevention framework includes a fund for preventing and countering violent extremism. The fund, over three years, will provide grants to civil society and community organisations to support them to deliver initiatives for building resilience to violent extremism and radicalisation.

Finally she stressed the importance of talking about national security, and in this respect the hui was addressed by SIS Director Ms Rebecca Kitteridge.

Ms Kitteridge made the following statement:

“Recognising a potential warning sign and then alerting NZSIS or Police could be the vital piece in the puzzle that ultimately saves lives.”

To that end the SIS has published a guide called “Know the Signs” to help identify terrorists. The Guide is directed towards violent extremism rather than non-violent forms of extremism. Ms Kitteridge suggests that if a person sees something that is “off” or that worries or concerns, the suggestion is to consult the guide and try and work out if the person is on the road to perpetrating an attack.

The guide lists 50 signs from the very obvious (like writing messages on a weapon) to a person who is developing an “us versus them” world view. The SIS is monitoring some 40 – 50 potential terrorists but now a new suspicious class has emerged – those driven by politics. Ms Kitteridge suggests that this could be motivated by the measures that the Government took over COVID or other policies that are interpreted as infringing on rights – what Ms Kitteridge describes as a hot mess of ideologies and beliefs fuelled by conspiracy theories.

It is clear that the publication of the guide means that the SIS recognizes that it cannot do their work alone and that they need the help of the public.

In the introduction to the Guide Ms Kitteridge states:

“I am asking all New Zealanders to look out for concerning behaviours or activities that could be easily observed, and to report them. You may be uniquely placed to see the signs, and to help NZSIS to understand the true threat an individual poses.”

Paul Spoonley obviously buys into the SIS proposal but sees it as a first step. He sees a problem in upskilling people to understand what it is that they are seeing.

So citizens are being encouraged to monitor friends, family, neighbours and those around them, and must be watchful for the “signs”. They must be upskilled to recognize the “signs”. This air of suspicion is grounded upon fear. This has echoes of the “Red Scare” in the USA between 1917 and 1920. The Red Scare was the promotion of a widespread fear of a potential rise of communism, anarchism or other leftist ideologies by a society or state.

There was a second Red Scare in the USA from 1947 – 1957 associated with the rise of McCarthyism and the fear of Soviet espionage in US Government agencies and the “witch-hunts” that followed. Fear and suspicion characterized both of these periods. History is repeating itself but on these shores.

The Fear Factor

When the COVID pandemic hit, the Government was able to obtain compliance with a draconian suspension of our rights and liberties. It did this within a context of a climate of fear. The fear was that if the restrictions were not put in place people would contract COVID and die.

The fear factor was a part of the Government strategy through to the vaccination programme, the mandates that were imposed and through until the so-called “traffic-light” system.

It became apparent, after the numbers began to subside, that the fears of death had been overstated. The “fear factor” was received with skepticism on the part of the public which was prepared to assume risk and take their own measures to protect their health and well being.

Now the fear factor has shifted. The shift has been a gradual one. Instead of the fear of disease and death, what is being advanced is a fear of attacks upon democracy and our way of life – the scare tactics that were applied in the US with the fear of the Communist menace and infiltration.

This narrative began during the pandemic and was highlighted during the vaccine mandates. Those who resisted the mandates – the anti-vaxxers – were viewed as a contrarian threat to the Government line that emanated from “the podium of truth.”

This has morphed into a fear of the erosion of democracy arising from disinformation. The likelihood of terrorism in our own backyard. The need for vigilance. An insidious vaguely identified threat to our way of life.

This fear is magnified by messaging from our politicians. It is suggested that the election next year will be a different one as politicians – at least from the Government – are afraid of walking the streets and canvassing for votes as they once did. An air of hostility is abroad – or at least that is the narrative.

The cultivation of this atmosphere of fear enables the Government to justify erosions of liberty. One example of this will be to target “hate speech” and its close relative, disinformation. A fearful public will be more willing to accept interference with the freedom of expression if it may be seen to address a problem that will supposedly lessen or reduce the fear.

