2020 saw the introduction of powers from the Government the likes of which have never been seen before. All of us were ordered to stay home, and on the whole almost all of us did. Something that any other year would have seemed like a dangerous slide into 1984 territory.
But the Government didn’t go down the road of using a vast new power to declare authoritarian rule, instead they did it the kiwi way – or as Dr Dean Knight from Victoria University of Wellington likes to put it – with “a degree of pragmatism and some doses of constitutional humility”.
“This was one of the biggest public law incidents of a generation, and what we saw the Government doing was extreme but with a wise purpose,” says the Associate Professor, Faculty of Law and member of the NZ Centre for Public Law.
“But what’s really interesting about the New Zealand response was that it wasn’t constitutionally bombastic. The Government didn’t immediately seek new powers or immunise them from constitutional challenge. They looked at existing ones and how those could be pulled together through some innovative pragmatism.
So unlike so many other countries, New Zealand has traversed the legalities of lockdowns, not regardless of human rights, but with the aim to be consistent with human rights
“In fact, all the orders that were made and continue to be made under the Health Act and the Covid-19 Public Health Response Act are secondary legislation. They are subordinate instruments that can be invalidated if they’re inconsistent with the Bill of Rights Act. They can be disallowed through Regulations Review Committee processes on the grounds that they unduly trespass on our rights.
“So unlike so many other countries, New Zealand has traversed the legalities of lockdowns, not regardless of human rights, but with the aim to be consistent with human rights.”
Dr Knight believes the level of accountability the Government has held itself to is one of the reasons that the “team of five million” formed such a tight bond, and we haven’t seen the kind of protests and civil disobedience that other nations are grappling with.
“When I talk about constitutional humility, part of that for me is the level of accountability the Government exposed itself to. They didn’t shut down democratic checks and balances, they worked with them – decisions were explained and continually interrogated in order to enhance their legitimacy.
“For example, when I mention to colleagues abroad that Cabinet papers are being released on a monthly basis, their jaws literally drop. They’re getting nothing like the information we have here – blow by blow accounts of the decisions that were made by Cabinet during the height of the lockdown.”
Another interesting point of difference with our public law that Dr Knight points to is the fact that as a culture we’re not litigious by nature. We’ve not seen the rush to test Covid laws in court like there has been in other countries, apart from the notable Borrowdale case well after the lockdown was lifted.
Whilst our approach has been very different to other nations, Dr Knight is keen to point out that not everything has been perfect. Early messaging during the lockdown was condemned for breaching the rule of law. There has been rushed legislation which wasn’t tested at the appropriate point by Select Committee. And the wrong version of a Bill was passed but nobody noticed!
“It’s important to remember from this time that, while the Government can act at speed and laws can be passed quickly, this was an exceptional time. This way of doing things can’t bleed into normal life.
“But what this year has shown is that we have a pretty good constitutional culture, built over decades, with strong values and lessons learned from previous emergency legislation, such as the legislation passed following the Christchurch earthquakes.
“We’ve shown an ability to learn and adapt through emergencies like Covid, even though we probably were underprepared. And when our small system of government comes to the party running at full steam, it is overall pretty top notch.”
Now the greatest challenge facing our country heading into 2021, says Dr Knight, is how we reintegrate with the rest of the world.