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.

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Fire and Fury and….Fear

This is a commentary on a documentary that was released by Stuff and is part of a continuing examination of and commentary on the issue of mis/disinformation. The documentary – Fire and Fury – had the potential to be an informative and useful addition the the material swirling around current concerns about mis/disinformation. Sadly it did not fulfil that potential but rather was caught up in its own pre-determined view of the issue and those participating in it.

As I have earlier observed, I do not generally support the position advocated by those who express contrarian views. At the same time I would not wish their voices to be silenced. An exchange of ideas, although such a hope may be somewhat futile, is far preferable to the alternative which would be a form of censorship.

What follows is my view on the documentary and my reasons for suggesting that it does not fulfil its potential. It is entirely up to the reader whether or not these views find favour.

________________________________________________________________________________________________________

The Stuff documentary “Fire and Fury” is an interesting example of advocacy journalism. One commentator has described it as “agitprop”[1].

Because it originates from a mainstream media source there are certain constraints on its approach. One such constraint is the need for journalistic balance. Yet the introduction to the documentary and its accompanying material on the Stuff website suggests that balance and a portrayal of contesting views, leaving the reader or viewer to come to a conclusion, is not present.

The explanation of the project goes under the heading of opinion. The bias of the piece is clear from the title “Pushing Back Against the Monsters” although one would hope for some journalistic integrity in the piece. This is what it has to say:

You’ll recall the narrative driven (and accepted by many) during the Wellington protest that it was peaceful and had one objective: to end the mandates.

Scratching not too far beneath the surface, though, it was apparent there was an entirely different — and dangerous — agenda.

At Stuff Circuit our role is to investigate matters that are in the public interest, and two things happened around the time of the occupation that got our attention.

First, we saw talk in social media about making the country “ungovernable”. It sounded like a direct threat to democracy. What did it mean? Who were the people saying it and what was their intent?

Second, we started to see extreme violent language, death threats, and the normalising of language not previously used in everyday New Zealand: people talking very publicly about killing authority figures because they didn’t agree with their policies.

We wanted to understand where that had come from and how mainstream it was going; why your auntie or neighbour was putting this stuff on their Facebook page, oblivious and unquestioning as to its origins.

So far, so good. It is clear that this an investigative effort notwithstanding that the position of the authors started to become clear in the second paragraph (not to mention the title) when the suggestion of a “dangerous agenda” is made.

The focus of the documentary becomes clear and this, as described, is perfectly legitimate and clearly in the public interest.

Our focus in Fire and Fury is not the protest itself, but rather the key figures behind it. Who are they, where had they come from, what did they believe? Why were they so keen on the protest, what did they gain from it, and crucially, what do they want to happen next? The documentary explores how they had not come haphazardly to this moment: this seemingly disparate group of key figures is strategically interconnected, stronger together.

However, in the next paragraphs the focus shifts and the conclusions and directions of the documentary become clear. With the perjorative language that is used, it is unlikely that this will be an unbiassed account

Our decision to investigate led to months of being mired in online chat rooms and watching their mass-produced content: the most violent misogyny, racism, religious bigotry, transphobia, homophobia, online stalking and harassment.

And imbued throughout it all, conspiracy theories ranging from the QAnon-driven sinister cabal of paedophiles controlling the world, to the New World Order and the Great Reset Theory. That the pandemic is a guise for world depopulation and the establishment of a tyrannical global government. That the New Zealand government is engaged in democide: the destruction of its own people.

On and on it went. All of it sitting directly alongside and intertwined with disinformation about Covid, vaccines, and the pandemic response, combining to form a vast, dangerous, swirling, nonsensical, paranoid soup of toxicity.

Then there was the question of whether this material should be published. Was it going to give the contrarians (for that is what they are) yet another platform? That issue was dealt with in this way:

Our decision to investigate led to months of being mired in online chat rooms and watching their mass-produced content: the most violent misogyny, racism, religious bigotry, transphobia, homophobia, online stalking and harassment.

And imbued throughout it all, conspiracy theories ranging from the QAnon-driven sinister cabal of paedophiles controlling the world, to the New World Order and the Great Reset Theory. That the pandemic is a guise for world depopulation and the establishment of a tyrannical global government. That the New Zealand government is engaged in democide: the destruction of its own people.

On and on it went. All of it sitting directly alongside and intertwined with disinformation about Covid, vaccines, and the pandemic response, combining to form a vast, dangerous, swirling, nonsensical, paranoid soup of toxicity.

Then there was the question of whether this material should be published. Was it going to give the contrarians (for that is what they are) yet another platform? That issue was dealt with in this way:

But having decided to investigate, the question remained whether we should report what we were seeing. Why risk amplifying inflammatory and harmful material? Why risk making these people more influential than they would otherwise be? (Side note: it’s creepy watching some of them react when they have been in the news. They love it. They get off on it. It makes them feel important. Did we want to facilitate that?)

There were other reasons not to report, not least of which was the personal harassment which would inevitably come our way — as it does to anyone who works in this field — and has been directed at us (including death threats) for previous work. Massey University research of Stuff staff shows two thirds of our colleagues report experiencing actual violence or threats of violence related to their work — a figure far higher than that reported by journalists globally. (You’ll see in Fire and Fury how people have been provoked to hate journalists. There are real world consequences for that.)

The commentary continues with a consideration of not reporting on the findings of the investigation:

And there was one final question: What was the risk of not reporting?

The more we looked at the volume and scope of their material the more it became clear that not covering these people would not make them go away.