There is a wider issue arising from the climate of fear. I have already addressed it in some detail in an earlier post entitled “Fear Itself”. In that post I conclude with a consideration of the vested interest of mainstream media in promoting the “narrative of truth”. I said there:

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

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

I also made some observations on the fear factor engendered by the agitprop “Fire and Fury” documentary. In that piece I said:

It is a matter of comment in mainstream media that some of the leading lights of Voices for Democracy and other contrarian groups are putting themselves forward for election in the upcoming local body elections. Some of them have done so before. None of them have so far been elected. Yet there is concern about contrarians exercising their democratic right to stand for election. As I understand it the availability of democratic process does not depend on the quality of your beliefs, although those beliefs may cause rejection by the electorate.

So where does this leave us. Certainly during the early days of the Covid-19 Pandemic the Government was able to prey on public fears of the outbreak of plague and imminent death to justify lockdowns and to enable the acceptance of discriminatory treatment of citizens based on their vaccination status. The initial response was unplanned but necessary. But we are past that now

What the Fire and Fury documentary seeks to do is re-channel that fear to a form of opposition to and distrust of the contrarian movement. But after viewing the documentary I was left with an uncomfortable feeling. In all the talk about the weird conspiracy theories put about by the contrarians perhaps the underlying theme of the documentary is a conspiracy theory itself and it seemed to come from Kate Hannah who is one of the heads of the Disinformation Project. She implies that the real threat to democracy comes from a few people given to euphemistic language who make no secret of their views, who are openly all over social media, making no secret of their views and who are well known to Police and the Security Services. Do we really need to fear this vocal minority?

Perhaps “Fire and Fury” is an example of a mainstream media-based conspiracy theory based on fear and should be treated as such. Or perhaps it is rather a tale told by an idiot, full of Sound and Fury signifying nothing.

Conclusion – What it Is is Becoming Clear

The debate about so-called “hate” or “dangerous speech” must take place in a calm and objective environment. I realise that this is a sentiment based more on hope than reality, for the subject is an emotive one.

But the debate must not take place against a backdrop of fear which may mean that the solutions proposed are more extreme than the problem itself.

The growing panic on the part of some of misinformation and disinformation feeds into the wider landscape of concerns about “messaging” and, as I have argued, seems to have fed into the “hate speech” milieu with calls for regulation.

Comments like “disinformation corrodes the foundation of liberal democracy” – made by Ms Ardern – add to the scaremongering, softening up the populace so that they become pliable and amenable to greater restrictions on the freedom of expression and ultimately their liberty. It won’t just be about “hate speech.” The net will become incrementally and subtly wider to catch other forms of dissident and contrarian opinion.

Indeed, as Thomas Jefferson said “eternal vigilance is the price we pay for liberty” (1817) but perhaps not the form of vigilance suggested by Ms. Kitteridge.   

We must be vigilant to ensure our liberty, and its foundation stone freedom of expression, is not further eroded.

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Postscript

The title of this post is taken from the first line of a song recorded by Buffalo Springfield in 1966 entitled “For What its Worth”. The lyrics follow:

There’s something happening here

But what it is ain’t exactly clear

There’s a man with a gun over there

Telling me I got to beware

I think it’s time we stop

Children, what’s that sound?

Everybody look, what’s going down?

There’s battle lines being drawn

Nobody’s right if everybody’s wrong

Young people speaking their minds

Getting so much resistance from behind

It’s time we stop

Hey, what’s that sound?

Everybody look, what’s going down?

What a field day for the heat

A thousand people in the street

Singing songs and they carrying signs

Mostly say, “Hooray for our side”

It’s time we stop

Hey, what’s that sound?

Everybody look, what’s going down?

Paranoia strikes deep

Into your life it will creep

It starts when you’re always afraid

Step out of line, the men come and take you away

We better stop

Hey, what’s that sound?

Everybody look, what’s going down?

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

Liberty, Freedom and the Lessons of History

There is a point of view that suggests that the current rhetoric on “freedom and rights” derives from American conceptions of individualism and individual freedoms. This point of view has been articulated by Nicky Hager who expressed a justifiable concern that many of his associates were being swept up and high-jacked by unsavoury elements whose principles and values were antipathic to theirs.

