Eroding Freedom of Expression

Introduction

There is an ambivalence in New Zealand towards freedom of expression. Freedom of expression is guaranteed in the New Zealand Bill of Rights Act 1990. It guarantees not only the expression of information – the outward flow – but also the receipt of information – the inward flow.

The ambivalence has been growing. Freedom of expression has been pushed to the margins. Although, with a few exceptions, the Government has not actively or outwardly restricted freedom of expression it has nevertheless narrowed the scope of what may be considered acceptable.

The narrowing of scope has been led by the Prime Minister, Ms. Jacinda Ardern. Ms. Ardern is a trained communicator in that she holds a degree of Bachelor of Communication Studies (BCS) in politics and public relations.

Public relations is the practice of managing and disseminating information from an individual or an organization – in her case the Government – to the public in order to influence their perception. Ms. Ardern has done this very successfully. But in managing and disseminating the Government message she has been very careful to ensure that contrary views, criticism and contradiction are pushed to the sideline, so that those views are diminished and devalued and are of no account.

In this piece I trace the trajectory of the erosions of freedom of expression and the growth of ambivalence towards the expression of contrary opinions. I start with the Christchurch Call – perhaps a curious and non-contentious beginning but one that, as it has progressed, has chilling consequences for freedom of expression. I follow with the “sole source of truth” declaration and then embark upon an excursion into the validation of discrimination as an example of the blasé and contemptuous attitude of the Prime Minister to those who chose not to be vaccinated and who, by implication, express a contrarian perspective. I shall conclude with the latest example of Ms. Ardern’s erosion of the freedom of expression when she addressed no lesser a forum than the General Assembly of the United Nations.

 The Christchurch Call

I have written elsewhere about some of the problems with the Christchurch Call. The call to regulate content online is a difficult one as I have pointed out elsewhere.  I see this as a starting point for what appears to be an ambivalence or a relativistic approach towards freedom of expression.

The Christchurch Call is a community of over 120 governments, online service providers, and civil society organisations acting together to eliminate terrorist and violent extremist content online. With that objective there can be little dispute. The difficulty is that extremist content, abhorrent though it might be, should still be allowed a voice as long as it does not advocate imminent harm to people or property. For a discussion of assessing whether expression should be stifled or censored see here.

The Christchurch Call has noble goals but there are a number of concerning features about it.

1. It is government led – the principal drivers for the Call are national governments. Whilst preventing terrorism is necessary for the safety of civil society, such projects may develop “mission creep” and although there is a recognition of the importance of the freedom of expression, “extremism” or “extremist speech” are slippery concepts and depend very much upon the eye of the beholder and the ear of the listener.

• As an example of the issue of “mission creep” the scope of the areas of concern for the Call are expanding to include algorithms, radicalization and gender. The targets of extremism have been expanded to women, LGBTQIA+ communities, youth, and intersectional communities – quite a reach beyond the terrorist lone wolf shooter or bomber and a clear indicator that what the Call is really about is “hate speech.” I have discussed whether “dangerous speech is a better term and how it should be dealt with here and here.

The Call seeks to achieve a “safer Internet” and has enlisted not only national governments but private organisations and some of the tech platforms.

The Call states that

“the future of the internet and the future of our free, open, societies are intertwined. As we look ahead our legacy must be a free, open, secure and interconnected global internet as a force for good, a place where human rights are promoted and upheld and where technology contributes to social mobility and empowerment for all.”

These are laudable goals but the subtext is one of overall control and more importantly overall control of a communications medium. And such control must necessarily impact upon freedom of expression.

The final paragraph of the 2022 Communique issued by Ms Jacinda Ardern and M. Emmanuel Macron is a chilling example of the possible “mission creep” to which reference has already been made.

“Ahead of the Paris Peace Forum, New Zealand, France, and other Call community members with an interest will consider some of these related issues – including disinformation, harassment, abuse, and hatred online, and issues affecting youth – to understand how we might apply what we have learned working on the Christchurch Call, where we can support and engage on related initiatives such as Tech for Democracy, the Summit for Democracy, the Freedom Online Coalition, the Declaration for the Future of the Internet, the Aqaba Process, the Global Partnership for Action on Gender Based Online Harassment and Abuse, the Global Partnership on Artificial Intelligence, and the International Call to Stand up for Children’s Rights Online, and where there is multistakeholder interest in new work programmes separate to the Call.” 

Clearly the Call methodologies and approach are intended to expand to other areas and issues that are distinct and separate from the central goal of terrorism and extremist content that advocates violence.

This may not amount to a direct assault upon freedom of expression but it demonstrates the willingness with which State and Government actors and representatives are prepared to erode and whittle away freedom of expression from the margins. The use of generalized language such as “extremist” without a clear definition means that, as Humpty Dumpty said in Alice Through the Looking-Glass a word “ means just what I choose it to mean—neither more nor less.”

The Single Source of Truth

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

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

Although this pronouncement was made in the context of information about the COVID-19 pandemic it is clear that it goes much further.

The levels of meaning that can be drawn from this are as follows:

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

This statement discourages any sort of debate, any sort of discourse. Although the freedom of expression protected by the Bill of Rights Act 1990 guarantees the right to impart and receive information, the suggestion that any other person may be able to contribute to the debate is eliminated and the right is negated by the suggestions that no other information is needed apart from that of the State whose pronouncements are “truth” and any dissent should be dismissed.

It is certainly dangerous to the governed in a democracy for any politician, let alone a Prime Minister, to declare that they, or their Government, are a single source of truth.

The Validation of Discrimination

Once the vaccination programme got underway in New Zealand Ms. Ardern endorsed the emergence of a de facto two-tier society.

During a video interview, the PM admitted that the then rules granted vaccinated citizens more freedoms. Asked by a journalist from the New Zealand Herald who asked:

“You’ve basically said, and you probably don’t see it like this, but two different classes of people if you’re vaccinated or unvaccinated. If you’re vaccinated you have all these rights.” Ardern responded enthusiastically, nodding along as she replied: “That is what it is.” She continued:

“If you are still unvaccinated, not only will you be more at risk of catching COVID-19, but many of the freedoms others enjoy will be out of reach. No one wants that to happen but we need to minimize the threat of the virus, which is now mainly spreading amongst unvaccinated people.”

This from a a self-proclaimed believer in the “values of human rights, social justice [and] equality”

What was concerning was that there were many who actually endorsed the two-tier approach, creating division and hostility against those who were unvaccinated or chose not to be. Animus against anti-vaxxers and contrarians began to grow.

Although this may not have a lot to do with freedom of expression the divisiveness that the two-tier approach caused had the effect of marginalizing anyone who expressed a contrary view.

Misinformation and Disinformation

Coincidentally there developed over the pandemic emergency a greater use of two terms – misinformation and disinformation. These became predominantly news media shorthand for any statements that departed from the received wisdom of the government.

Misinformation meant information that misled. Disinformation was false information that the disseminator intended to mislead – in other words lies.  The problem was and still is that those words lack certainty. It seems that they mean what people using them want them to mean and consequently they have taken on a perjorative aspect.