The lesson of history suggests that if you let far-right groups have the streets to themselves, they don’t just go home because there’s no one to fight. They’ll find someone to fight, someone to beat up. Any uncontested space, they’ll take over,” is how one journalist summed it up for Data & Society’s advice on reporting on extremists, antagonists, and manipulators.

One of the extraordinary comments in the immediately preceding passage refers to the “lesson of history”. Yet, as I shall demonstrate, a consideration of some of the historical material would suggest that some of the attitudes and approaches by the contrarians was not unique.

This piece is a review of some of the aspects of the Fire and Fury documentary. It is by no means a full review nor is it a critique. Some of the material in the documentary is important and vital – material that citizens should know so that they can be properly informed. But other aspects of the documentary display an absence of balance and almost a paternalistic and patronizing approach to the ability of citizens to make up their own minds.

I shall consider the way in which some of the material is presented, some of the production values underlying the documentary, an overall impression of the documentary and then the way in which history has a best been overlooked or at worst ignored in locating the views of contrarians. I shall discuss the very obvious bias that was displayed towards the end of the documentary and close my discussion with some observations of the impact of alternative (as opposed to mainstream) media on our expectations of information. The conclusion that I reach on the documentary may be surprising and indeed counter-intuitive – I shall leave that to the reader.

The points of view expressed in the production were of two types. The contrarian position was taken from social media posts and other internet-based sources. Significantly there were no interviews with any of the contrarian figures such as Claire Deeks and Chantelle Baker and certainly no discussions with Kelvyn Alps or Damien de Ment. In some respects this is understandable. Given the attitude of the contrarians to the media it is unlikely that they should want to engage. But at the same time those who discussed and critiqued the contrarian approach such as Khylee Quince, Kate Hannah, Ed Coper and others were interviewed and expressed their views in a calm and rational manner.

The way the opposing views were portrayed was interesting. The clips that were taken of the contrarian position were shrill, at times using the language of hyperbole and at other times were emotional and extreme. By contrast those who were interviewed were calm and rational although there were times when subjective views began to creep in.

Another issue arises in the way in which the contrarian position was portrayed. Rather than taking clips from social media platforms and portraying the points of view within that context, often the contrarian position was over-dramatised by superimposing the speaker on the backdrop of a large building, as if they were expressing their views not on a social media platform, but on a large sized electronic advertising billboard. The context became one of a city street scene with the contrarian view echoing through the canyon on buildings as if this was the means by which their views were communicated.

This portrayal misrepresented the medium of communication employed. Certainly it had dramatic effect but it was not a truthful nor realistic portrayal of how the message was communicated. In my view this was carrying creative license too far and again raised questions about the level of balance in the documentary.

The highlight of the documentary was the protest in the grounds of Parliament in March 2022. For some this must have been a disturbing experience to see, the ending was never going to be peaceful, and the violence of the ending cannot in any way be condoned. But once again the documentary used production techniques to lend a highly dramatic backdrop to the event – a backdrop that was not present at the time. Throughout the segment on the Parliamentary protest dark, sonorous, doom-laden music provides a soundtrack, no doubt to heighten the drama of the event. But this was not a drama. Although we are well used to background music in malls and other places, life does not have a musical soundtrack, and in my view to superimpose one – especially one as oppressive and dark as that used in the documentary – is taking a considerable production liberty.

I suppose that the makers of the documentary wanted to emphasise an atmosphere of Gotterdammerung but Richard Wagner’s Siegfried’s Funeral March is positively lyrical in comparison to the Parliamentary protest soundtrack.

Given the various production elements that I have discussed I viewed the piece with growing concern. This clearly was not a balanced objective “put both sides out there” piece of journalism, even although it purported to be that. In essence the writers and producers were paying lip-service (and not a lot of that) to journalistic standards.

During the Parliamentary Protest the journalists involved were on the ground filming and reporting on the event and gathering material which ended up in the documentary. They were challenged by the protesters and the indignant outrage of the journalists, who claimed that they were only doing their jobs, was clearly and unequivocally expressed. I am not sure if this arose from a journalistic attitude of entitlement or ignorance of what they were getting themselves into.

They were reporting on a group of people for whom distrust and scepticism of mainstream media is a significant article of belief. One of the problems in reporting on the contrarian position is that the mainstream media portrayal is largely unfavourable and merely cements in contrarian distrust. Indeed, there is even a point of view in mainstream media that suggests that by reporting on both sides of the protest, a platform is provided to a group that has been banned from Facebook for spreading misinformation.[2]

Another aspect of the problem faced by the media is the fact that the public interest journalism fund provides financial support for public interest journalism. So far, so good. A $55 million fund is available to support New Zealand’s media to continue to produce stories that keep New Zealanders informed and engaged, and support a healthy democracy. Again, so far so good.

The Cabinet paper supporting the fund sets out the difficulties that were faced by mainstream media organisations during the pandemic. But it is in paragraph 5 of the Cabinet paper that one of the objectives of the fund becomes clear. It states “The spread of misinformation related to COVID-19, particularly through social media channels, has sharpened public awareness of the importance of, and reliance on, a strong and independent media sector.”

As is so often the case in the current discussions on misinformation, the term is not defined but it is clear that there is a concern about the expression of contrarian views and that a viable and well-funded mainstream media may provide a counter to contrarian expression. Nothing wrong with a healthy debate, but a shadow is apparent when one considers the optics of the fund. From the contrarian position, the investment of $55 million in sustainable journalism is a means of controlling the message. The view is that of course mainstream media will report the government position favourably, if only to ensure that the cash keeps flowing. Although the presence of the funding may not lead to bias, it is the perception of bias that is the problem.