In his discussion however, he made the following observation about the concept of freedom. In suggesting that there is a Trumpian influence through the rhetoric of many of the protesters he observed that US ideas about freedom meant

“freedom of the individual to do what they like and stuff everyone else. In New Zealand, the dominant values are much more about community and caring for each other. Freedom sounds good, but it’s a slogan for deeply conservative and unattractive ideas that deny or avoid the responsibility we have for others.”

Hayden Thorne makes a similar suggestion within the context of the rhetoric about the rights of the individual to refuse vaccines and keep a jobs.  He argues that this is an import from the United States and goes on to suggest that first it corrupts the importance of American constitutional freedoms and shows a serious misunderstanding of our culture and constitutional structure.

To suggest that the concepts of individual rights and freedoms are an import from the United States is incorrect.

Freedom  – or liberty as I prefer to call it – is not a peculiarly American ideal and historically its concepts extend further back in history than the American Revolution.

Perhaps one of the most articulate and eloquent expressions of the nature of liberty (or freedom) came not from America but from the pen of the English philosopher John Stuart Mill in his classic “On Liberty”.

Mill considered that the tyranny of government needed to be controlled by the liberty of citizens.

 There were two ways in which this came about. Citizens had inherent rights and citizens thereby established constitutional checks on the government which, with the consent of the community, represented its interests. These checks imposed conditions on the governing power, thus preventing its absolute exercise.

In some respects this hearkened back to Enlightenment thinking about the nature of Government expressed by Thomas Jefferson (along with John Adams and Ben Franklin) 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”

We can see in that statement the emphasis is on individual rights. The duty of Government is to secure or ensure these rights and then powers of the Government to do so derive from the consent of the governed.

However, although these ideas received their best known expression in the Declaration of Independence they were founded upon the writings and thinking of the English philosopher John Locke and in particular his Second Treatise on Government. Locke identified life, liberty and property as the three fundamental rights and that a Government existed, among other things, to promote public good, and to protect the life, liberty, and property of its people.

Thus we can see a thread running through the argument of liberty as an aspect of individual identity which should be protected by and yet from the Government. If a Government fails to ensure the protection of life liberty and the pursuit of happiness, the consent of the governed may be withdrawn and the Government loses its mandate to govern. But Mill was very clear on the extent of government power as it affected the individual

“That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant … Over himself, over his body and mind, the individual is sovereign.”

This did not arise from a concept of natural rights because Mill based his standard on utilitarian principles and arising from that there were three basic liberties. Mill ranked these in the following order:

1. The freedom of thought and emotion. This includes the freedom to act on such thought, such as the freedom of speech
2. The freedom to pursue tastes (provided they do no harm to others), even if they are deemed “immoral”
3. The freedom to unite so long as the involved members are of age, the involved members are not forced, and no harm is done to others

Mill conceded that in certain situations and circumstances  these freedoms can be overridden but in modern and civilized society there was no basis or justification for their removal.

As has been noted, Mill ranked freedom of thought as the most important basic liberty. Opinions ought never to be suppressed. Indeed he recognized that there may be false beliefs, beliefs that are partly true and those what are wholly true. All of these provide some benefit to the common good. He wrote:

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.

One of the major criticisms of the current “rights” or “freedoms” rhetoric is that it is selfish and self-centred. There are several ripostes to this.

The first is that rights in and of themselves are inherently individualistic. Individuality is by definition the thriving of the human person through higher pleasures as Mill put it. Individuality promotes creativity and diversity and, as a corollary to that, conformity carries with it dangers.

Secondly, the word “selfish” in modern parlance is a term of criticism rather than a term of celebration. The first objective of an individual is to ensure his own survival. Only then can he enjoy the liberties that accompany that survival. “Selfish” is used to describe this but “self-interest” and “self-determination” probably are better encapsulations of these aspects of individual liberty. As opposed to this is altruism.

Altruism is all very well if it is freely assumed as a conscious choice. The problem is that enforced altruism – that it is a moral obligation to live for the sake of others – is a moral obligation that at times is incorporated into law. But there are frequently times when enforced altruism challenges self-interest or requires an individual to accept a lesser enjoyment of life than that they may otherwise achieve by virtue of their own efforts.

