And who watches over the use of that power? Law professor Andrew Geddis on the way authority operates at Covid-19 alert level four. 

Most of the time, we think of governing in pretty immediate terms. How effectively has the minister messaged their transport policy? Does the coalition have the numbers in the house to pass its bill? Will this new regulation affect my coffee cart business?

There’s some reason for that. As a species, we appear to have a tendency to prioritise the near and tangible over the long-term and abstract. And our modern communications environment only intensifies that tendency. Today’s news isn’t simply tomorrow’s fish-and-chip wrapper anymore. Rather, the last hour’s tweet is nothing more than so many electrons on a computer chip … because that’s how the internet works.

But the people actually in government, if they are even halfway decent at their job, have to think in a different way. They must consider not just what is happening now, but what could happen down the line. For which they then have to plan, so that we collectively have some idea of what to do if a black swan really does choose to come nest on our roof.

(On that point, remember way back in 2018 when the government’s coffers were filling up and Grant Robertson was facing intense pressure to spend it all (or give it back in tax cuts), but wouldn’t because of the claimed need to save “for a rainy day”? Well, now it’s gotten pretty freakin’ wet out there, it turns out he was right on the money (to coin a phrase … and thank you, I’ll be here all week).

The announcement that we’re going to shift to Covid-19 alert level four saw the fruits of such planning in spades. Plans that stretch back years, even decades, in recognition of the fact that what we experience as “normal” life actually rests on some pretty fragile foundations. When those foundations look like they are about to give way, government proves its real worth. Just as there (allegedly) are no atheists in a foxhole, there’s precious few libertarian micro-statists during a pandemic.

So, rather than heading down the route of societal collapse and the Bartertown method of resolving resultant conflicts, we’re facing a collective lockdown that will get enforced by central authority, combined with the ongoing provision of essential services and monetary support based on the state’s credit. Underpinning that response lies a bunch of different plans, policies and powers.

Ensuring a “whole of government” response

While no-one expected Covid-19 (cue obligatory Monty Python reference), the threat of global spread of some deadly disease is something that government has consciously prepared for since at least 2002 when the “New Zealand Influenza Pandemic Plan” first was created. As the acknowledgments section of that plan notes, its content is directly influenced by our experience of the 1918 influenza epidemic. Although a combination of effective modern medicine and conspiracy thinking – “how do we know vaccines are really safe, man?” – may have lulled some of us into a false sense of security, the government still remembers that the death of tens-of-thousands always is just a species-hopping mutation away.

This plan doesn’t tell government exactly what to do should an epidemic hit these shores. Rather, it tells each bit of government what its role will be and what it needs to do to prepare to fulfil it so that there’s as few gaps as possible in our collective response. It also sets out how decisions will get made and by whom, and how those decisions will be communicated so that everyone works in a common fashion. And it checks that each bit of government has the powers it actually needs to carry out its role.

In other words, the government doesn’t have to start from a blank page when deciding exactly how to respond to a disease like Covid-19. There’s a template that can then be adapted to meet the severity of the threat at hand. Which in the case of Covid-19 is pretty goddamn severe, which leads to …

National state of emergency

When announcing our immediate shift to Covid-19 alert level three, and impending move to level four, Jacinda Ardern told the media that “of course we are in a national civil defence emergency”. While I haven’t been able to find confirmation that the Minister of Civil Defence formally has declared this exists as per the Civil Defence and Emergency Management Act 2002, I expect that if he hasn’t done so yet, he will do so very soon. After all, if shutting down virtually all of New Zealand for a month to avoid multiple deaths doesn’t constitute a national emergency, then exactly what does?

In a state of emergency, government power to combat Covid-19 expands even beyond the already extensive authority given by the Health Act 1956. In particular, police officers get the independent power to enforce “social distancing” measures, by “direct[ing] any person to stop any activity that may cause or substantially contribute to an emergency.” And the Government is authorised under the Civil Defence and Emergency Management Act 2002 to provide food and shelter to those affected by the emergency, which may become important if commercial supply chains start to fail.

Epidemic notice

In preparation for moving to level four tonight, the prime minister has declared that Covid-19 is “likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand … significantly.” Or, as my kids might say, *furious eyeroll*, “Duh, Dad!!!”.

Such a declaration under the Epidemic Preparedness Act 2006 then enables ministers to set aside bits of our statute law that are judged an impediment to combating Covid-19. Those powers already have been used to modify the effect of parts of the Social Security Act and Immigration Act.

It’s also why Parliament has been called to meet this afternoon – the Act (as well as the Civil Defence and Emergency Management Act 2002) requires that that this happen, in order to let all our elected representatives hear the reason for the declaration and so why their usual power over the nation’s laws is being gazumped.

The prime minister’s declaration, I suspect, will be unanimously supported. After all, parliament united to give the executive government even more extensive law-amending powers following the Christchurch earthquakes. And the current national threat certainly rivals (and probably outstrips) those disasters. I’ll say a bit more about how those powers will get overseen at the end of this piece.