In June 2021 the Classification Office, headed by the then Chief Censor Mr David Shanks, released a paper entitled “The Edge of the Infodemic: Challenging Misinformation in Aotearoa”. It argued that misinformation\disinformation (neither term defined in the paper) was a problem, that it came primarily from Internet based sources, that when people rely on misinformation to make important decisions it can have a harmful impact on the health and safety of communities and can also affect us on a personal level, contributing to anxiety, anger, and mistrust.

It argues that that we should be looking at solutions that work to increase access to good information; lower the volume of misinformation; improve resilience to misinformation; and build levels of trust and social cohesion that can serve as a counter to the more harmful effects.

That this document emerged from the Classifications Office is something of a concern. The Classifications Office is involved in the administration of the Films, Videos and Publications Classification Act 1993. That Act allows for censorship of films, videos, publications, and online content in certain limited and restricted circumstances.

It seemed to be part of a concerted effort on the part of the Classifications Office to expand the scope of censorship and information control currently enjoyed by the Classification Office – another example of “mission creep”.

One of the issues that features in the paper is the importance of social cohesion. At first glance this concept is unremarkable. It suggests societal togetherness in the pursuit of common goals.

The problem is in what lies beneath the term. I would suggest that what it really suggests is conformity not so much in behaviour but in thought. The term implies collective agreement or acceptance of a particular narrative – in this case the sole truth that flows from the State.

Thus any expression of disagreement or dissent is seen not only as an affront to the ”truth” propagated by the State but as an assault or an attempt to erode the monolithic structure of “social cohesiveness” or the complacent conformity that the State requires.

Lest it be thought that I am focusing on a single example – “The Edge of the Infodemic” paper – at an Otago University conference about “Social Media and Democracy” in March 2021, Mr Shanks told the conference the way we regulate media is not fit for the future.

“We can be better than this. I think there’s some very obvious moves that we can do here to make the current regulatory system and framework more coherent for a digital environment.” [1]

Before that, in October 2019 Mr Shanks claimed that an entirely new media regulator may be required.[2]

At the Otago University Conference were two representatives of the Disinformation Project – the Director, Ms. Kate Hannah and Dr. Sanjana Hattotuwa. The Disinformation Project has been observing and analysing open source, publicly available data related to Covid-19 mis- and disinformation on social media, mainstream media, and in physical and other digital forms of information and knowledge dissemination.

From August 2020, the Project expanded its brief (yet more “mission creep”) beyond Covid-19 to consider mis- and disinformation ecosystems in New Zealand, including the seed and spread of ‘dangerous speech’, hateful expression, and criminal behaviour. The scope of the study involved looking at global trends, themes, narratives, and actors who influence online harms in New Zealand.

Although the Disinformation Project is not a State Actor, its commentary and thrust is directed towards material that is considered harmful because it is contrary to the received wisdom that is a part of the Government message. In this way, perhaps unintentionally, the Disinformation Project becomes complicit in the Government as the sole source of truth narrative.

To further emphasise the role of the Disinformation Project, the focus seems to have shifted from mis/disinformation about COVID-19 issues into the wider political scene. Dr Hattotuwa of the Disinformation project in commenting on the role of Voice for Freedom observed that the group skilfully avoids attempts to regulate mis and disinformation and suggests that Voice for Freedom represents a threat to democracy[3] Clearly from this comment the Disinformation Project is suggesting that there should be some form of regulation of mis or disinformation. In the meantime, as Stephen Judd of Fighting Against Conspiracy Theories Aotearoa (FACT), commenting upon contrarian candidates for local body elections, suggests

“People who hold a set of beliefs about the legitimacy of our institutions, and who are conspiracy theorists and who hide that because they think it would harm their chances of being elected, aren’t operating in good faith.

“So, one of the best things we can do is provide more publicity and exposure to candidates because that ultimately is what leads the public to have a fair view of what they are about.”

Thus we have developing a number of strands that seem to be directed towards suppressing or marginalizing dissent or disagreement. Although the Disinformation Project casts a sinister shadow over the terms, and although the Classification Office may see misinformation and disinformation as having potential objectionable qualities, the reality is that every expression of disagreement or dissent, every expression of a contrary view or opinion, every expression of a challenge to the State message is a part of the normal discourse of society. Disagreement is a fundamental aspect of being human. We all have differing points of view, beliefs, values and standards. And it is part of the democratic tradition that we should be able to express those views.

Of course, associated with that is the fact that those who disagree with us must have the right to express that disagreement. And so the cacophony of debate and the exchange of points of view takes place.

It may be that some points of view are strongly contrarian. Some points of view may be wrong-headed or fly in the fact of reason. But they have a right to be expressed and the speakers have a right to be heard in the same way that those to whom they are speaking have a right not to listen.

The problem is that from the State’s point of view, disagreement and dissent are being treated as inimical to the interests of the State. No longer can dissent be tolerated. It is seen as a weapon of opposition – which it frequently is – but so much so that such opposition is characterized as a war with the State.

One of the justifications for the firm line that has been taken by the State arises from the events of February – March 2022 – the Wellington Protest.

The Wellington Protest

The Wellington Protest and the occupation of the grounds of Parliament House in February-March 2022 represented the culmination of a number of contrarian protests against COVID 19 restrictions that had been taking place over the preceding months. The occupation and its violent end have been well covered in the media and do not need rehearsing here. Many people supporting the protesters drifted on and off the site but once the protest had been dispersed it became a symbol for everything that was bad about mis/disinformation and the expression of contrarian views.

Stuff presented a documentary – Fire and Fury – which represented the protest and those involved in a very unfavourable light. I have already commented on the unbalanced approach taken by the documentary, and that it seems to be an example of agitprop but it demonstrates a lack of tolerance about contrarian speech that seems extraordinary for a news media outlet that should be presenting a more balanced view.

The contrarians would suggest that perhaps aided and assisted by a significant influx of Government money to support mainstream news media and guard against mis/disinformation that Stuff and its opinions have been bought and sold. I could not comment on that for I have no evidence to support such an assertion.

However, from the Stuff perspective, the Wellington Protest and the Fire and Fury documentary has become a weapon with which to beat contrarians. Thus those who were standing for local body positions recently who had attended the Protest were identified without more – no examination of their policies; no opportunity for them to provide an explanation for their actions; no evidence of any sort of balance at all. Yet the article making some of these assertions, together with another which identified those who were and were not successful in local body elections were anything but balanced and afforded the contrarians no opportunity to reply or comment.[4] Perhaps the reason for this is that the authors were wary that to ask for comment meant giving the contrarians a platform.

The Wellington protest added fuel to Ms. Ardern’s approach to freedom of expression. She claimed, without identifying any evidence, that there was foreign influence involved in the misinformation. She said:

As we go through a process of accessing what is it that has allowed the growth of misinformation in this country and how do we address that, we will be at pains to ensure that it never becomes an excuse for the violent acts that have happened.

This provides a backdrop to Ms. Ardern’s speech to the United Nations.