In considering, therefore, the nature of liberty, Hager’s comment “freedom of the individual to do what they like and stuff everyone else” – is not only a rather ineloquent albeit incorrect articulation of an aspect of self-interest and self-determination but it is wrong. Hager balances this against what he describes as what he describes as New Zealand values of being more about community and caring for each other. In this way he argues that rights-based rhetoric is inimical to the caring community but it is not. A community is comprised of individuals rather than of a hive-mind.

Each individual enjoys liberty as described by Mill. Within that liberty there is the liberty of choice – the choice to remain aloof from or become involved as John Donne put it “in mankind”. It is my choice to care for my neighbour and to assist my neighbour but not to the detriment of my own existence. Liberty is not for the purpose of selfish indifference which may be the real root of Mr Hager’s complaint.

But liberty ensures that that a person should be left as free to pursue his own interests as long as this does not harm the interests of others. Mill’s system of liberty was intended to bring greater benefit to an individual than physical or emotional coercion. This means that a person may, without fear of sanction, do harm to himself. The only time that a Government should impose a sanction on a person would be for neglecting to fulfill a duty to others (or causing harm to others), not the vice that brought about the neglect.

The difficulty that has arisen lies in the polarization of points of view. For some extraordinary reason those who advocate for liberty are being equated with organisations that have little interest in the true nature of liberty or freedom characterized by Mill or by Enlightenment thought. There is little doubt that some of those organisations are fellow travellers with those who currently advocate for freedom or for liberty but this does not mean that they have high-jacked the theories of liberty nor the practice and reality of liberty.

Rather it seems that certain elements seem to apply a stereotype to those who advocate for freedom that may not be justified and that, like most stereotypes, ignores individual difference and diversity.

This leads me to a few observations on Mr. Thorne’s position. His starting point is that we should learn from history, but he has overlooked the history of the philosophical underpinnings of liberty . That is demonstrated by his assertion that “individual rights dialogue was corrupted by the American right – in particular, the religious right – to protect what it saw as important, at the expense of other groups in society. Debates about abortion and gun control became infected with an emphasis on individual rights.”

I would suggest that the individual rights dialogue referred to by Mr Thorne pre-existed the 1970’s and the rise of the religious right, as I have already demonstrated[1]. That the dialogue started to be used as a justification for elements of various societal debates is neither unusual nor concerning.

Indeed the debate about abortion in the US is between the individual self-determination that a woman has to terminate a pregnancy on the one hand (grounded as Mr Thorne will be aware from his study of Roe v Wade and the cases that preceded it like Griswold v Connecticut not only in individual rights but underpinned by privacy considerations)  and the rights of the unborn child (as an individual) on the other. These tensions are well known and common when the law and differing moral standards collide.

The debate about gun control is grounded upon the various nuanced interpretations of the Second Amendment to the US Constitution and again involves a conflict between rights – one grounded in a constitutional instrument and the other on aspects of individual safety – again a tension between competing interests with which the law is familiar.

I do agree with Mr Thorne that to try and import US Constitutional theory into New Zealand law misunderstands our constitutional arrangements. Unlike the US Constitution and its Amendments, we do not have a “higher law” that can be employed to test the legitimacy of Acts of Parliament. The New Zealand Bill of Rights Act 1990 (BORA)  is more an aspirational piece of legislation than a constitutional one. It argues that in interpreting the law Judges should apply a “Bill of Rights friendly” approach – I know this is a gross oversimplification of the nuances of section 6 BORA and for that I apologise. On the other hand there is a specific provision – section 4 – that prevents a Court from holding that an enactment is invalid because it is inconsistent with the Bill of Rights Act. Thus it is not possible for a New Zealand Court to declare a piece of legislation unconstitutional as the US Supreme Court has been able to do since the early Nineteenth Century.

But that does not mean that the various individual rights of life, liberty and the pursuit of happiness and property have vanished, simply because constitutional arrangements are different. Although BORA may not occupy the supreme position of the US Constitution, it does articulate a number of rights such as freedom of expression (to impart and receive information) in section 14, freedom of movement in section 18, freedom of association in section 17, freedom of peaceable assembly in section 16, freedom of thought, conscience and religion in section 13, the right to refuse to undergo any medical treatment in section 11. These and the other rights contained in BORA (I have cited a brief selection)  are a bottom line. If the Government wishes to enact legislation that is inconsistent with BORA the Attorney-General must advise Parliament – section 7. That advice has rarely prevented inconsistent legislation being enacted but at least the Legislature is put on notice.

