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Image: Tina Tiller
Image: Tina Tiller

OPINIONPoliticsNovember 24, 2021

In rushing through the ‘traffic light’ legislation, the government has failed us

Image: Tina Tiller
Image: Tina Tiller

A bill that allows the state to say ‘put this in your body or else largely forgo social interactions’ should be given time for proper scrutiny and debate, argues law professor Andrew Geddis.

By the end of the day, MPs likely will have passed the legislation required to enable the government’s new “traffic light” system of Covid controls, complete with the vaccination certificates people will be required to show to earn their freedoms under it. That legislation became available for us to view … yesterday morning. And it will become law without the general public having any opportunity to submit their views on what it says.

I’m not alone in regarding this lawmaking process as being a “constitutional disgrace”, as my VUW colleague Dean Knight has so appositely put it. I mean, let’s go back to the last time we had major legislation put in place to govern the creation of a new system of Covid controls – the enactment of the Covid-19 Public Health Response Act 2020, back in the now-halcyon days of our first national lockdown. At the time, I criticised the “ridiculous speed” with which it became law after the bill had been made available for some comment 18 hours before its introduction and then debated over a full two-day period. Now, having had the chance to reflect on that lawmaking process, the government appears to have decided on a “more cowbell” approach and moved even more quickly when enacting its new Covid-19 Response (Vaccinations Legislation) Bill.

The consequences of this legislative haste are problematic across the board. Here’s what the Ministry of Justice told the attorney-general when advising him on the bill’s consistency with the New Zealand Bill of Rights Act 1990:

“We have not yet received a final version of the bill. This advice has been prepared in relation to the latest version of the bill (PCO 24238/9.5). This advice has been prepared in an extremely short timeframe due to late receipt of the bill that was not in compliance with cabinet office guidance.”

Remember, this is a bill that authorises the government to set constraints on who can and cannot take part in large parts of social life for the foreseeable future, that specifically permits it to require people in certain occupations to be vaccinated, and that is going to authorise other workplaces to decide if their employees have to be vaccinated or else lose their jobs. It’s getting pretty close to effectively mandating that people accept a vaccination, even if it isn’t imposing direct penalties on them for not doing so. 

That may well be fine to do. I’m double-vaxxed, my kids are/will be when the age limits shift, and the science is the science. But, still, legislation that allows the state to say “put this in your body or else largely forgo social interactions” is a big step. And it’s one that ought to be taken with due respect; given time for proper scrutiny and debate, with input from an informed public.

Because, as this bill powered through all its legislative stages like a rolling maul punching over the Black Ferns forward pack, a whole bunch of pertinent information remained hidden from us. The New Zealand Council for Civil Liberties asked under the Official Information Act for a range of advice given to the government about its plans for vaccination certificates. First, the government apparently didn’t realise this request had been made, and so failed to respond to it in the time the OIA allows. Then, it refused to release the information because it will be made public “soon” … in late January, two months after the legislation authorising the use of vaccination certificates has been enacted into force. 

This is, to put it mildly, simply not good enough. Indeed, if you were trying to construct a lawmaking process to set off the conspiracy minded and undermine the social licence needed for success, it would look something like this. Hide the information that’s informed your legislation, introduce it at the very last moment, whip it through the House overnight, and present it as a fait accompli the next day.

Not, I hasten to add, that I subscribe to any conspiracy reasoning here. Rather, the reasons for the government’s behaviour are far more depressingly mundane. It has a parliamentary majority that allows it to act as it pleases. And, I suspect it thinks that the overwhelming public mood is one of “give me my summer and I don’t care how it is done, as long as it is done”. I also suspect that it is suffering from Covid fatigue as much as the rest of us. Struggling to meet the ever-changing challenges of the virus across a whole range of fronts is a grind, and just doing enough to cope counts as a major success. Certainly, that’s the message we’ve been trying to send out to our students through the last few fraught months.

But here’s the thing. When you’re the government, you’ve got to do better than “just enough”. Putting rules in place to allow society to function in the new Covid normal matters. But how you put those rules in place also matters. And in that respect, the government has failed us with this latest bill.

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Bulgarian election
Bulgarian-New Zealanders were barred from voting in their recent election over an Auckland Council clerical error. Image: Tina Tiller

PoliticsNovember 24, 2021

The lockdown election that wasn’t allowed to happen

Bulgarian election
Bulgarian-New Zealanders were barred from voting in their recent election over an Auckland Council clerical error. Image: Tina Tiller

Dozens of Bulgarian-New Zealanders were looking forward to voting in their contentious elections. An Auckland Council clerical error stopped them from doing so.

Elitsa Todorova was looking forward to voting. On November 14, the third Bulgarian parliamentary election of 2021 was due to be held after votes in April and July failed to allow competing parties to form a government. Todorova wanted to take part. “Bulgaria’s not had anyone in parliament for eight or nine months [during] a pandemic,” she says. “It’s been pretty messy back home.”

