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Prime minister Jacinda Ardern and director general of health Dr Ashley Bloomfield (Photo: Mark Mitchell – Pool/Getty Images)
Prime minister Jacinda Ardern and director general of health Dr Ashley Bloomfield (Photo: Mark Mitchell – Pool/Getty Images)

OPINIONPoliticsMay 10, 2020

Geoffrey Palmer: Hallelujah! New Zealand government works

Prime minister Jacinda Ardern and director general of health Dr Ashley Bloomfield (Photo: Mark Mitchell – Pool/Getty Images)
Prime minister Jacinda Ardern and director general of health Dr Ashley Bloomfield (Photo: Mark Mitchell – Pool/Getty Images)

The public policy response to the Covid-19 crisis has been a great and instructive success, and Jacinda Ardern has proven herself a class above all predecessors as a communicator, writes former prime minister Sir Geoffrey Palmer QC. Plus: a note on the legal questions.

The global phenomenon Covid-19 poses challenges for New Zealand public policy. Decisions had to be made quickly. New Zealand has staved off the spread of the virus. We can learn from this crisis and not waste the lessons that flow from it. Positive hope springs from the New Zealand achievement.

The public service has needed strengthening and in this crisis it performed well. Two defects that have persisted for years were overcome in an instant: the silos and the absence of science.

The silo effect of departments doing their own thing and not being part of a joined-up government ceased. From the beginning of the Covid-19 crisis there has been a whole of government approach.

The policy adopted has been based on rigorous science, science that was changing as things developed. Never has New Zealand heard so much and to such good effect from epidemiologists.

Dr Ashley Bloomfield, Director-General of Health, a public servant, has been communicating directly with the public with clear messages. It is a long time since a public servant has become so well- known. Since he is a public health expert, with many legal powers in this emergency, it is appropriate he should articulate the need for the measures adopted.

In the old days public servants made more public utterances, especially on technical matters and it is a habit to which we should return.

The daily press conferences between the prime minister and the director general have provided understandable information, brilliantly communicated.  Jacinda Ardern has been clear and empathetic; in my opinion she is the most gifted communicator we have ever had as prime minister. The messaging has meant that the New Zealand public knows what is being done, why it is being done, and what will come next.

Having lived in the United States, I have examined carefully the New York Times, The Washington Post and The Des Moines Register on the issue and emailed friends. There exists there a confusing variety of policy approaches and a lack of consensus on how to approach the issue.

Political leaders in many places around the world have tried to control the debate, but quite a few do not know what they are talking about. Some ignore the science. False facts, conspiracy theories, ignorance and prejudice have run rampant.  To see health-care systems collapse in advanced European countries, to see governments dithering and not knowing what measures to take is depressing.

New Zealand so far has escaped the worst health effects of the pandemic, but at heavy economic cost. Recovery will be long and arduous; the old normality will never quite return. Covid-19 will change a great deal about how we live our lives in the long term.

Right now, we do not know in what ways or when. Rational policy based on good analysis, backed by science, is exactly the way policy should be made. Political ideology is no help in such an endeavour; you have to follow the data and analysis. Polarisation of the community must be avoided.

The public interest has to come first, although there must be reasoned debate on which policies to choose. I have long thought there is too much politics in New Zealand and not enough in-depth policy analysis, use of data and advice from experts. While we want the experts on tap rather than on top, their involvement is of critical importance on issues like Covid.

They were not drowned out by politics in New Zealand over the last six weeks. The media and journalists did a fine job, despite heavy economic damage to the news industry over the last 10 years.

New Zealand has seen good governance during this serious emergency. The special Epidemic Response Select Committee has provided excellent scrutiny. We should learn from this experience how to approach our future public decision-making.

Many lessons need to be learned from the calamity of coronavirus. The most fundamental lesson: promote well researched, rational policy, based on evidence and analysis.

More wicked decisions await. Demanding climate change decisions cannot be long delayed.

A word on the law

Important issues have arisen in the courts about the breadth of the legal powers used to combat Covid-19. Did the actions taken go further than the legal authority granted in the legislation passed by parliament? Under the rule of law such challenges are properly available.

Related to the powers issue is a dispute about handing over and making public the legal advice to government concerning the range of those statutory powers.

New Zealand has a common law legal system, similar in many respects to that of England and Wales.

The attorney general of New Zealand is the senior law officer of the crown and the solicitor general the junior law officer of the crown.

It is a long-standing constitutional convention that the substance of the advice from the law officers is not shared outside government in England and New Zealand.

Professor J Ll J Edwards, in a respected 1984 work The Attorney General, Politics and the Public Interest, stated there is “an impregnable moat” around the law officers’ opinions. Legal professional privilege applies to the crown.

The crown like any private person is entitled to legal professional privilege for the legal advice it obtains. Legal advice in departmental documents, cabinet papers and to ministers is protected from disclosure. The Cabinet Manual makes this clear and explicit for all legal advice to the crown from whatever source.

Legal advice is different in this respect from policy advice. The Official Information Act allows information to be withheld to protect legal professional privilege.

The attorney general can waive the privilege but that happens rarely. If that situation were to be changed it would require deep and careful consideration. There are dangers in changing the rule, particularly the risk of the advice hedging its bets and not being frank.

As a former attorney general I would not favour change. Section 7 of the New Zealand Bill of Rights Act requires a report by the attorney general on a bill’s compliance with the act to be tabled in parliament, but that is exceptional and was done by statute.

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