Furthermore any existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part – section 28. Thus the rights in BORA are not exclusive.

Another important point about the BORA rights is that they are primarily individual rights and provide a measure against which the acts of the legislature, executive and judiciary may be tested along with the actions of any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law. Thus BORA acts (or should act) as a restraint on Government power which may involve interference with the rights of individuals.

It will be well-known that over the last two years the powers invoked by the Government have infringed upon and have abrogated many of the rights of New Zealand citizens that are contained in the BORA. In fact the exercise of these powers have resulted in a reversal of the principle that everything that is allowed unless it is prohibited to one (during lockdowns) of everything is prohibited unless it is allowed.

It is therefore not unexpected that individuals may feel concerned or upset that their individual rights have been and continue to be infringed, and that they may wish to express themselves and their dissatisfaction. But in doing so they are calling not upon Trumpism or the reinterpretation of rights rhetoric by the American religious right but on a long history of protest against the wielding of arbitrary Government power against individuals that goes back beyond Mill and Locke and indeed as far back as the Glorious Revolution of 1688 and the Petition of Right of 1628.

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[1] I imagine that Mr Thorne is familiar with Rick Perlstein’s tetrology “Before the Storm”, “Nixonland”, “The Invisible Bridge” and “Reaganland”. If he is not I recommend them.

Self Evident Truths

There was an interesting juxtaposition of views expressed in the New Zealand Herald on Saturday 6 November 2021. Bruce Cotterill commented on the ease with which the Government has limited out liberty – and continues to do so in his piece “Freedom – It’s not just another word.”

Renee Liang presents a slightly more relativistic approach in her piece entitled “What freedom in Covid times look like from where I stand”.

Ms. Liang expresses concern at what she considers to be the irresponsible exercise of freedom commenting

“ If you, like me, watched aghast as maskless crowds invaded parks and squares, waving signs and demanding we set a date for “liberation”; if you’ve suddenly felt unsure when a colleague starts talking about “my rights”; then you’re not alone.”

I don’t know if I was aghast and I did not share Ms Liang’s obvious irritation. What did concern me was that a large number of people were exercising a right that they once had, but which had been taken away from them by the naked exercise of power, and in so doing risked a sanction that may be imposed for breaking the law.

I suggested that Ms Liang approached the issue of freedom from a relatavistic perspective. The says

“The word “freedom” has always had different meanings for different groups. For some it means a group of people asserting their right to control their own destiny. The fight against slavery, union actions for better working conditions and the Black Lives Matter movement all fall into this category. Closer to home, the New Zealand Wars, the Bastion Point occupation and the Blackball strike are testament that New Zealanders hold the concept of freedom highly. All these movements emphasise a fair deal – for all, not just for the group protesting. They also push for equitable representation in government as a means to maintain freedom.

In contrast, there are those for whom “freedom” means their individual right to enjoy their personal lives and belongings. For these people, any organisation which curtails this – especially the Government – is to be resisted. Throughout history these individual beliefs, quite reasonable on their own, have been harnessed into movements that actually work to curb rights overall. When people fear loss of individual freedoms, it’s easy to scare them into protecting the positions of businesses or specialised political interests. Spoiler: we’re in the middle of one such period in history.”

In delineating the issue in this way she contrasts collectivist “freedom movements” with freedom as an aspect of individual identity and indeed as her article progresses she characterises freedom as something which we can all enjoy as a collective society. That is an outcome devoutly to be wished but in framing the argument as she does, she overlooks an important aspect of freedom or liberty that Mr Cotterill identifies which is an aspect of individuality.

He characterises freedom as

“Freedom to do what we want. A morning coffee with a colleague. A beer with some mates. A swim at the local pool. A barbecue with friends. A visit to my mum. Perhaps a weekend away. Or even the ability to jump on a plane and have a holiday.”