But before then, it’s worth noting some limits on them. They can’t be used in relation to a bunch of specific enactments:

• the Bill of Rights 1688,
• the Constitution Act 1986,
• the Electoral Act 1993,
• the Judicial Review Procedure Act 2016,
• the New Zealand Bill of Rights Act 1990,
• the Parliamentary Privilege Act 2014,
• the Epidemic Preparedness Act 2006 itself.

Consequently, ministers can’t unilaterally change the term of parliament to extend the election beyond the end of this year. If that needs to happen – and it surely has to be a real possibility, depending on how the next month goes – then 75% of MPs still are needed to agree. Which also raises the question of whether the existing coalition should have the moral mandate to govern on past the end of the usual parliamentary term. Questions for another day, perhaps, but still questions we may need to ask.

Police powers

It would be nice to think that all that is required to knock out Covid-19 is the goodwill and voluntary compliance of each and every one of us. Resisting the temptation of sneaking a visit to a friend’s house for a coffee and chat. Saying “no” to your dad when he says he’ll just pop in for half an hour and promises he won’t touch anything. Committing to completely breaking the transmission chain, so that Covid-19 has nowhere left in which to breed.

But the impending level four lockdown poses real collective action problems. Sure, if everyone does “the right thing”, then we’ll all be OK. What, though, if someone doesn’t do this? In fact, what if lots of people don’t? Will I and my family then be the ones left out, facing disaster because we followed the rules when others did not? And if that’s the case, shouldn’t I break the rules before others do?

It’s this problem that leads to panic buying at supermarkets (as well, apparently, as at gunshops … which indicates where at least some people think things might go). It’ll also be the problem that could cause some people to fail to follow the self-isolation rules in weeks to come. After all, why put yourself through a month of social and mental hardship if you think a significant number of other people aren’t bothering to do so?

Here the police’s role kicks in, for two reasons. First of all, there are some situations where you really do want a firm hand available. To deal with those pushing into a supermarket line because “I waited 90 minutes yesterday and I don’t want to do it again”. To disperse those sitting in a park with a bottle of wine because “the fresh air will blow any virus away”. And so on.

And second, because the existence of such a visible firm hand can give confidence to everyone that the rules that are in place will get followed, so we ought to do the same. I don’t have to rely solely on the comfort of strangers (or, the goodwill and trustworthiness of people I nod to as I drive on my street).

The powers that the police then have to provide that reassurance largely existed before Covid-19 ever was heard of. Fighting over toilet paper in the Pak ‘n Save aisles was an arrestable offence before the virus came to town. Pushing into line was “disorderly behaviour” even when those lines weren’t caused by fear of running out of baked beans. And so on.

But with the various Health Act, civil defence emergency and epidemic notices in place, the police’s powers have become exponentially greater. And they can call on that other muscled arm of the state, the defence force, to bolster their numbers. Anyone wanting an illustration of Max Weber’s definition of the state – “the only human Gemeinschaft which lays claim to the monopoly on the legitimated use of physical force” – need only look out their car window over the next few weeks (but only while driving to the supermarket or other essential service, of course).

Now, a quick coda to this. I don’t want to be seen to be fetishising the strong arm of justice here. All the force in the country won’t work against Covid-19 unless the vast majority of us voluntarily commit to doing the right thing. And over the next four weeks human kindness and concern will matter every bit as much, no … will matter far more than, coercive enforcement of “the rules”. The police on our streets may give us the confidence to show that human kindness and concern – but each of us individually will have to look within ourselves to find it.

Who is watching all this?

Exceptional times call for exceptional measures. And in order to respond quickly to those times, we are going to be devolving a lot of power onto our executive branch of government. We do so in the trust that this power will be used to help us through a near-unprecedented challenge, because only collectively can we do so relatively unscathed.

But. There is a but. History also is replete with examples of turning to authority for security, only to find that the cost of doing so is much higher than expected. And the people who will wield that power are, after all, people. Subject to the same sort of impulses that cause a person to think that they are going to need 60 rolls of toilet paper in their house; or that Asian people somehow are more susceptible to carrying the virus.

What, then, watches over the use of that power by people? Well, it won’t be parliament in its usual form. That institution is being adjourned until April 28 – by which time we hopefully have starved Covid-19 from our shores. In parliament’s place, however, will sit a special cross-party select committee of MPs, chaired by the leader of the opposition, Simon Bridges. Its brief will be to scrutinise the government’s actions in relation to Covid-19; not as a rubber-stamping cheering section, but as a genuine venue for asking “did this need to happen, and why?”

Apparently that committee will be open for public viewing via the web. I’d like to think it will be a reasonably popular thing to watch on the three days a week it sits. Because big things are about to be done to us in the name of our safety. Let’s make sure they are the right things, for the right reasons.

More from Andrew Geddis on Covid-19 and NZ law:

The government is giving new orders. What is the legal basis for them?