The War on Disagreement

The “war with the State” approach to dissent and to disagreement was epitomized by Ms. Ardern, speaking at the United Nations in September 2022.

At the U.N. General Assembly on Friday, Ms. Ardern announced a new initiative “to help improve research and understanding of how a person’s online experiences are curated by automated processes,” saying the work, done in partnership with companies and non-profits, will be “important in understanding more about mis- and disinformation online – A challenge that we must as leaders address.”

It cannot be co-incidental that there had been a meeting of the Christchurch Call participants in New York shortly before Ms. Ardern’s speech.

In the course of the speech she made reference to the way that contrary speech can inhibit or frustrate progress in the implementation of Government policy.

She asked:

“After all, how do you successfully end a war if people are led to believe the reason for its existence is not only legal but noble? How do you tackle climate change if people do not believe it exists? How do you ensure the human rights of others are upheld, when they are subjected to hateful and dangerous rhetoric and ideology?”

She then moved on the discuss how speech and contrarian speech can be used as a weapon. By characterizing the “weapon-like” qualities of speech she shifts the focus from speech as a means of communicating contentious ideas to speech as a contrarian weapon against established thinking or government objectives.

Of course, this characterization of speech demonizes the speaker. It suggests that rather than a means of resolving difference and reaching consensus – or even recognizing that Government policy may not be the desire of the governed – there is a war between contending ideas. And that implies that at the end of the war there must be a winner. As far as Ms. Ardern is concerned, that winner must be the State.

Such a perspective completely ignores that the fact that governments govern with the consent of the governed. If the majority of the governed do not consent, is it suggested then that they are at war with their government?

She then expanded on the “weapons of war” metaphor, at the same time criticizing those who engage in contrarian speech.

“The weapons may be different but the goals of those who perpetuate them is often the same. To cause chaos and reduce the ability of others to defend themselves. To disband communities. To collapse the collective strength of countries who work together,”

But debate is the answer to contrarian speech. If speech is a weapon that may be used in a disruptive sense, that disruption can be answered by counter speech. At least with speech there is an equality of arms, and Ms. Ardern, as a graduate in communications studies, would be and is well skilled in massaging the message.

But she chose a different path. Without explicitly saying so she suggested that there were methods of countering speech that were other than debate, and clearly the subtext of the remarks that follow is directed towards the suppression of contrarian speech.

“But we have an opportunity here to ensure that these particular weapons of war do not become an established part of warfare. In these times, I am acutely aware of how easy it is to feel disheartened. We are facing many battles on many fronts…But there is cause for optimism. Because for every new weapon we face, there is a new tool to overcome it. For every attempt to push the world into chaos, is a collective conviction to bring us back to order. We have the means; we just need the collective will.”

This is the language of authoritarianism although it is expressed in more mellow terms. Given Ms. Ardern’s communication credentials she is able to make authoritarianism look acceptable. But it is, nevertheless, typical of the mindset of the tyrant.

Ms. Ardern is possessed of a high sense of the righteousness of her cause. She does not debate ideas. She rejects them or refutes the premises of opposition without engaging in debate. She therefore avoids confronting the uncomfortable reality that she may be wrong. And by rejecting and refuting she adopts an air of superiority that views dissent as evil and, because it has become “weaponized” it is too dangerous to allow.

It is perhaps evidence of that sense of righteousness that Ms. Ardern went to the UN and called upon the General Assembly, looking for support for her cause. She called upon the nations present to exercise their collective power to deal with this new weapon of war – contrarian speech.

But deeper than that what Ms. Ardern is talking about is ideas. What she is concerned about, what has been “weaponized” is the way that those ideas have been expressed. Ideas that conform with hers are benign. Ideas that conflict with hers must be stamped out. The days of debate are over.

Her speech focused on the alleged scourge of “mis and disinformation online”.

We must tackle it, she said. She acknowledged some people are concerned that “even the most light touch approaches to disinformation” could come across as being “hostile to the values of free speech”.

She is certainly right there. Her approach is indeed hostile to the values of free speech.

When she moved into the “weapons of war” metaphor she was essentially saying that war is speech. Words wound. Ideas kill.

Politicians and those who support the “official position” and who wring their hands over “misinformation” or “disinformation” are usually just talking about beliefs they don’t like. Mis\disinformation are words that are rendered meaningless by misuse.

Ms. Ardern gave climate-change scepticism as an example of one of those “weapons of war” that can cause “chaos”. “How do you tackle climate change if people do not believe it exists?” she asked.

Those who critique climate-change alarmism, those who call into question the ecolobby’s claims that billions will die and Earth will burn if we don’t drastically cut our carbon emissions, is an entirely legitimate political endeavour, contrarian though it might be. However, in treating it as a species of Flat Earthism, as “disinformation”, the new elites seek to demonise dissenters, to treat people whose views differ to their own as the intellectual equivalent of warmongers.

Activists, whose hype about the end of the world could genuinely be labelled misinformation, are never branded with that shaming word. That’s because misinformation doesn’t really mean misinformation anymore. It means dissent. Deviate from the consensus on anything from climate change to Covid and you run the risk of being labelled an evil disinformant.

Indeed, one of the most striking things about Ms. Ardern’s speech was her claim that if the elites ignore “misinformation”, then “the norms we all value” will be in danger. But for her it is dissent that is the enemy. Ms.Ardern does not want a single voice raised against her.

This is the most common cry of the 21st-century authoritarian – that contrarian speech can have a destabilising and even life-threatening impact, especially if it concerns big crises like climate change or Covid-19.

So “climate deniers” are a threat to the future of the human race and thus may be legitimately silenced. “Lockdown deniers” threaten to encourage the spread of viral infection and thus may be legitimately gagged. The spectre of crisis is cynically used to clamp down on anyone who dissents from the new global consensus.

To see how authoritarian the desire to clamp down on “misinformation” can be, it is worth considering other world leaders who used the platform of the UN to call for tougher controls on speech. Muhammadu Buhari, the ruler of Nigeria, focused on his nation’s “many unsavoury experiences with hate speech and divisive disinformation” and joined the calls for a clampdown on the “scourge of disinformation and misinformation”. Russia’s Foreign Minister, Sergey Lavrov, bemoaned the “disinformation” against his nation. Those supporting Ms. Ardern for standing up to “fake news” are implicitly cheering Buhari and Lavrov, too. They are as one with her when it comes to chasing “misinformation” from the public sphere.

Freedom of expression isn’t only threatened by obvious strongmen – like the rulers of Nigeria or the theocratic leaders of Iran. Ms. Ardern’s UN speech exposed the iron fist of authoritarianism that lurks within the velvet glove of liberal kindness.

Conclusion

In this piece I have mapped a trajectory of gradual erosions of freedom of expression in New Zealand. It is the job of an historian to look at the evidence and interpret it. The evidence in the matter or erosions of freedom of expression in New Zealand starts with the Christchurch Call. The initial target was discrete although the widening of the scope to include extremist speech was modified by the word “violent”.