Todorova splits her time between Bulgaria and Aotearoa, but chose to wait out the pandemic here. She didn’t realise the country’s small Bulgarian community had found a way to vote in all of those elections. When her friend’s parents told her it was possible, she was all for it. “I was actually hopeful for the first time,” she says. “I really wanted to partake in this one.”

On the night before the election, her friend’s parents called Todorova to tell her the bad news. “They phoned me late on the Saturday night and told me we weren’t going to be able to vote,” she says. Something, apparently, was wrong with the venue. “It was too late at night for me to do anything about it.”

The news had spread from Rossen Mitev, the president of Aotearoa’s Bulgarian Society. For 20 years, he’s booked Auckland Council venues to allow New Zealand-based Bulgarians to vote in their elections. He’d already run two successfully this year. For the third, to be held while Tāmaki Makaurau was in alert level three, he booked his favoured spot, Takapuna’s Mary Thomas Centre, sent an email out to the several hundred people who wanted to vote, and arrived on Saturday evening to set the venue up.

When he got there, he found the doors locked, so he called Auckland Council and asked to be let in. It was then Mitev realised there was a problem. “They said, ‘Sorry, only essential services [are allowed in the venue], and your booking is cancelled.” The council’s Covid-19 policies meant no one was allowed inside the venue – even if it was to vote in a contentious overseas election.

Mitev was aghast. He’d gone to great lengths to prepare for the election and stick to Tāmaki Makaurau’s Covid protocols. He’d registered a QR code, bought a box of masks, had three 500ml tubs of hand sanitiser at hand, and had organised a one-way flow system to allow voters to stick to social distancing measures. He’d even purchased a box of 50 pens so they could be disinfected between use. “We could be as safe for staff and the visitors as possible,” he says.

The intended venue for Saturday’s vote, the Mary Thomas Centre in Takapuna (Photo: Auckland Council)

Despite his pleas, he couldn’t persuade Auckland Council to open the door and allow the election to happen. They told him an email had been sent cancelling his booking. It hadn’t. “I made a booking, all good. Then we paid it, all good. Then I got a confirmation, still all good, just like always,” Mitev says. “I fully believed that we could proceed with caution.”

It took an hour to contact a supervisor, yet his requests still fell on deaf ears. “They said, ‘Look, there’s absolutely nothing we can do.” In New Zealand, Mitev’s Bulgarian election plans were cancelled.

On the Sunday, Todorova leapt into action. She called the Auckland Council helpline and attempted to persuade them to allow the venue to open. “They said it wasn’t an essential service,” she says. “I said, ‘How is voting not an essential service?’” Todorova tried to organise another venue, but it was too late: Bulgarian election policies require the venue to be registered in advance, and while other countries allow mail-in or online voting, it has to be done in person. Once completed, the votes are transported, in person, to the nearest Bulgarian Embassy, in Canberra.

“Voting outdoors is just not an option,” says Todorova. “It was a really horrible day in terms of weather. The Bulgarians will not accept us voting from the beach.”

If he’d received that cancellation email in time, Mitev says he could have organised another venue. A friend of his owns a restaurant, which was closed because of Covid-19 restrictions, that could have been turned into a voting centre. If that didn’t work, a non-Auckland Council venue could have been booked. “Because we were told on Saturday evening, there’s no time … there’s nothing that we can do.”

Instead of taking votes, Mitev spent his Sunday responding to Bulgarians angry about being unable to vote. “Half the day I had to spend answering calls from people asking me, ‘What the hell?’” he says. “Bulgarians are very passionate people, about politics, sport, you name it.” Were they disappointed? “Hell yeah.”

Auckland Council has apologised to Mitev and Aotearoa’s Bulgarian community for the mistake. “Our team feels terrible and are upset about the issue, as it was never our intention to cause any distress,” a spokesperson told The Spinoff. “We were unaware of the reason the customer had booked the venue or the impact that a cancellation would have … This is a complex situation and Auckland Council apologises for any distress we may have caused.”

Extreme workloads, due to Covid-19, were to blame, the spokesperson said. “Unfortunately, due to the extension of Covid-19 restrictions confirmed by the government, staff were required to cancel all venue hire bookings, as indoor gatherings are not permitted for any number of people. With the sheer volume of work the team was under, a cancellation notice to the customer was missed and they didn’t receive any communication.”

Despite not being able to vote, one good thing has come out of the election, says Todorova. “The political party that I was going to vote for has been elected, which I’m very relieved to hear,” she says. But there’s another issue: she, and the rest of the Bulgarians living in Aotearoa, couldn’t vote in last weekend’s presidential elections. To do so, they would have had to have voted in the parliamentary ones to do so.

Todorova, though, says Auckland Council’s apology isn’t enough. She says the incident undermines New Zealand’s reputation as a “democratic utopia”. She’s contacted multiple news outlets trying to get coverage of the situation, only to be rejected. “It’s really frustrating when things like this fly under the radar,” she says. “I didn’t expect it from New Zealand.”

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