All of this is further complicated by the fact that the State sees itself as the sole source of truth. As the Prime Minister said to Parliament on 2 September 2020

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

It is little wonder that the contrarians have a perception of bias by mainstream media. The facts can give rise to that inference, and although there is a body of literature to the contrary, in the minds of many, perception is reality. Interestingly enough I understand that Fire and Fury was a beneficiary of that fund. In the minds of the contrarians, QED.

There can be little doubt that mainstream media and its position the arbiters of “truth” has been threatened by the rise of the Internet and social media. In many respects the Internet potentially provides everyone with a platform and in that respect enhances and enables a level of freedom of expression – the reception and dissemination of information – to an extent that society has not seen before. That everyone potentially has a voice is a long sought aspect of democracy.

What follows from this is cacophony and the expression of many and varying viewpoints. Many of these viewpoints are personal opinions only. They may be based on an incomplete or incorrect factual basis but they may, nevertheless, be validly held.

And if some of these views challenge established points of view or perspectives, so be it. To have our viewpoints or opinions challenged is the price we pay for being able to express our viewpoints and challenge those of others.

“Democracy is built on the right to dissent, on the right for people to hold opposing positions. Our societies need freedom of expression to protect us from the worst atrocities that governments can visit on their citizens.”[4]

There are times when a contrarian position will give offence. Salman Rushdie has made a number of comments on the freedom of expression and offence. The starting point is that no one has a right not to be offended. It doesn’t appear in any international instruments on human rights. Rushdie’s view is that

” If you are offended it is your problem, and frankly lots of things offend lots of people.”

Then he locates offence within the context of the freedom of expression

“What is freedom of expression? Without the freedom to offend, it ceases to exist.”

One of the ironies that came out of the Fire and Fury documentary were the expressions of offence on the part of some of commentators including Dean of AUT Law School Khylee Quince who expressed her offence at some of the associations that were developing within the contrarian movement. I would have thought that Ms Quince would have been a little more objective in the expression of her views. Being offended is simply not a good enough argument in my view. Perhaps she should have expressed her disagreement accompanied by reasons.

Underlying the documentary is a concern at the way that social media platforms enable the expression of contrarian positions. Facebook, Twitter, Instagram and other “big tech” platforms have taken steps to address some of the more extreme positions adopted by contrarians but there are other platforms like Telegram and Gab that appear to be quite unregulated and not susceptible to control. These platforms are seen as breeding grounds for disinformation.

Part of the problem about communications technology is the way that it can alter and change our approaches to and our expectations of information. A clear example is in the way that the printing press was an agent of change in the way in which information was communicated and the way that it enabled the expression of contrarian views. Martin Luther’s 97 theses that sparked the Reformation were circulated throughout Germany within two weeks of Luther initiating the debate by pinning his theses to the church door in Wittenberg. His views were as contrarian as they possibly could be and the printing press enabled the dissemination of contrarian points of view and still does.

The underlying properties of internet-based communications technology enable, as I have said, everyone to have a platform and to express a point of view. As I have observed, this is cacophonous but it does mean that people are far more willing to express themselves, often quite pungently, knowing that there may be little consequence visited upon them. The communications technology has enabled this shift in behaviour. The technology enables it.

One of the commentators on Fire and Fury expressed the somewhat interesting point of view that people can be radicalized by over-exposure to extreme ideas. This is an extraordinarily patronizing perspective as well as being a very wide and all-consuming generalization. There can be little support for the view that a whole community is going to become radicalized if they watch Counterspin media too frequently. This does a disservice to the intelligence and common sense of the greater majority of the community.

There are some who have adopted extremist views. Some in the Fire and Fury documentary use extreme language, calling for extreme and violent consequences. How much these people were playing to the camera would need to be assessed and in some cases such expression may be fuelled by highly charged emotions and anger. Although the protest at Parliament ended violently if there had been a true undercurrent of revolutionary violence it would have happened.

We may decry the over-exuberant expression that we see on Internet platforms. Our concerns must be measured against a recognition of the importance of freedom of expression. But regrettably I do not see a return to polite conversation. Communications platforms have been with us for too long and our behaviours have become too ingrained for there to be any likelihood of change. Although this may be seen as a form of technological determinism, it must also be recognized as a reality.

The final point that I would like to make is about the lessons of history, referred to in the opening introduction to the documentary. Was the protest at Parliament that unusual in the overall scheme of things. Was the language of the protesters so extreme. In 1787 in (to our ears) an erudite letter from Thomas Jefferson to William Stephens Smith, Jefferson said

“And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”

This language is probably as extreme as some that was used in March 2022 and yet it is over 200 years old and written at a time when the American Revolution had been successfully achieved.

History is full of similar examples – the French Revolution, the 1830 Revolution in France, the European Revolutions of 1848, the anarchists, Socialists and Bolsheviks of the period leading up to the 1917 Revolution and the student protests in Europe on 1968.

More recently one only has to look at some of the messaging from Al-Quaeda and Islamic State to see that the rhetoric continues. In 2012 protesters erected a mock guillotine to “decapitate” leading politicians as a demonstration against the sale of state assets. In 2014 a musician sang about wanting to kill then then PM and violate his daughter.

In New Zealand certainly in my time some of the so-called radical movements such as the Progressive Youth Movement, Halt All Racist Tours and associated organisations in the mid-sixties, spurred on by perceived societal injustices and taking their lead from similar organisations in other countries, protested and occupied public facilities, but often the radical language of the time was offset by the trending peace, love and flowers of the hippies.