It was at this time concerns were expressed about “hate speech” although that particular project, signalled by the Government as a matter of concern, appears to be of lesser importance than it was following the events of March 2019 and the Royal Commission Report.

A shift in focus came with the “single source of truth” comments by Ms. Ardern. Although these were outwardly intended to inspire confidence in the truth of the Government messaging, it nevertheless marginalized expressions of contrary opinion and in that respect ramped up the anti-contrarian messaging, consigning it to a “non-truth” category.

The messaging about truth, “non-truth” and the issues of mis and disinformation were picked up by various agencies such as the Disinformation Project and elements of the mainstream news media, reinforcing the Government messaging about the potential damage to Government programmes and policies.

The Wellington Protest fuelled Ms Ardern’s speech at the UN which concludes this discussion and it tells two stories. The first is the chilling of freedom of expression. The second is evidence of the chilling of freedom of expression. International news reports have expressed concern and indeed outrage at Ms. Ardern’s hostile attack on freedom of expression[5]. Has there been such concern expressed here in New Zealand by a news media that is the beneficiary of many millions of Government funding? The rest is silence.

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[1] “Battle Against Online Harm beefs up censor’s power” Mediawatch, 21 March 2021 https://www.rnz.co.nz/

national/programmes/mediawatch/audio/2018788055/battle-against-online-harm-beefs-up-censor-spower

(last accessed 3 July 2022).

[2] https://www.stuff.co.nz/technology/digital-living/116776465/chief-censor-david-shanks-says-an-entirely-new-media-regulator-may-be-needed

[3] Charles Mitchell and Andrew Vance “Around 3000 people are running for council, more than 200 have promoted false information or conspiracies” Stuff 8 October 2022 Around 3000 people are running for council, more than 200 have promoted false information or conspiracies | Stuff.co.nz

[4] Andrea Vance and Charlie Mitchell  Stuff 9 October 2022 https://www.stuff.co.nz/national/politics/local-body-elections/130114188/fewer-than-a-dozen-disinformation-candidates-elected-to-councils

[5] Rita Panahi “’Fake Queen of Empathy’:Ardern’s UN speech described as ‘disturbing, dystopian and dangerous’” Sky News 3 October 2022 https://www.skynews.com.au/opinion/rita-panahi/fake-queen-of-empathy-arderns-un-speech-described-as-disturbing-dystopian-and-dangerous/video/b8a7865217f1325e59884dd9a23b4c7b

The Times view on Jacinda Ardern and Liberty: Unfree Speech  – The Time 3 October 2022 https://www.thetimes.co.uk/article/the-times-view-on-jacinda-ardern-and-liberty-unfree-speech-bqnqzp7mt

“Woke Queen Ardern wages war on free speech” The Australian 3 October 2022 https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fcommentary%2Fwoke-queen-arderns-war-on-free-speech%2Fnews-story%2Fb221012efa2dde6ab6e332f5c85626b9&memtype=anonymous&mode=premium&v21=dynamic-groupa-control-noscore&V21spcbehaviour=append

“New Zealand PM Jacinda Ardern condemned for comparing free speech to ‘weapons of war’ at UN” New York Post 29 September 2022 https://nypost.com/2022/09/29/new-zealand-pm-condemned-for-calling-free-speech-weapons-of-war-at-un/

“New Zealand prime minister condemned for calling to regulate free speech as a ‘weapon of war’ at UN” Alexander Hall, Fox News 28 September 2022 https://www.foxnews.com/media/new-zealand-prime-minister-condemned-calling-regulate-free-speech-weapon-war-un

Unfit for Office

What appears to be a difference of opinion between Simon Wilson and Auckland Mayoral Candidate Wayne Brown is more than that. It demonstrates a fundamental difference in the purpose of Government and Governmental organisations.

Brown is reported as saying “Auckland Transport should be told they are there to service the way we live, not change the way we live.”

Wilson, for his part, sees the issue differently and in doing so outlines his ideas about the function of Government. He says of Brown’s comment:

“That’s utterly wrong. Because of the climate crisis, behavioural change is the most fundamental task we face. And because of Covid, we know it’s possible. Consumers have a role and so do corporates. But governments, central and local, must provide the framework and the leadership.

In my view, a politician who doesn’t understand that is unfit for office.”

Simon Wilson is a regular opinion writer and columnist for the New Zealand Herald. He often espouses points of view which could be described as “left of centre”. He is entitled to do that and has the added advantage of having a platform in the shape of New Zealand’s largest daily newspaper.

But by the same token others have the right to disagree with his point of view and to debate it.

It seems to me that Wilson misunderstands the role of Government. His comments about “framework” and “leadership” suggest that people are to be taken often in directions in which they may not want to go, and to work within a governmentally designed framework as they travel to whatever destination or end the government decrees. That sounds to me like government by diktat.

I see the role of government through a different lens. Government and those who participate in it, whether elected or as bureaucrats, are the servants of the people. They are there to fulfil the will of the electorate.

For that reason, before elections, politicians should clearly state what they intend to do if elected by way of a manifesto. In that way their masters, those who elect and appoint them to their governance role, are able to see if those intentions accord with the views or wishes of those who elect them. Once elected, those occupying governance position should not then, as the present Government does, pursue ideological goals or policy objectives which have not been earlier disclosed to the electorate.

Auckland Transport, the target of Mr Brown’s comment, is an unelected body. But this does not give that organization or its executives, the power to do as they like – and they have certainly been doing that in pursuing an ideology that is not in the interests of allowing people to move efficiently about the City. Auckland Transport, a publicly funded Council controlled body, is the servant of the people. It is not the people’s master. Nor is government in any form.

The philosophy of Government that I favour is best expressed in the 1776 Declaration of Independence. We are endowed with certain inalienable rights and among these are life, liberty and the pursuit of happiness. To secure these rights

“Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Clearly from these statements Governments are the servants of the people, and are there to ensure they can exercise their rights to life, liberty and the pursuit of happiness.

This would seem to me to be an admirable basis for Government, so what is it that attracts Mr Wilson to the statist collective Government that will “lead” (translation “order us”) us in a direction within a pre-determined framework.

Sadly the answer would seem to lie in the uniquely “Kiwi” attitude which briefly stated looks to the Government for every solution and is summed up in the statement “The Government must do something”.

This clearly is a complete abdication of responsibility for one’s own life; a surrendering of one’s individuality; a denial of the ability of the individual or group of individuals to develop their own solutions to problems. Sadly it is an attitude that has historical roots and where successive administrations, especially the First Labour Government, took control and instituted nationalized and subsidized industries and projects, thus diluting individual self-help solutions.

My position is that as far as possible Government should serve the people and not the other way round. For people to serve the Government is a step down the road to repression and the end of individualism. For the Government to dictate how individuals should live their lives is no more nor less than totalitarianism. Thus any politician who supports Mr. Wilson’s model does not understand the role of Government and is unfit for office.

Talking About “Misinformation”

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

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

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

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

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

Plus ca change?

