Emergency COVID-19 legislation needs additional safeguards, says Law Society
The COVID-19 Public Health Response Act, recently passed under urgency, enables orders imposing the most profound peacetime restrictions ever made to the rights and personal freedoms of all New Zealanders, and the New Zealand Law Society | Te Kāhui Ture o Aotearoa has recommended nine amendments to provide additional safeguards on the exercise of powers under the Act.
The Law Society told Parliament’s Finance and Expenditure Committee today it agreed that new legislation to deal with the ongoing public health response to the COVID-19 emergency had been needed and the new framework was an improvement, but it should have had public and select committee scrutiny before being passed by Parliament.
“Allowing just a few days for the usual select committee process would have enabled better consideration of the legislation before it was enacted, and increased its public legitimacy,” Law Society spokesperson Jonathan Orpin-Dowell told the committee.
The Law Society supports the Finance and Expenditure Committee’s post-enactment review, which is an innovative procedure and an opportunity to review and improve the Act.
“The problem however is that time is very short to allow Parliament to consider and amend the Act before Parliament adjourns on 6 August ahead of the general election – and it is essential any amendment bill introduced to correct shortcomings that weren’t picked up earlier because the Act was passed under urgency, is given proper select committee scrutiny,” Mr Orpin-Dowell said.
The Law Society has therefore asked the committee to report to Parliament at the earliest available date, so there is time for any proposed amendments to be considered and enacted without using urgency, before Parliament adjourns. This is particularly important if powers under the Act need to be used in the event there is a resurgence of COVID-19 cases and New Zealand returns to a higher alert level.
“As is now well known, restrictions in alert levels 4 and 3 impacted on almost every aspect of New Zealanders’ lives, and restrictions on the rights and freedoms of all New Zealanders may be imposed again under the new Act,” Mr Orpin-Dowell said.
“One important amendment is to impose a higher threshold for the making of a section 11 order, that the Minister is satisfied the order is “reasonably necessary” as a proportionate response taking into account wider economic and social considerations,” Mr Orpin-Dowell told the committee.
The Law Society has also recommended other changes to the Act, such as strengthening Parliament’s oversight and scrutiny of orders, and improving New Zealanders’ ability to access orders so they can understand and comply with the law.
It is also important to reconsider the risk threshold for Police to exercise the power to enter premises, including private homes, without a warrant.
The Law Society acknowledges the challenging balance required between enforcement action to prevent the spread of COVID-19, and New Zealanders’ rights under the Bill of Rights Act to be free from unreasonable searches. However, this balance could be better struck in the Act, by reserving the warrantless powers of entry only for cases where a constable has reasonable grounds to believe it is necessary to enter premises to provide a direction to prevent an immediate risk to the life or safety of any person.
The Law Society’s submission on the COVID-19 Public Health Response Act 2020 is available here.
The COVID-19 Public Health Response Act 2020 is available here.
Media enquiries: Rebecca.Lancashire@lawsociety.org.nz
The New Zealand Law Society|Te Kāhui Ture o Aotearoa has a statutory function under the Lawyers and Conveyancers Act 2006 to “assist and promote, for the purpose of upholding the rule of law and facilitating the administration of justice in New Zealand, the reform of the law”.
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Last updated on the 11th June 2020