The violence that accompanied the Springbok Tour of 1981 was as bad in its way as the violence at the end of the Parliament Protest, and was just as frightening. But all of this seems to have been forgotten and overlooked by the authors and producers of Fire and Fury. The point I am trying to make is that this is not new.

Interestingly enough, one of the leading lights of the 1960’s protest movement went into politics and was elected Mayor of Waitakere and latterly Invercargill. It is a matter of comment in mainstream media that some of the leading lights of Voices for Democracy and other contrarian groups are putting themselves forward for election in the upcoming local body elections. Some of them have done so before. None of them have so far been elected. Yet there is concern about contrarians exercising their democratic right to stand for election. As I understand it the availability of democratic process does not depend on the quality of your beliefs, although those beliefs may cause rejection by the electorate.

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

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

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

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[1] Graham Adams “Fire and Fury is often funny – unintentionally” The Platform 18 August 2022 https://theplatform.kiwi/opinions/fire-and-fury-is-often-funny-unintentionally (Last accessed 19 August 2022)

[2] Madelaine Chapman “Giving a Voice to Voices for Freedom” The Spinoiff 2 March 2022 https://thespinoff.co.nz/politics/02-03-2022/giving-a-voice-to-voices-for-freedom

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

[4] Ben Okri “Authors on the Salman Rushdie attack: ‘A society cannot survive without free speech’” The Guardian 14 August 2022 https://www.theguardian.com/books/2022/aug/14/authors-on-the-salman-rushie-attack-a-society-cannot-survive-without-free-speech

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.

The fault, dear Brutus, is not in social media/ But in ourselves

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The title of this post is a paraphrase of a couple of lines from “Julius Caesar” Act 1 Scene iii Lines 140 – 141 – apologies to Will Shakespeare of Stratford.

This post is a companion piece to one that I wrote about misinformation and to which reference is made. Lest there be any doubt I am not advocating for misinformation or disinformation. I dislike both. I am concerned with objective fact and reasoned opinion in an effort to ascertain truth and have been all my life.

It is easy – perhaps a soft option – to lay the spread of misinformation at the feet of social media. After all, people post to social media and in a sense the information remains passive until someone else reads it. And therein lies the problem. In my last post I advocated a position based on the employment of common sense and critical faculties – qualities that we all possess.

In this piece I discuss the importance of understanding the medium as a prelude to considering the “responsibility” of social media for the dissemination of misinformation. Exponential dissemination, as I argue, is an essential characteristic of digital communications systems and impacts upon our information expectations

In an earlier post I observed that the target of the concerns about misinformation is “the Internet” – a generalized target that encompasses a world wide communications network. A more recent comment on disinformation attributes its spread to social media.

In a sense, both critiques are correct but they both focus on the content layer rather than upon the medium itself. And it is when we understand the nature of the medium we realise that in many respects it enables many behaviours, some of which are execrable. But the problem is that the cat is out of the bag, the djinni is out of the lamp – which ever metaphor you prefer.

What we are facing are paradigmatically different behaviours in the communications space from anything that has gone before. And because the paradigm is a different one from that to which we are accustomed, we yearn to push back, to return to things “the way they were”. And in saying this we hearken back to an earlier communications paradigm that was, as is the present paradigm, defined and underpinned by the media of communication.

When Marshall McLuhan cryptically said “The Medium is the Message” he was saying that in understanding the impact of the message we must first understand the impact of the medium or media of communication. And although we tend to focus upon what we see and hear – the content layer – the real game changer lies much deeper than that – within the medium itself. It is the medium that enables behaviours and in many respects and as a result of continued use impacts upon the values that validate those behaviours.

Every medium of communication possesses certain properties or affordances that are not immediately obvious. My starting point is the analytical framework developed by the historian Elizabeth Eisenstein in her seminal work The Printing Press as an Agent of Change.^[1] In that work Eisenstein identified a number of qualities present in print technology that differentiated the communication of information in print from that communicated in manuscript. These qualities were not the obvious ones of machine based creation of content but focussed upon the way in which printed material was going to and did impact upon the intellectual activities of educated elites in Early-modern Europe. These qualities were beneath the content layer; not immediately apparent but vital in considering the way in which readers dealt with and related to information and ultimately had an impact upon their expectations of information and how, in turn, they themselves used print to communicate.

Using McLuhan’s suggestion and developing the way in which Eisenstein identified her underlying qualities of print technology, I have identified a number of different qualities^[2], some of which overlap and some of which are complementary.

However, rather than merely identify these qualities I have developed a form of taxonomy or classes of qualities which are occupied by specific exemplars.[3]

For example, I have identified what I call Environmental Qualities. They arise from the context within which digital technologies develop and are descriptive of the nature of change within that context, and some of the underlying factors which drive that change. Because digital technologies primarily involve the development of software tools which operate on relatively standard computing equipment, the capital investment in hardware and manufacturing infrastructure is not present in the development of digital tools, although it certainly is in the development of the hardware that those tools require.

Thus the development of digital software can take place in any one of a number of informal locations where the only requirements are a power supply, a computer and a programmer or programmers. This lack of infrastructural requirements enables the development of software tools which can be deployed via the non-regulated environment of the Internet giving rise to the qualities of permissionless innovation and continuing disruptive change which are discussed in detail.