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

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

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

Perhaps we should start by breaking the word down.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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[1] Collins English Dictionary

[2] Cambridge English Dictionary

[3] Cambridge English Dictionary

The Consent of the Governed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere  

The ceremony of innocence is drowned;

The best lack all conviction, while the worst  

Are full of passionate intensity.

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

Social Cohesion or Social Conformity?

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

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

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

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

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

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

The definition depends on

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

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

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

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

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

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

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

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

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

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

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

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

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

Technology and Social Cohesion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Social Cohesion and Conformity

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

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

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

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

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

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

Maintaining Social Cohesion

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

Jacinda’s Labyrinth – Managing the COVID pandemic by law

Explanatory Note:

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

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

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

Introduction

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

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

Research Resources

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

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

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

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

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

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

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

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

Outlining the Discussion

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

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

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

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

The COVID-19 Public Health Response Act 2020

Beginnings and Endings

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

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

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

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

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

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

The Purpose of the Act

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

The purpose of the legislation is:

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

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

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

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

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

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

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

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

Making Orders Under CPHRA

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

Section 8 Prerequisites

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

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

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

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

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

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

Section 9 Requirements

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

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

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

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

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

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

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

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

Section 10 Requirements

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

There are four major requirements.

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

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

Section 11 – Orders that May be Made Under the Act

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

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

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

These purposes are:

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

or to take specified actions,

or to comply with specified measures,

so as to contribute to either or both of the following

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

Examples of the first purpose are:

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

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

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

• The second stated purpose relates to an MIQF or other place of isolation or quarantine. The order

may require specified actions to be taken

or require compliance with any specified measures

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

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

The non-exclusive list is:

•  giving directions that relate to the movement of people to, from, and within the MIQF, other place of isolation or quarantine, or place of self-isolation or quarantine:
•  imposing restrictions and conditions that relate to the movement of people to, from, and within the MIQF, other place of isolation or quarantine, or place of self-isolation or quarantine:
•  permitting people to leave their rooms in the MIQF, other place of isolation or quarantine, or place of self-isolation or quarantine in accordance with any requirements or conditions specified in the order:

• Orders may be made relating to places, premises, craft, vehicles or other things.

The orders may require specified actions to be taken.

They may require compliance with specified measures

They may impose specified prohibitions.

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

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

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

•  requiring any places, premises, craft, vehicles, or other things to be closed or only open if specified measures are complied with:
•  prohibiting any craft, vehicles, or other things from entering any port or place, or permitting the entry of any craft, vehicles, or other things into any port or place only if specified measures are complied with:
•  prohibiting gatherings of any specified kind in any specified places or premises, or in any specified circumstances:
•  requiring any places, premises, craft, vehicles, or other things to be isolated, quarantined, or disinfected in any specified way or specified circumstances:
•  requiring the testing of any places, premises, craft, vehicles, or other things in any specified way or specified circumstances:

• Orders may be made relating to laboratories that undertake COVID-19 testing. These orders may:
•  set quality control measures and minimum standards:
• require COVID-19 test results to be reported to the Director-General’s public health national testing repository:
•  manage the supply of testing consumables (such as reagents and swabs) used by the laboratories:
• provide differently for different classes of testing laboratories (for example, different provisions for laboratories depending on whether they are funded publicly or privately)

• Orders may be made relating to the owner or person in charge of a specified laboratory that undertakes COVID-19 testing. These may require the owner or the person in charge to:
•  deliver or use, in accordance with directions given under the order, specified quantities of COVID-19 testing consumables that the Minister considers necessary for the purposes of the public health response to COVID-19:
•  undertake COVID-19 testing solely for the purposes of the public health response to COVID-19 while subject to the order, whether or not the laboratory is contracted by the Crown for that purpose

• Orders may be made requiring persons to permit individuals to enter a place or receive a service irrespective of their vaccination status or the presentation of a vaccination certificate.

• Orders may be made specifying the evidence that may be required to be produced to demonstrate that a specific measure has received compliance. The example is given of the requirement for the presentation of a COVID-19 vaccination certificate. Such order may provide for  any prohibitions or duties that apply in respect of the use or production of that evidence

• Orders may be made specifying the required doses for each COVID-19 vaccine or combination of COVID-19 vaccines.

• As may be expected, orders may be made dealing with COVID-19 vaccination certificates. The orders
•  May specify who is eligible to be issued with a COVID-19 vaccination certificate:
•  May specify how an application for a COVID-19 vaccination certificate must be made, and the information required to accompany that application:
•  May provide for the issue, renewal, and extension of COVID-19 vaccination certificates by the Director-General or by the use of automated electronic systems (which certificates are to be treated as if they were issued, renewed, or extended by the Director-General):
•  May provide for the form and content of COVID-19 vaccination certificates to be determined by the Director-General:
•  May specify the period for which COVID-19 vaccination certificates are valid, or the conditions under which COVID-19 vaccination certificates may expire.

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

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

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

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

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

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

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

Summary of the Provisions of Section 11

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

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

• Examples of such orders may be:

Restricting or regulating entry to premises

Refraining from associating with specified persons

Distancing requirements

Travel restrictions to certain areas

Restrictions of certain specified activities

Isolation and quarantine requirements

Restrictions or prohibitions on gatherings

Requirements to report for medical examination or testing

Provision of information for contact tracing

Satisfying entry criteria before entering NZ including registration at an MIQF

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

Requiring closing or opening subject to conditions

Prohibiting entry or craft of vehicles into ports or places

Prohibiting gatherings at certain specified premises

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

Requiring testing of places, craft or vehicles

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

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

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

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

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

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

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

• A COVID-19 Order may specify the evidence that may be required to demonstrate compliance with a requirement, restriction, direction or condition.

• A COVID-19 Order may apply to certain people or classes of people, locations or areas.

These details are:

•  in relation to persons, generally to all persons in New Zealand or to any person or specified class of persons in New Zealand:
•  in relation to places, premises, craft, vehicles, or other things, to any class or to all of them:
•  in relation to anything else,—
•  generally throughout New Zealand
•  in any area, however described

• A COVID-19 Order may set out the circumstances where an Order may not apply even if the provision is beneficial.

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

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

The things that may be done by written notice are:

•  specify, determine, designate, define, or approve any matters, impose conditions, or give directions, required for the operation of a provision of this Act or a COVID-19 order, including matters that affect or determine the application, operation, or scope of a provision:
•  determine that any provision of this Act or a COVID-19 order (even if the provision is beneficial) does not apply in any specified circumstances, in any specified way, or to any specified persons, places, premises, craft, vehicles, or other things, or to any specified class of persons, places, premises, craft, vehicles, or other things:

• A COVID-19 Order may actually permit something to be done even although it could be prohibited under section 11 or section 11AB. However the Order must be subject to special conditions[20].

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

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

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

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

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

Limitations on COVID-19 Orders

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

They may not apply to a specified individual.

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

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

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

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

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

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

Section 13

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

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

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

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

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

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

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

Formalities for COVID-19 Orders

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

I shall briefly set out these requirements section by section.

Section 14 – Publication Requirements

There are three mandatory requirements for COVID-10 Orders.

