Human Rights Commissioner has 'serious concerns' around Level 2 enforcement law

Concern is mounting as a proposed law is rushed through Parliament under urgency to establish the legal framework for Alert Level 2 enforcement. 

Chief Human Rights Commissioner Paul Hunt.

Chief Human Rights Commissioner Paul Hunt said the Government had not allowed enough time "for careful public democratic consideration of this Level 2 legislation". 

"The new legislation, if passed in its current state, will result in sweeping police powers unseen in this country for many years," he said.

"Given that the legislation encroaches on the civil liberties of New Zealanders we have serious concerns about whether the powers are proportionate.

"There has been no input from ordinary New Zealanders which is deeply regrettable. This is a great failure of our democratic process."

The Covid-19 Public Health Response Bill introduced by Attorney-General David Parker was intended to be enacted today before Level 2 began. However, it did not make its way fully through Parliament yesterday.

During the first reading, Mr Parker said the bill would give police clearer powers to enforce orders, "consistent with the graduated approach police have taken to enforcement to date".

"This bill creates a power to enter premises, a power to direct people, to stop activities that are in breach of the order, a power to close roads and public places, and a power to close businesses operating in breach of the rules for 24 hours."

Māori Party co-leader Debbie Ngarewa-Packer said she was "gravely concerned about the bill’s provisions that propose to increase police powers including the suspension of the search warranting process".

"This is fundamentally undemocratic and a clear case of state overreach."

Mrs Ngarewa-Packer said giving the state "unlimited powers to enter marae is simply unconscionable". 

"The right of tangata whenua to have authority over and remain safe within our own homes and marae is not only a fundamental principle of the New Zealand democracy, it also a right premised in Te Tiriti o Waitangi. 

"Nothing justifies continual and unchecked breaches of the Te Tiriti, not even the pandemic response."

Read the proposed law here.  

National opposed the first two readings of the bill, with National leader Simon Bridges saying the powers given in the bill "are in a way that we've never seen in a non-wartime situation, I dare say, in this country, with very few checks and balances, if any". 

"I'm pleased to see New Zealand open up more. I want to see us save jobs. But I say: trust New Zealanders - Prime Minister and David Parker, you're not doing that with this bill."

Waikato University law professor Alexander Gillespie said the bill dealt with ambiguities that previously existed in the rules around Covid-19 from the existing Health Act.

"Most of what is proposed is just refinements on what already exists - in an ocean of vast powers in times of infectious diseases."

He said the changes would mean there would no longer be a debate during emergencies or transitions that the entire country can get locked down, specific businesses can be told to shut, and roadblocks must be authorised. 

"The government is building them in now, I assume, in case there is another spike in Covid and the country has to be put back into either national, or local, lockdowns."

Earlier, Mr Parker said the Government believed most of New Zealand wants to "do the right thing", however, "the regulatory backup provided by the new law allows us to address behaviour at Alert Level 2 that is particularly harmful to the public health objective, and to demonstrate to those who are complying voluntarily that non-compliance will not be tolerated". 

"I reiterate there has been no gap in the legal underpinning or in the enforcement powers under the notices that have been issued under Level 3 and Level 4. This bill does not retrospectively change them."

Breaking the rules could land a $4000 fine or up to six months in prison. 

On April 2, during the lockdown, MPs were told by professor John Hopkins the law to enforce the lockdown was "problematic" as it relied heavily on discretion by police.

He said this was not sustainable - pointing to the example of mixed messaging at the beginning of the lockdown causing confusion for many Kiwis.

Dr Hopkins suggested the guidelines given to police should be released to the public, or a set of rules should be publicised "that are justifiable on the basis of the evidence, legitimate in the eyes of the public, and most importantly clear and open to all".

Those guidelines were released by police two days later.