A second set of qualities I have identified as technical qualities. These are so classified because they underlie some of the technical aspects of the new digital technologies. Some of these qualities are present in a different form in the print paradigm. Eisenstein identified dissemination of content as a quality of print that was not present within the scribal paradigm. I have identified exponential dissemination as an example of a technical quality – the way in which the technology enables not only the spread of content as was enabled by print, but dissemination at a significantly accelerated rate with a greater reach than was enabled by physical dissemination.

Another of the qualities that I identify as a technical one is that of information persistence, summed up in the phrase “the document that does not die.” Once information has been released on to Internet platforms the author or original disseminator loses control of that content. Given the fact that as digital information travels through a multitude of servers, copies are made en route meaning that the information is potentially retrievable even although it may have been removed from its original source.

Other examples of “technical qualities” such as the way in which linear progress through information challenged by navigation via hypertext link in what I call the delinearisation of information; the dynamic nature of information and its malleability in digital format; the way in which seemingly limitless capacity allows for storage of a greater amount of information than was previously considered possible; the apparent non-coherence of digital information and the need for the intermediation of hardware and software to render it intelligible and the problem of obsolescence of information caused by loss arising not from deterioration of the medium but as a result of the unwillingness of software companies to support earlier iterations of software which enabled the creation of an earlier and now inaccessible version of the content. All are aspects of technical qualities that underpin the content of digital information.

The third category of qualities are what I call user associated qualities – qualities that arise in the behaviour of users in response to digital information technologies. Among these user associated qualities is the searchability of digital information and its associated availability and retrievability arising from the development of ever more sophisticated search algorithms and platforms, and the ability of users to participate in the creation of and use of content as a result of the interactive nature of digital technologies, in particular social media.

In some respects aspects of these qualities overlap – they do not stand alone. Indeed the searchability of information presents its own special difficulties. Trying to locate information on the Network has been a problem even before the Internet went commercial. There were search tools such as Gopher in the early days but the advent of sophisticated algorithm driven search tools such as Google have changed the landscape entirely.

Algorithms also select and promote posts and information on social media and associated platforms and frequently select information that is “high engagement”. The algorithms that curate content do so to drive increased engagement. Thus we have a merging of searchability and user participation. The problem is that this imperative of increased engagement seems to attract users who are confused and often gullible and who seek information that confirms their worst fears. For them, social media becomes an echo chamber. But although it is the content that they seek, the availability of the content arises from the inherent qualities of the medium

Thus, all these qualities, cumulatively, have an impact upon our “relationship” with and expectations of information and which have an influence on behaviour.  One form of behaviour is what may be called the online disinhibition effect. This inevitably leads to a consideration of the contentious issue of the effect that new technologies have upon the way that we think. It is suggested that the issue is not so much one of neuroplasticity advanced by Susan Greenfield^[4] or “dumbing down” of attention spans as suggested by Nicholas Carr^[5] but a slightly more nuanced view of the way that the medium and the various delivery systems redefine the use of information which informs the decisions that we make.^[6]

Paradigmatically different ways of information communication and acquisition are going to change the way in which we use and respond to information. And we must recognise that change has happened, that some of our preconceived notions about information and its reliability must change, and that we must adapt our approaches. It is no good trying to hold on to past standards regarding information. They have morphed as a result of the new communications paradigm. It will be interesting to see how the proposed Content Regulatory System Review develops. The target is content, described by McLuhan as akin to  “the juicy piece of meat carried by the burglar to distract the watchdog of the mind” whereas the true target of the review should be the medium and the way that it is changing attitudes to content.

This rather lengthy discussion of the underlying nature of communications systems in the Digital Paradigm is really an introductory to a comment on a piece by Dr Jarrod Gilbert which appeared in the NZ Herald on 23 August.

The article deals with some of the more bizarre manifestations of behaviour and information that seem to beset us. Dr Gilbert acknowledges that this sort of thing is not new but that what is new is the ability for such views to spread quickly and widely – like a contagion as he put it, phraseology that would seem to be apt in these plague-ridden times – but he then lays the responsibility for this at the feet of social media. Social media, he says, provides the oxygen and then proceeds to look for the spark which, if I read him correctly, he attributes to disinformation.

We have to be careful with this word because it can get confused with its close cousin “misinformation”. Just to recap, I have discussed misinformation in an earlier post but it has been defined by the Infodemic Report discussed in that post as  “false information that people didn’t create with the intention to hurt others”. Disinformation, in the same report, has an element of malevolence to it – it is defined as false information created with the intention of harming a person, group, or organisation, or even a country.

The definition in the Oxford English Dictionary is less threatening that that appearing in the report but the dissemination of deliberately false information is common to both. The OED defines disinformation as:

“The dissemination of deliberately false information, esp. when supplied by a government or its agent to a foreign power or to the media, with the intention of influencing the policies or opinions of those who receive it; false information so supplied.”

Dr Gilbert then goes on to consider how bizarre ideas disseminated on social media spread so easily. One aspect is the authoritarian explainer personality whose commentary has an aspect of credibility even although there may be no basis for it. Another is the personality drawn to paranormal thinking or conspiracy theories. Once one conspiracy is believed it becomes easy to believe others.

Having considered the human element and the gullibility of audiences, Dr Gilbert turns his attention to social media and there is no doubt that the use of algorithms, as I have discussed above, enhances engagement which is an essential aspect of the business model of many social media platforms. The association of disinformation and social media is well known and deserves to be highlighted although, as I later suggest in this post, there is a sinister aspect to this within the context of an “authorized truth.” Another feature of social media is that it is not generally viewed as a trusted source of information. In a recent survey two thirds of those questioned expressed low trust in social media. So those about whom Dr Gilbert complains are in a minority and probably prefer the echo chamber that social media affords.