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

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

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

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

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

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

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

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

Section 15 – Amendment or Extension of Orders

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

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

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

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

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

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

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

Section 16 – Approval of the House of Representatives

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

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

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

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

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

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

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

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

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

Observations

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

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

Summarising the Process for Making an Order

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

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

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

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

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

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

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

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

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

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

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

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

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

Does an Order Override a Specific Statute?

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

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

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

Section 13 of the Immigration Act states as follows:

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

This section establishes

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

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

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

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

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

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

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

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

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

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

The Order applies to the whole of New Zealand.

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

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

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

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

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

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

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

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

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

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

The evidence required is confirmation of—

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

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

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

The person must—

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

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

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

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

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

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

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

The Application of Section 13(1) CPHRA

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

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

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

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

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

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

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

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

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

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

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

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

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

The Bill of Rights Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[5] COVID-19 Public Health Response Act 2020

COVID-19 Public Health Response Amendment Act 2020

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

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

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

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

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

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

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

Immigration (COVID-19 Response) Amendment Act 2020

Imprest Supply (Third for 2019/20) Act 2020

Overseas Investment (Urgent Measures) Amendment Act 2020

Remuneration Authority (COVID-19 Measures) Amendment Act 2020

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

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

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

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

[9] See section 10 Legislation Act 2019.

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

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

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

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

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

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

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

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

[18] Section 69 Legislation Act 2019

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

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

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

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

[23] An urgency exception

[24] The removal or reduction exception

[25] See sections 9 and 10 for these requirements

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

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

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

[29] The emphasis is mine.

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

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

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

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

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

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

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

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.

De-Platforming Dissent

History shows us that lawyers have often been at the forefront of dissent. And on some occasions they have been punished or de-platformed for their dissent This may not seem unusual. The law is perceived as a conservative profession.

Three historical examples came to mind. There are plenty of others.

Marcus Tullius Cicero (106 – 43 BC), the Roman lawyer and Senator, spoke out against Gaius Julius Caesar and although he did not join the assassins was no great supporter of those who came after. His Phillipics aimed mainly at Marcus Antonius earned him the hatred of its subject and his wife Fulvia. When, as the Second Triumvirate,  Antonius, Gaius Octavius and Marcus Aemilius Lepidus sought to eliminate opposition by adopting the proscription – the tool of the former dictator Lucius Cornelius Sulla – which put a price on the heads (literally) of opponents, Cicero was one of those named. He was executed by soldiers operating on behalf of the Triumvirs in 43 BC after having been intercepted during an attempted flight from the Italian peninsula. His severed hands and head were then, as a final revenge of Marcus Antonius, displayed on the Rostra. A very final form of de-platforming ending up with exposure on a platform.

John Stubbs (1544 – 1589) was educated at Trinity College, Cambridge and read law at Lincolns Inn. He was a committed Puritan and was opposed to the negotiations for a marriage between Queen Elizabeth I and the Duke of Alencon who was a Catholic. In 1579 he expressed his opinions in a pamphlet entitled “The Discovery of a Gaping Gulf whereunto England is like to be swallowed by another French Marriage, if the Lord forbid not the banns, by letting her Majesty see the sin and punishment thereo.”

Stubbs graphically characterised the proposed wedding as a “contrary coupling,” “an immoral union, an uneven yoking of the clean ox to the unclean ass, a thing forbidden in the law” as laid down by St. Paul, a “more foul and more gross” union that would draw the wrath of God on England and leave the English “pressed down with the heavy loins of a worse people and beaten as with scorpions by a more vile nation.”

Elizabeth and her Court were outraged. The publication was denounced by a specific proclamation of 27 September 1579.  The proclamation claimed that the pamphlet stirred up rebellion “on the part of the Queen’s subjects, to fear for their own utter ruin and change of government”.

Circulation of the pamphlet was prohibited and copies were burned at the headquarters of the printing trade – Stationers Hall. Stubbs and the publisher were tried and found guilty of seditious writing.

Stubbs’ de-platforming was especially horrific. He and the publisher were sentenced to have their right hands cut off by means of a cleaver driven through the wrist by a mallet. Initially Queen Elizabeth had favoured the death penalty but was persuaded to opt for the lesser sentence. The sentence was carried out and Stubbs’ right hand was cut off on 3 November 1579. At the time he protested his loyalty to the Crown, and immediately before the public dismemberment delivered a shocking pun: “Pray for me now my calamity is at hand.” His right hand having been cut off, he removed his hat with his left hand and cried “God Save the Queen!” before fainting. His fellow conspirator, the publisher William Page, lifted up his bleeding hand and said: “I left there a true Englishman’s hand.”

Stubbs was subsequently imprisoned for eighteen months. On being released in 1581 he continued to write, publishing, among other pamphlets, a reply to Cardinal Allen’s “Defence of the English Catholics”. Despite his punishment, he remained a loyal subject of Queen Elizabeth and later served in the House of Commons as MP for Great Yarmouth in the English Parliament of 1589

William Prynne (1600 – 1669) was a lawyer, author and polemicist and a Puritan opponent of the Anglican establishment He was a graduate of Oriel College, Oxford and was called to the Bar at Lincolns Inn in 1628.

Prynne did not set out to be popular. Many of his views, acerbically expressed, were very unpopular. He opposed religious feast days and their associated revelries. He thought men should not wear their hair long and opposed the custom of drinking to one’s health.  In 1632 had printed his Historiomastix in which he argued that stage plays were incentives to immorality and were prohibited by scripture. Shortly after the book was released, Charles I’s Queen Henrietta Maria took part in a play at Court. A passage in Historiomastix critical of the character of female actresses was interpreted as an attack on the Queen. Passages attacking the audiences of plays and the judges who failed to suppress them were taken as an attack on the King.

Prynne was taken before Star Chamber. After a year’s imprisonment in the Tower of London, he was sentenced on 17 February 1634 to life imprisonment, a fine of £5,000, expulsion from Lincoln’s Inn, deprival of his Oxford University degree, and amputation of both his ears in the pillory where he was held on 7–10 May 1634.

This did not silence Prynne. From the Tower he continued to write polemics against Archbishop Laud, whom he saw as his main persecutor, the Attorney-General William Noy who had prosecuted him before Star Chamber as well as other attacks on leading Anglican clergymen.

Once again he was brought before Star Chamber and on 14 June 1637 Prynne was sentenced once more to a fine of £5,000, to imprisonment for life, and to lose the rest of his ears. At the proposal of Chief-justice John Finch he was also to be branded on the cheeks with the letters S. L., signifying ‘seditious libeller’. Prynne was pilloried on 30 June. Prynne was handled brutally by the executioner. He made, as he returned to his prison, a couple of Latin verses explaining the ‘S. L.’ with which he was branded to mean ‘stigmata laudis’ (“sign of praise”, or “sign of Laud”). His following imprisonment harsh. He was allowed no pens nor ink, had few books and was removed to remote prisons in Wales and Jersey.

Prynne was released by the Long Parliament in 1640. His sentences were declared illegal. His ears could not be restored to him although his degree was along with his membership of Lincolns Inn.

