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Andrew Geddis: The level two law is necessary – and full of flaws

The shortcomings seem to reflect a broader problem with how Māori have been overlooked in the plans to move to level two.

On Tuesday and Wednesday, parliament raced into law the “new normal” framework for our lives until Covid-19 is finally vanquished.

That sounds dramatic, but it’s true. The now in force Covid-19 Public Health Response Act 2020 allows for varying orders that can dictate how businesses may operate, how people may socialise, and how these requirements can be enforced. While MPs must agree to roll this legislation over every 90 days, it could very well be in place for the next two years.

A necessary law

Of course, there’s good reason for having this law. We’ve all given up a lot to (apparently) eliminate Covid-19 from the country. If it re-emerges, then that sacrifice could be for naught. And so there’s still a need for a collective response that people can be made to adhere to.

I mean, we could go down the “Swedish route” instead and just trust everyone to behave sensibly in level two. But that really hasn’t worked out quite so well for them. Also, as this piece points out, even Sweden has a lot more legal restrictions in place than most media accounts of their approach acknowledge.

And in many ways, this new legal framework is a decided improvement on the one we’ve been living under since lockdown began (even setting aside the questions about its basic legality). The new law puts responsibility for the orders we’ll all have to live under with an elected minister rather than, as under levels three and four, a public health official. If the minister screws up those orders – tries to limit funerals and tangihanga to only 10 people, for instance – then they and their government can directly carry the political cost for doing so.

The law also clearly demarcates the things to be considered when making such orders, as well as what they can require us to do (and not do). There’s no more relying on broad powers to “isolate or quarantine” persons to craft detailed and specific restrictions on our lives. While the law still allows for quite intrusive enforcement measures for these orders (more on this in a moment), they actually are less so than we’ve faced over the last seven weeks.

Ridiculous haste

However, the good bits to this new framework don’t take away from the fact that it became our governing “normal” with quite ridiculous speed. A number of outsiders (I was one) got an advance copy of the bill at 5.30pm on Monday, with an invitation to provide comments by 10am the next morning. Things like having to cook dinner, put kids to bed and, you know, sleep, further ate into that time.

The bill was then introduced into the House of Representatives on Tuesday afternoon, got debated into that evening, and approved by MPs the next day. It was signed into law by the governor-general less than an hour after its passage through the house.

That’s, well, pretty quick, even by the standards of New Zealand’s parliament. And it’s meant that some bits of the legislation didn’t really get the attention they deserved, while the response to some concerns about it was frankly sub-optimal.

For example, the law now allows for the appointment of “enforcement officers” to check that people are complying with the requirements of whatever notices are put in place to counter Covid-19. These enforcement officers all have to be Crown employees, who are “suitably qualified and trained” (whatever that means!).

Once appointed, these enforcement officers are empowered to “enter, without a warrant, any land, building, craft, vehicle, place, or thing if they have reasonable grounds to believe that a person is failing to comply” with whatever level two requirements currently are in place. Except, they can’t use this power to enter into “a private dwellinghouse” (more on this in a moment).

Having entered such places, an enforcement officer is then empowered to direct any business or undertaking that they have reasonable grounds to believe is not complying with the level two requirements to shut down for up to 24 hours. They can do so verbally, without any requirement to report to anyone else that they have done so.

A business that fails to comply with the direction commits an offence that can see you jailed for up to six months. And if a business wants to dispute the enforcement officer’s direction, they can only do so by asking a District Court judge to consider the matter.

I would have thought that this sort of power might be worth a bit more scrutiny than it actually received. In particular, the pretty lax procedures that enforcement officers need to follow – no requirement for record keeping, no reporting the use of their powers etc. – seems less than ideal to me. However, it is now the law.

Warrantless entry

Let’s then go back a bit to one of the things these enforcement officers cannot do; enter into “a private dwellinghouse”. Instead, police officers are empowered to do so without requiring a warrant, in order to direct people to comply with level two requirements.

This power did get a bit of attention from MPs during debate in the house, with some erroneously claiming that the police can’t do this sort of thing under any other law. Actually, they can in order to stop serious crimes or protect life, to take peoples guns away, to take peoples drugs away, or to catch spies. And they also have been able to do so since April 3 in order to enforce the Director General’s Health Act 1956, s70(1)(f) notice. That’s how, for instance, these gang members got arrested for breaching level three rules at a party in a private house (with, I note, not a peep of concern from anyone about the police’s use of their powers).

Whether that means that the police should continue to be able to do so in order to enforce level two rules – break up parties with too many people at them, and so on – may legitimately be debated. But when deciding that it is the police, and not enforcement officers, who ought to be able to do this in people’s private homes, the government also decided that marae should be treated in the same way.

The bill and tikanga Māori

Now, I think that the government had good motives for doing so. It basically recognised marae as being important as the individual homes in which we live. However, here’s what the original bill said: “A constable may enter a private dwellinghouse or a marae without warrant”.

That is pretty confronting, given past Māori experiences of police enforcement actions. If the name Rua Kēnana is unfamiliar to you, you should read this. And so a statutory provision authorising police to enter a marae without any heed to te kawa o te marae, in order to tell the people on the marae what they can and cannot do, can engender real anger.

What then can the government do about that anger, in the short timeframe it had given itself to pass the legislation? It could, I guess, have completely carved out marae from the enforcement provisions and said that while level two rules will apply, it is for the marae to ensure compliance with the rules. But good luck getting New Zealand First to agree to that.

And so the bill was changed so that enforcement officers now can enter onto marae just as they can businesses and other premises. That actually seems to disrespect marae more than the original bill did, by saying that mere Crown employees can come onto their grounds without a warrant to tell people what to do.

Of course, now the law is in force there, perhaps there will be additional protocols developed to govern just how such entry can take place. One approach might be to designate Māori wardens as being enforcement officers if these officials were felt to be an appropriate form of authority for a marae context. But even so, on its face, the law still permits them to enter marae without being called on by the tangata whenua. That struck me as not being a tikanga consistent form of legal regulation.

And this particular issue also seems to reflect a broader problem with how Māori have been involved (or rather, haven’t been involved) in the plans to move to level two. The quick reconsideration of the number of people permitted at tangihanga looks to exhibit a similar blind spot.

Partway through level four, Auckland Law School’s Dr Claire Charters suggested that “in this wash of emergency law and regulation needed for the Herculean effort to protect the lives of all New Zealanders from this insidious virus, te Tiriti o Waitangi must continue to be the lighthouse on the shore, guiding our way”. Unfortunately, the government seems to have missed its signal and rather run itself on the rocks as a result.



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