But are social media platforms the problem. I suggest that to say so is to look for the low hanging fruit. The problem is far more nuanced and complex than that. If we look at the underlying properties of the medium we find user participation and exponential dissemination enable the spread of ideas rather than heaping the blame on “social media.” These inherent qualities of digital communications systems would exist despite social media. It is just that social media have managed to “piggy-back” on these characteristics in developing business models.

As the title of this post suggests, with appropriate paraphrasing, the real fault is not with social media but with ourselves. The problems of misinformation and disinformation are not technical issues but are human issues – behavioural issues. It may well be, as I suggest, that behaviours have been modified by the properties of digital communications systems. But in many respects those systems are passive purveyors rather than active influencers. People are influencers, utilizing the enhanced communications opportunities provided by digital systems.

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[1] Elizabeth Eisenstein The Printing Press as an Agent of Change  (Cambridge University Press, Cambridge, 1979) 2 Vols. Reference will be made to the 1 volume 1980 edition; Elizabeth Eisenstein, The Printing Revolution in Early Modern Europe (Cambridge University Press (Canto), Cambridge, 1993).

[2] Eisenstein identified six for print.

[3] I have discussed the qualities or affordances of digital technologies in more detail in my book Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017). The qualities that I identify (and which are summarized above) are:

Environmental Qualities:

                Continuing disruptive change

                Permissionless Innovation

Technical Qualities

                Delinearisation of information

                Information persistence or Endurance

                Dynamic Information

                Volume and capacity

                Exponential dissemination

                The non-coherence of digital information

                Format obsolescence

User Associated Qualities

                Availability, Searchability and Retrievability of Information

                Participation and interactivity

[4] Susan Greenfield “Modern Technology is Changing the Way our Brains Work, Says Neuroscientist” Mail Online, Science and Technology 15 May 2010 http://www.dailymail.co.uk/sciencetech/article-565207/Modern-technology-changing-way-brains-work-says-neuroscientist.html (last accessed 25 July 2016)

[5] Nicholas Carr The Shallows: How the Internet is changing the way we think, read and remember (Atlantic Books, London 2010); Nicholas Carr “Is Google Making Us Stupid: What the Internet is doing to our brains” Atlantic July/August 2008 On line edition http://www.theatlantic.com/magazine/archive/2008/07/is-google-making-us-stupid/306868/ (last accessed 25 July 2016)

[6] For a counter argument to that advanced by Greenfield and Carr see Aleks Krotoski Untangling the Web: What the Internet is doing to you (Faber, London, 2013) especially at pp.35 – 36. For a deeper discussion see Chapter 2 under the heading “The Internet and How we Think.”

[7] New Zealand Bill of Rights Act 1990 section 14.

Covid 19 and the Future: Utopia or Dystopia

Once again an article by Simon Wilson has piqued my interest. In my post “The Culture of Idealised Individualism” I ventured to suggest that he is a bit preachy, a bit righteous, at times a bit of a high-horsed moralist. Certainly, I said, much of his thinking is left of centre. And as I emphasized in that post this is still a democracy and he is entitled to his opinion and to express it. He has a soap-box in the form of the NZ Herald. I have this blog with a rather less extensive reach. Yet Mr. Wilson recently put forward certain arguments and propositions that should be answered or challenged.

Mr Wilson’s piece in the NZ Herald for 5 May 2020 is entitled “Covid 19 Coronavirus: Simon Wilson: Is this the death of neoliberalism?” It is an interesting piece but is primarily a paean against a rather ill-defined view of neo-liberalism with a hope for some utopian collectivist future – a better society – under a benevolent Government that will look after our every need.

Allow me to unpick a few things. First, in the preceding paragraph I used the word “utopian”. The meaning usually ascribed to that word is an imaginary place or commonwealth, enjoying a perfect social, legal, and political system and depicted in a book in 1516 by Sir Thomas More.

Wilson’s words

“What we are doing now has the makings of a great achievement of civilisation. Those societies that get their pandemic response right have the chance to become more resilient, less burdened by their current failings, better able to face the next crisis and the next”

sound like a search for Utopia.

But was More’s Utopia a perfect society? Did he intend it to be a blueprint for an ideal commonwealth? Quite the contrary. More was a lawyer, and one of the skills that he learned at the Inns of Court – the training ground for members of the legal profession – was case putting. Case putting was a form of argument that was employed when one wanted to demonstrate the futility or impossibility of a certain proposition. It is a form of demonstrative oratory – one of the tools of rhetoric.

More demonstrated that his Utopia was not possible by the use of irony and ambivalence. “Utopia” from the Greek means “no place” – rather like Samuel Butler’s “Erewhon” which, of course, is “nowhere” spelled backwards

Behind what is ostensibly a serious text is satire. Ruskin considered it one of the most really mischievous books ever written and Erasmus, a contemporary and correspondent of More, suggested that one should read it if one wanted to laugh. A perfect society? I don’t think so.

But – and this is my second point – the word Utopia provides us with another – an opposite – and that is the word “dystopia” or, as John Stuart Mill put it, “too bad to be practicable.”

The word is frequently used in speculative fiction describing not a world we should not like to live in but rather one that we should avoid.

Mr. Wilson refers to the concept of dystopia in his article, quoting a libertarian MP at Westminster who suggested that a bill being introduced implemented a dystopian society. He went on to argue that in fact the measures being implemented are anything but that and that steps that are being taken are to build a better society. He suggests that New York is an example of dystopia.