It was not long before Prynne found himself in trouble with the supporters of Parliament and in 1647 he wrote a number of pamphlets against the army, and championed the cause of the eleven presbyterian leaders whom the army impeached.

n November 1648 Prynne was elected Member of Parliament.  As soon as he took his seat, he showed his opposition to the army. He urged the Commons to declare them rebels, and argued that concessions made by Charles in the recent treaty were a satisfactory basis for a peace.

Two days later Pride’s Purge took place. Prynne was arrested by Colonel Thomas Pride and Sir Hardress Waller, and kept prisoner first at an eating-house (called Hell), and then at the Swan and King’s Head inns in the Strand.

Released from custody some time in January 1649, Prynne retired to Swainswick, and began a paper war against the new government. He became a thorn in Cromwell’s side.

He wrote three pamphlets against the engagement to be faithful to the Commonwealth, and proved that neither in conscience, law, nor prudence was he bound to pay the taxes which it imposed.

The government retaliated by imprisoning him for nearly three years without a trial. On 30 June 1650 he was arrested and confined, and was finally offered his liberty on giving security to the amount of £1,000 that he would henceforward do nothing against the government; but, refusing to make any promise, he was released unconditionally on 18 February 1653.

Prynne continued his pamphleteering and supported the restoration of Charles II. He was rewarded with public office and once again elected to Parliamentand ended up as Keeper of Records in the Tower of London before his death in 1669.

Prynne was a gadfly who angered many who suffered at the tip of his pen. He is best known for his horrifying treatment in the 1630’s for publishing and expressing what were at the time unpopular views.

These three examples came to mind as I reflected on what appears to be a growing crackdown on dissent around the globe. De-platforming and cancelling seem to be common. Both are forms of silencing dissent.

Lawyers, as I said at the outset, have often headed dissenting movements. It was the dedication of lawyers who brought proceedings against the Rugby Union that halted an All Black’s tour of South Africa in 1985 – not a popular move in the temper of those times. It is commemorated in an article by Sam Bookman of 2018 and may be found on the New Zealand Law Society website here. And whilst I am on South Africa, Nelson Mandela was a lawyer and practiced in Johnannesburg before turning to anti-apartheid politics for which he was seriously de-platformed and like Stubbs was charged with sedition.

I must say I find it interesting that the tide of history has not turned and that attempts at de-platforming lawyers expressing dissenting views are still occurring

The State in the Time of Covid-19

The first part of this piece was written last year. I was hesitant to
post it and then it seemed that events had overtaken it. In the considerable
amount of time has elapsed New Zealand fell into a state of complacency as far
as the effects of Covid-19 were concerned.  There was even a “travel
bubble” – quarantineless travel – to and from certain parts of Australia.
Then the Delta variant arrived. And that changed everything. I commence this
post with my observations “then” – in May of 2020 and then review the
situation as at “now” – being October 2021. Whether or not, in the
light of recent events, the State is likely ever to get out of the way seems
very unlikely.

 

May 2020

 

Simon Wilson ended his pandemic diary once the lockdown levels and
restrictions had been reduced. He
concluded his diary with some 15 observations which he described as things we
know now that we hardly ever dreamed of before.

Some of his observations are quite reasonable. One of them, however, is the
sort of thing that I would expect from Mr. Wilson’s collectivist and Statist
world-view. At item number 8 he claims “The State Should Not Get Out of the
Way”. To expand on the proposition he suggests “The state is the principal
organising tool for society. The job is not to eviscerate it, but to make it
work better for us.”

That the State should work better for us is something with which most would
agree. It is a pretty clunky and unresponsive beast at the best of times and
the solutions offered are blunt rather than nuanced and often involve, as Mr
Oliver Christiansen found to his dismay, a box ticking approach to what
should be a careful, sympathetic and balanced consideration of factors in the
exercise of a discretion in decision-making.

Certainly the State claimed and exercised extraordinary powers following the
onset of the Covid-19 crisis. The State had to, as Mark Zuckerberg advocated in
another context, move fast and break things. And that is what they did.

One of the things that was “broken” or at least turned on its head was a
basic principle of liberty that we enjoy in a free society. I am not talking
about manifestations of interference with liberties like that of freedom of
movement or the right to refuse medical treatment. Rather I am thinking about
the basic principle that underpins law in a free society which is that everything
is permitted that is not specifically prohibited. This was completely reversed
especially in Alert Levels 3 and 4 to the point where everything was forbidden
unless it was permitted.

This led to another difficulty. Exactly what was permitted? Despite the
existence of a Covid 19 website with some very useful resources, without some
inkling of how the law worked in an emergency situation, the primary materials
were difficult for an ordinary person to work through.

And it is a fundamental aspect of the Rule of Law that the law must be
accessible, intelligible, clear and predictable. That is because – and this is
a second feature of the Rule of Law – the exercise of all powers by the State
must be authorized properly by law.

The problem is that the law lacked precision and its interpretation was
often faulty, summarized in newspapers, which merely reprinted press releases,
or the promulgation or proclamation of the rules – or an interpretation of them
–  came by way of a press conference. Thus, we had vagueness in the
concepts of “staying local”. And how far could one go on a walk for the
purposes of exercise. And if one went too far – and how far was too far – would
one be subject to intervention from enforcement authorities and an even greater
restriction on an already severely restricted liberty.

One interesting aspect of the way in which the powers of the State could be
misinterpreted was in relation to those over the age of 70. It is acknowledged
that those in that cohort were at greater risk of severe consequences if
infected with Covid 19. But they were told to stay at home. By what authority?
There was none. Yet thousands of over-70’s were deprived of work, family
contact and the freedom of movement by this diktat which, as it turns out, was
advisory only and did not have the force of law.

These concerns are not mine alone. They are shared by a number of
individuals and are eloquently articulated by former Attorney-General Mr Chris
Finlayson QC in an op-ed piece entitled Coronavirus:
Lockdown was vague and threatening says former Attorney General.

So what does this have to do with Mr Wilson’s contention that the “State
Should Not Get Out of the Way.” Given the way in which the State has acted, and
the significant interference with civil liberties – for example the freedom
from arbitrary search – that is contained in validly enacted legislation (which
itself was subject to roll-backs and last minute changes) I would contest Mr
Wilson’s reliance upon the State.

I assume that he is referring to the way in which the State has intervened
to address problems within the economy. So it should if only because the damage
to the economy has been solely as a result of State action in the first place.
It is right and proper that assistance and compensation should be provided to
those who have been affected by this extraordinary use of State power. And then
the State should get out of the way and let the people, who have suffered at
its hands, get on with their lives.

It would be fair to ask “what was the Government meant to do” and the vast
majority of the citizenry approved the steps that were taken. But by the same token
in the lead-up to the lockdown there were some very dire predictions of what
might happen if determined steps were not taken. A climate of fear of Covid 19
developed that allowed the public to willingly and complacently accept
significant restrictions on the liberty of the individual.