In expressing his perspective in this way Mr Cotterill is in fact identifying certain rights that are (theoretically) guaranteed and recognised by law. The morning coffee with a colleague or the beer with mates is encapsulated in section 17 of the New Zealand Bill of Rights Act 1990 which states (with admirable and eloquent simplicity) “Everyone has the right to freedom of association.”

“A visit to my Mum” once again captures the freedom of association as well as the right to freedom of movement expressed in section 18 which provides “Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand.”

His comment about the ability to jump on a plane and have a holiday again invokes section 18 which provides “Everyone has the right to leave New Zealand.” (s. 18(3)) and “Every New Zealand citizen has the right to enter New Zealand” (s. 18(2)).

These rights were an issue is the recent case of Bolton v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2897. Mr Bolton applied for an exemption from the requirement to enter MIQ upon returning to New Zealand from a business trip. It transpired that the bureaucratic decision makers did not interpret the legislation under which they were operating in a way that was most consistent with the New Zealand Bill of Rights Act.

After a reconsideration, MBIE granted Mr Bolton’s application although the rather peevish comment by the Minister in charge of the Covid 19 Response Mr Chris Hipkins about rich people buying their way to the front of the queue seems to epitomise left-wing politics of envy. Mr Bolton sought – and obtained – a decision according to law and proper legal process. In so doing he has highlighted the fact that despite the comment by Mr Cotterill that the Government appears to becoming habituated to depriving citizens of their rights, nevertheless those rights still play a part and are a required element in bureaucratic decision making.

On the other hand, in considering the provisions of the empowering legislation (the Health Act 1956) the Court of Appeal in Borrowdale v Director-General of Health [2021] NZCA 520 concluded that there was a justified limitation of the rights under the Bill of Rights Act and the reality was that Parliament intended to authorise the issuance of orders that would curtail the rights of NZ citizens.

It is important to remember that the New Zealand Bill of Rights Act was enacted to secure the rights that it guarantees from interference by the State rather than by private citizens . But the Act does contain a couple of escape clauses. Section 4 states that a court cannot hold a provision of any enactment to be invalid by reason only that the provision is inconsistent with the Bill of Rights Act. The other section indicates that rights are not absolute. Section 5 provides that they may be subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

I am not going to go into a discussion about the provisions of the Health Act 1956. But this is not the only legislation that has been on the books that has had the potential to significantly curtail the freedoms of New Zealanders.

When I was at law school we spent some time studying the Public Safety Conservation Act 1932. In brief this legislation conferred upon the Government very broad powers in times of ‘emergency’ and was invoked with sweeping effects at the time of the 1951 Waterfront Strike. In essence the Act enabled government by Proclamation and regulation rather than by proper Parliamentary process during the time of a declared emergency. It was repealed in 1987. But it is an example of the way in which Governments can arrogate unto themselves sweeping powers that can, with the stroke of a pen, remove the liberties which we enjoy and to which w are entitled

So the concerns that Mr Cotterill expresses about the willingness of governments to interfere with freedoms is well founded. Indeed, history provides numerous examples. Usually there is some form of perceived emergency which justifies the interference with freedoms and often a willing and sometimes reluctant population will go along with that – at least for a while. And such has been the case with the Covid pandemic. His characterisation of the government as “authoritarian” would seem to be reasonable. It was precisely this type of outcome that an MMP Government – one governing by consensus rather than decree – was designed to prevent. Under Mr Cotterill’s “authoritarian” government we can do only what the State allows – a reversal of the principle of law in a democratic society which is that everything is lawful unless the law says otherwise.

It seems that Ms Liang is content with the authoritarian style, focussing on the various group and collective identities that populate her narrative whilst conveniently overlooking the fact that society is comprised of individuals with their own hopes, fears, dreams and desires. But she sees freedom as a collective attribute rather than an individual right. And it is there that she and I part company and why I favour Mr Cotterill’s approach which more accurately epitomises my understanding of liberty and freedom.

The State generously is prepared at some undetermined time in the future to restore to us our freedoms – those freedoms, guaranteed by the Bill of Rights Act – of which it deprived us. Magnanimous of them. And are we to be grateful? As I have said in an earlier post – it is time for the Government to get out of the way.