Mr. Wilson is incorrect. The society in which we would rather not live has been forced upon us. The spread of a virulent disease, the illness and sudden deaths of many victims, the stress on public health systems, the disruption of movement, the interference with trade, the closure of borders all are aspects of a dystopian world.

And the unprecedented intrusion of the State into the lives of citizens, the prohibitions on freedom of movement and assembly, the indirect demeaning of any criticism or questioning all are examples of a society in which we would rather not live.

We are in a dystopia. Who really wants to live in this locked-down or partially locked-down world? We have been gradually sliding into dystopia since Covid 19 spread from its source to infect the world.

The dystopia is going to continue. The free society that we have enjoyed has come to an end. It is unlikely to return in an instantly recognizable form.

It has been frequently observed throughout this crisis that the Government has interfered with civil liberties and the ordinary lives of New Zealanders to an extent not seen since World War II – in fact I would probably suggest that the 1951 Waterfront Crisis with the invocation of the Public Safety Conservation Act (now fortunately repealed) was probably a more recent serious interference with civil liberties.

Dystopia not only encompasses unpalatable social situations. A reading of many of the science and speculative fiction works on the topic present a number of scenarios. One, favoured by Orwell (“1984”), Robert Heinlein (“Revolt in 2100”), Margaret Attwood (“The Handmaids Tale”), Ray Bradbury(“Fahrenheit 451”), and Aldous Huxley (“Brave New World”) suggest a political dystopia.

Film has also presented some graphic portrayals of dystopian societies. Based on the novels of Phillip K Dick “Bladerunner” and “Minority Report” are two examples.

“Soylent Green” based on Harry Harrison’s “Make Room, Make Room” propounded a society that literally fed on itself as the oceans died. There were disturbing aspects of voluntary euthanasia with rather ghastly consequences that made for a shocking climax.

“Logans Run” which propounded that everyone over 30 was a burden and therefore should be eliminated was very eerie, made more so by the initial panic over the risk of Covid-19 to those of us over 70 – as if we couldn’t assess the risk ourselves.

Ours is not as bad as these imagined dystopias but compared with the life that we enjoyed, the freedoms that we had and the relatively light hand of the State on our affairs, what we are in now is certainly dystopic.

I do not share Mr Wilson’s optimism that this is going to herald a new and better society. I see a continuing dystopia of increasing State interference in the lives of citizens, more State control over and limitations upon the freedoms that we have taken for granted for so long.

The main point of Mr. Wilson’s article is to trumpet the end of neo-liberalism although, as I have said, he doesn’t clearly define what he means. Roughly defined it means a modified form of liberalism tending to favour free market capitalism. Presumably he is calling for a return to greater State control of the economy and in the lives of citizens, citing the rush of corporates to the Government for assistance.

Certainly in this crisis the Government has a role. But let us not forget the purpose of the Government. It is to serve the people, not to control them. The people of Government are not called “public servants” for nothing.

The Government exists to protect the rights of the people, and to provide for their protection from foreign and domestic threats, to provide for the protection of their persons and property by a defined and clear Rule of Law framework and to allow individuals to choose for themselves how they will live their lives within the law both socially and economically. The role of the Government is therefore very limited and certainly not extensive.

At the moment the involvement of the Government in the lives of its citizens is highly invasive – reminiscent of a dystopia – and  the current situation will extend into Alert Level 2. And how long will that last? How long will we be subjected to decrees and proclamations from bureaucrats in Wellington? Do we really need to be patted on the head and told how good we have been by those who are meant to serve us? Do we really need to be told that because of the idiocy of the few all of us may suffer restrictions. That sounds like patronising school teacher-speak to me.

So how long will it be?  Until we get a vaccine? Or some other equally distant event? By the time we finally emerge into Alert Level 0 – if we ever do – the population will be so habituated to the 1:00 pm update that free will and freedom of choice will have vanished.

It will be the Government who will be telling us how to live our lives – as I said in an earlier post

“what to buy, how we should do this and how we should do that, and gradually we are allowing other people to do our thinking for us. The time will come when no longer will we make our own decisions, but some “big brother” will tell us what to do and what to think. We will be told who is good and who is bad, whom we shall love and whom we shall hate.”

I am sure that this is not the result that Mr Wilson wants. Nor do I believe, in his heart of hearts that he wants to see an end of freedom of enterprise, individual initiative, individual thinking and innovation and all the other aspects of a free and open society – especially the freedoms that he enjoys as a journalist to question authority and to speak truth to power.

It may be that the Government can provide, during this crisis, some direction. But it should have an exit strategy – mainly for itself. And we should know now what that exit strategy is. The resources that the Government has deployed should be viewed as temporary only – not as some initial investment with a view to maintaining control long after the crisis is over.

Mr Wilson’s rosy view of the future – of the opportunity that Covid 19 has presented – sounds hopeful on the surface – Utopian almost. But as we now know Utopia is an illusion.

The collectivist solution proposed by Mr Wilson, with its reduced focus upon the individual and an overly regulated and directed society – both politically and economically – is, to those who value liberty, initiative, innovation and individualism, a recipe for a continued dystopia.

History’s Distant Trumpet

I must say that I have been observing the activities of President Trump with a sense of deja vu or, as I have put it in the subject line, some notes of history’s distant trumpet.