It may well be when the dust settles that the reality will dawn that
governments in many countries were themselves panicked by the potential
reputational damage to them of health systems being overwhelmed. To avoid that reputational
damage they were prepared to take extreme steps that have had significant
deleterious economic effects as well as trashing the lives of citizens and
their expectations and in doing so seriously infringed civil liberties without
a careful and considered application of clear, intelligible law. This is the
State that Mr. Wilson considers is society’s principal organizing tool.

There can be no doubt that swift and determined action was required to
address the problems posed by Covid 19, but there seems to be a lack of
recognition that the State, or the Government if you prefer, is not our Master.
The State is the servant of the people. Rather than require, demand, order or
dictate – acting as if it were the Master and we were the servants – it should
recognize that in fact the people are the Masters and it is Government that is
the servant of the people.

It should always be remembered that there will be a tension between
authority on the one hand – represented in this case by the State – and liberty
on the other. John Stuart Mill was of the view that the potential tyranny of
government – an ever-present threat – could only be controlled by the
protection of the liberty of the citizenry. This was based upon the
Enlightenment view that liberty was a right – what today we would call a human
right.

This liberty is protected by the establishment of constitutional safeguards.
These safeguards are made with the consent of the governed and provides
limitation upon the exercise of power by the governing body.

The purpose of the power of the State, according to Mill, can only
rightfully be exercised over a member of the community against his will to
prevent harm to others. That the exercise of power may be for his or her own
good is not sufficient. The individual is sovereign determiner of him or her
self, body and mind.

Mr Wilson puts forward a pithy and somewhat reasonless argument for the
State or Big Government which ignores aspects of what the State is meant to do
within Mill’s balance between the purpose of the power of the State and the
rights of the individual.

We have seen what Big Government can do. It is the best course now that
Government or the State with its collectivist and regimented methods step back
and allow individuals to make their way.

October 2021

We are seeing now, as at October 2021, the real power of Big Government. It
seems that consensus has gone out the window. The “Three Waters
Initiative” involving the amalgamation and centralisation of local body
water resources was originally to have been a consensus “buy in”
project by local bodies. Today (27 October) it was announced that it would be
compulsory. 

The approach to vaccination and the restoration of civil liberties provides
an interesting yet concerning approach to the exercise of power. That as many
people as possible should be vaccinated against Covid 19 is plain. I have no
difficulty with that.  But the reasoning for this is as yet not entirely
clear. One would expect that the policy would be driven by altruism, especially
from a Left-leaning Government, But the concern seems to be more about the
ability of the Government to continue to deliver a health system. Some of the
messages tell us that vaccination is important for our own safety and for that
of our families and those around us. I have no difficulty with that. 

It is the follow-up messaging that is of concern. Get vaccinated and we will
return some of your freedoms to you. Given that the State took those freedoms
away in one sweeping act in the first place that is a truly magnanimous
gesture. But the messaging has been going through a number of adaptations – all
of which indicate a growing arrogation of power by the State and a benevolent
attitude towards the exercise of civil liberties. They are no longer rights.
They are privileges.

The most concerning message delivered recently surrounds vaccination, the
use of vaccination passports (or some other form of proof) and the
differentiated (some might call it discriminatory) treatment of those who for whatever
reason are unvaccinated. We have been told that businesses may have an
opportunity to determine whether or not their staff should be vaccinated. And
if that is the case those availing themselves of the benefits of the business
must be vaccinated as well. And those who are unvaccinated will be unable to
access the benefits of the business.

This approach to what in the past were largely looked upon as human rights
now appear to be conditional privileges. If you have a vaccination then you
will be able to enjoy a range of activities that you previously could enjoy as
a a matter of course. And we, as the State will ALLOW you to do that. And if
you are unvaccinated you will be able to purchase food, avail yourself of
health and other government services but all the other rights that you formerly
enjoyed will be denied to you, not on the basis of your race or religion but on
your status as a vaccinated or unvaccinated person.

It reminds me of the Dr Seuss story of the Sneetches, yellow bird-like
creatures , some of whom have a green star on their bellies. At the beginning
of the story, Sneetches with stars discriminate against and shun those without.
Is this sounding familiar? There are other examples from the
“real-life” world that are too awful to record. But like it or not a
two-tier society is being brought into effect by a social democrat government.
Who would have thought it.

The second exercise of power by the State is the “granting” of
added liberties by means of the traffic light system. This proposal is designed
to obviate the need for lockdowns, allow businesses to operate (saving the Government
large sums of money in business support programmes that have developed over the
lockdowns) and allow citizens some movement as far as their liberties and
activities are concerned. Once again, an exercise in magnanimity. The red
setting is the most restrictive. The orange setting allows a little more
liberty. The green setting is as close as we can expect to get to “the way
we were.”

We have been told by our benevolent government that the traffic light system
will come into effect when DHBs have achieved a certain vaccination target.
What we haven’t been told is how long this form of restrictive activity –
because even the green setting contains restrictions – will last. My sense is
that the traffic light settings will be with us indefinitely. It is very
unlikely that a Government as inured to control as the present one is going to
take its hands of the levers of power and allow the full and unrestricted
exercise of civil liberties. 

Of course all the above may be interpreted as an example of Simon Wilson’s covid
shouty blowhardness – ironic that criticism of people exercising their
freedom of expression should be so denigrated by a journalist of all people –
but he is entitled to his opinion as the covid shouty blowhards are to theirs.
But there are a couple of things that need to be remembered.

The first is that those who are elected to Parliament may be our
representatives in the House but they are also, as I have already noted, our servants – something that
seems to have been forgotten over the last 18 months. Edmund
Burke’s description of the role of the MP articulated in 1774 was developed
in a context vastly different from that of today where we have a (largely)
educated electorate and a much more sophisticated communications system – and
indeed society – from that of Eighteenth Century England. It would seem,
however, that his view still haunts the corridors of power.

The second point is that in the absence of an ability to communicate meaningfully
with our representatives and seek explanations from them we rely on the Fourth
Estate to attend to that as our proxies. And associated with that is the duty
on the Fourth Estate to hold our representatives to account and seek out full
and transparent explanations of their actions and policies.

So if demanding a slightly better performance from the Fourth Estate is
shouty blowhardness perhaps Mr Wilson at the moment seems, rather than holding
Government to account and asking the hard questions, to be no more than a
cheer-leader for the State. Ronald Regan expressed a different view when he said “Government is not the solution to our problem; Government is the problem”.

I will conclude by noting that some of the concerns that I have expressed in
this post have been very coherently articulated by Karl du Fresne is his piece “The
Cabal that controls the national conversation”. Du Fresne also wrote a
piece which was published in Spectator Australia and is also available in the
Otago Daily Times entitled “NZ
is being transformed, but not in a good way”. He eloquently expresses a
position in his conclusion which sums the problem up so much better than I can.

“The danger is that most New Zealanders, being
essentially passive, easy-going and good-natured, will ignore the tumult and
just try to get on with lives – until they wake up one morning and realise that
the open, tolerant and fair-minded society they grew up in has irrevocably
changed.”