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PoliticsMay 13, 2020

The clock is ticking: Parliament’s mad dash to pass a level two law, explained

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The legislation soon to be signed into law allows the government to keep doing what it’s done so far – while also giving it controversial new powers, writes political editor Justin Giovannetti.

The government is currently attempting to quickly push through legislation that provides ministers and police with sweeping powers to battle Covid-19 for years to come. The new rules will impact every New Zealander as we enter a new normal.

Why are they doing this?

The country went into lockdown under a series of laws designed for short-term emergencies. The main law used, the nearly 65-year-old Health Act, wasn’t really designed to create and enforce constraints on people’s lives over many years. The government also received legal advice that it was probably flirting with a court challenge if it didn’t come up with a law for the long-term.

While this legislation is necessary to allow for Covid-19 rules to continue under level one and two, it also allows the government to quickly ramp back up to level three or four again if needed.

So what do I need to know?

The most important point about this is that the legislation allows the government to keep doing what you’ve seen over the past number of weeks. Lockdowns, quarantines as well as police warnings and fines for flouting social-distancing rules are now something the government can create and enforce with ease.

You may have heard that police will be able to enter your house without a warrant if they think you’re violating the government’s Covid-19 rules. The health minister can also designate almost any government employee to enter a business and shut it down if people aren’t following the rules.

Initially the government wanted to give police the explicit power to enter marae without a warrant. However, they dropped the language in the legislation because of widespread unease that the law seemed to target marae.

Prime minister Jacinda Ardern said today that the language was meant to protect marae, but conceded that it had not been well received. With the change, police can still enter marae without warrant and must report the entry to a local marae committee. In practice, nothing changed.

So what changes?

Up to now most of the rules you’ve been living under have been approved by the director general of health, Ashley Bloomfield. Under the new legislation, those powers are now shifted to the health minister. The minister can now order regions into quarantine if the virus flares up again, or he can order entire groups of people to stay home.

How long will this law be in effect?

Initially the government wanted the legislation to last for two years, but it eventually agreed with a change proposed by the National Party that parliament vote every 90 days or so to keep the law going.

Why does the government say we need this?

Enforcing level one and two is pretty much impossible without it.

And what does the opposition think?

They aren’t all that happy about it. National’s Judith Collins warned that it felt like we would be entering a “police state”. ACT leader David Seymour initially said he supported the government because the legislation allowed for the return of rule of law. But on Wednesday morning, after reading more of the 36 page document, he said it went too far and retracted his support.

Justice minister Andrew Little in parliament today.

Wait, go back a minute. The cops can enter my home without a warrant?

Yep. Under this legislation, if the police have “reasonable grounds” to suspect you’re failing to comply with Covid-19 rules they can now enter your house without getting a court order. In practice, that means if you have a lot of cars parked out front or loud music and lots of voices spilling out of your house, you should probably expect a visit from the police. It’s unclear if they’ll knock before they let themselves in.

They can also enter any vehicle, land, boat or pretty much anything else you can imagine.

Police have been allowed to enter without a court order throughout the Covid-19 emergency. They now need to write up a report and document their reasonable grounds after they’ve made a warrantless entry to your house. That’s a new rule meant to create more accountability.

Were police allowed to enter my house without a warrant before Covid-19?

While the new enforcement powers are “pretty extreme”, according to Andrew Geddis, professor of law at the University of Otago, New Zealand has a long history of allowing police to make warrantless entry into private homes.

Existing legislation lets police enter your house without warning to stop a serious crime, to take your guns, to take your drugs or to catch a spy (really).

What do business owners need to know?

While only uniformed constables can enter your home, the legislation allows the minister to pretty much designate any government employee as an “enforcement officer” to enter businesses. Those officers can enter a business and order it closed immediately if the rules are being broken.

The government asked Andrew Geddis for his advice before making the legislation public and this was one of the sections he was worried about, he told The Spinoff. Enforcement officers don’t actually need to provide businesses with any type of written order or reasoning for shutting them down under the legislation. So if a businesses had to go to court to complain, their evidence for the judge would be: “Mate in a fluorescent vest walked in and told me to shut down”.

The government could create rules in the future to require more from enforcement officers.

This feels like it goes pretty far. 

The legislation certainly restricts some civil liberties in exchange for combating Covid-19. The government released a 12-page legal opinion that concluded the legislation respects New Zealand’s Bill of Rights.

While during normal times you can expect that police can’t enter your house without a warrant, the legal advice concluded these aren’t normal times. “The exceptional nature of the risk posed by Covid-19 does justify some limits”, it said.

Do civil liberties groups back the government on this?

Not really. Amnesty International has said that it doesn’t “believe sufficient human rights scrutiny has taken place”. The group has asked parliament to undertake a deeper review in the coming weeks so that the public can have faith in what are really far-reaching new powers. The Human Rights Commission had similar problems with the rushed nature of the legislation and the lack of public oversight so far.

So when does the government want this legislation to come into force?

It needs the bill to pass into law by 11.59pm, when alert level two begins. If that sounds ridiculously fast for legislation only made public yesterday afternoon, that’s because it is.

Keep going!