 

 

There seem to have been a number of occasions within the various structures of what could be called participatory democracies or limited participatory democracies where there has been a content between the legislative and executive arms of government. I exclude the city states of Classical Greece and the activities of the various tyrants because of the disparity of constitutional arrangements but there are certain parallel between the decline of the Roman Republic and the crisis that faces the American Republic.

 

 

In the Roman example from about 146 BC – 13 BC there was an erosion of constitutional arrangements  where individuals such as Lucius Cornelius Sulla, Gnaeus Pompieus Magnus, Gaius Julius Caesar and Gaius Octavius Thurinus (later Gaius Octavius Caesar and finally Augustus) acting as they considered in the best interests or the Roman Republic, sought to cure the ills that beset it.

 

 

Of course there was a large amount of self interest involved, particularly on the part of Gaius Julius Caesar. Perhaps the only one of those who sought “to make Rome great again” who was acting for the benefit of the Republic was Sulla, but his methods left much to be desired. In addition he was aligned with the “optimates” – the conservative traditionalists of Rome – rather than one of the “populares”. But what happened was a gradual erosion of the participatory aspects of the Roman Constitution and the substitution of an arrogation of power by an individual. This, of course, reached its zenith with Augustus and the ultimate achievement of the Principate and in many respects Augustus was the smartest politician of them all because he maintained that he was not interested in the power that in fact he possessed.

 

 

But gradually over the period in question the democratic institutions and participatory methods of the Senate and the voting arrangements gave way to government by decree by small groups (the Triumviri) or individuals (in the case of Sulla and Gaius Julius Caesar as dictators).

 

 

The biggest difference between what happened to to Roman Republic and today’s US crisis is that all of the powerful individuals (and others such as Gaius Licinius Crassus, Gaius Marius, Marcus Junius Brutus and Gaius Longinius Cassius) managed to raise their own military forces to back them. Gaius Octavius acknowledges this in the first few lines of the res gestae – http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Augustus/Res_Gestae/1*.html

 

 

President Trump doesn’t have the power to raise his own private army and I would hope that if he attempted to use his powers as Commander in Chief to erode the Constitution he would receive a pushback. Even so, the power shift from the people to the President carries with it some of the notes of that distant trumpet. (For further reading see Catherine Steel “The End of the Roman Republic 146 – 44 BC” Ronald Syme “The Roman Revolution”, Tom Holland “Rubicon” and Carson McCullough’s novelisation of the period in her “Masters of Rome” series.

 

 

As a final thought have a look at a bust of Gnaeus Pompeius Magnus. Am I imagining a resemblance to President Trump?

 

 

One of the joys of a summer holiday in New Zealand is the opportunity to really dig into some serious reading. Although it had occurred to me before reading Diarmiad McCullough’s excellent biography of Thomas Cromwell, I was even more struck by the similarities of the governing styles of Henry VIII and President Trump. Like Trump, Henry was pretty merciless with those who displeased him and Cromwell – his arch fixer – was one of those victims. But what is interesting is the way that Henry governed during what Professor Geoffrey Elton called “The Tudor Revolution in Government” – a concept disputed by McCullough.

 

 

Henry was a prolific user of Proclamations as a means of getting things done. A review of the proclamations of his reign reveal rules and regulation addressing most aspects of day to day life in England. My especial interest in Proclamations focussed on those involving the printing press and the dissemination of ideas, but what is important is that although there may have been statutes that set out broad rule, proclamations were the day to day machinery by which those rules were put into effect. As the break with Rome proceeded and Henry began the land grab that ultimately ended with the dissolution of the monasteries (this is a gross simplification of a very complex series of activities) he insisted upon a legal basis for his actions validated by Parliament in the form of legislation.

 

 

Once the legislation was enacted, proclamations attended to the machinery side of the law. Indeed, any doubt about the legal validity of proclamations was dealt with by the Statute of Proclamations (I think it was 1536). Proclamations therefore allowed Henry to legislate by this means as well as with the help of Parliament.

 

 

If you have a look at the way Henry behaved – mercurial, unpredictable, impulsive, dictatorial – one can draw many parallels with the behaviour of Trump. I would not go so far as to say that proclamations were the sixteenth century equivalent of tweets. Perhaps their parallel is the Executive Order so beloved by this President and others before him. Furthermore, Henry and President Trump share an imposing physical presence although I doubt that Henry would favour the long tailed tie preferred by the President.

 

 

I recommend McCullough’s book on Cromwell. That said, it is not an easy afternoon read and is demanding and detailed. I have some familiarity with the events covered which made it a bit easier but that said I found myself reading a chapter at a time and taking an hour or so to digest what I had read. It provides an intellectual and academic backdrop to Hilary Mantell’s novels on Cromwell, the third of which, I understand, is on the way.

 

 

There are many other notes of history’s trumpet which I could advance. None of the parallels above or any others that there may be are on all fours with current events but many of the underlying themes are the same. The Stuarts tried to govern without Parliament and that ended badly for Charles I and to a lesser extent James II.

 

 

I suppose the overall lesson is that politics and democratic institutions are fragile things that carry within them the seeds of their own downfall. I hope that the present crisis in the US resolves itself in favour of the dream of the Framers. I often ask myself what Tom Jefferson or James Madison would think of things today and I imagine that there would be mutterings about the tree of liberty needing a bit of nourishment – need I say more?

 

 

I guess my biggest concern is that somewhere along the line the President may just step over the line and put the Constitution to one side either by completely ignoring Congress, governing by proclamation (Executive Order) or (heaven forbid) ignoring the wish of the people should they go against him in 2020. I don’t think it is impossible that he would ignore the will of the people and interpreting an electoral loss as a victory.