New Zealand government abusing lockdown powers

NZ Herald | 8 May 2020

Left unchecked, how long before kindly social democrats morph into enthusiastic authoritarians? Jacinda Ardern and Grant Robertson suggest it’s about seven weeks.

Let’s not be partisan about this. Simon Bridges might have taken only six weeks. Bill English might have taken eight. But make no mistake, the Government has now crossed the line from using its lockdown powers to maintain public health, to cynically promoting its electoral interests.

When New Zealanders are asked how they want to check their leaders, the majority opt to maintain our “fastest lawmakers in the west” Parliament, but with the chance to vote it out after three years.

Notoriously, ministers can agree to something on Monday, bully their party caucuses into supporting it on Tuesday, and ram it through Parliament by the end of the week.

The courts are mostly powerless to interfere. Legislation ordering the slaughter of all blue-eyed babies is the law-essay exception; an Act designed to extend the prison sentence of a single identifiable person a real one.

Consequently, New Zealand depends more than most countries on respect for conventions and a rambunctious public sphere.

Parliamentary question time is criticised for kindergarten antics, but most ministers are genuinely afraid of it. When questions are lodged, bureaucrats rush around thoroughly investigating the matter before the minister has to front up, itself acting as a powerful check.

Before some reporters decided prime ministerial press conferences were mainly entertainment, they served a similar role. Jim Bolger and Helen Clark were regularly treated mercilessly, rightly so for prime ministers radically reshaping the economy or banning pamphlets criticising the Government in election year.

Weekly interviews by the likes of Newstalk ZB’s Mike Hosking are additional checks on prime ministerial power.

These informal processes put pressure on the Government to go beyond the mere letter of the law, such as when it decides to waive legal privilege and release advice from the Crown Law Office, as Ardern did during the Wally Haumaha affair and as Attorneys-General have done since 2000 around Bill of Rights Act certifications.

Beyond these high-profile checks are written questions, select committee hearings and the Official Information Act. Even if 99 out of 100 are purely fishing expeditions, the hundredth will reveal something important that someone in the Beehive or bureaucracy wanted kept secret.

Ideally, when overseeing this activity, Parliament’s Speaker is at least a bit disgruntled with their own party, so they require ministers to provide sensible answers and — like a cricket umpire — give the Opposition the benefit of the doubt.

On this measure, some regard Lockwood Smith as the best Speaker in recent decades and Margaret Wilson the worst. Trevor Mallard has brutally admonished Cabinet clowns Phil Twyford and David Clark for not taking the questions system seriously.

When legislation is proposed, governments prepare Regulatory Impact Statements, (RISs), Bill of Rights reports and advise whether it requires an appropriation or affects the Treaty of Waitangi. There are usually three debates over a bill plus public submissions and select committee hearings.

None of this is particularly onerous. Unless coalition politics gets in the way, New Zealand pretty much allows governments to do whatever they like.

Even while following the usual procedures, Ardern passed her 2019 gun-control legislation in less than a month. Legislation can still be rammed through under urgency in a day or two, even when filibustered by an Opposition. With the Opposition’s support, it can be passed in minutes.

The Covid-19 crisis suspended many of these checks on Ardern’s powers. Even where they remain, emergency regulations mean they don’t pack their usual punch. Question time isn’t as intimidating. At press conferences, the Prime Minister has answered questions about the Easter Bunny but not about how many people have killed themselves since the lockdown began.

The main check on the Government right now is the Epidemic Response Committee, chaired by Bridges. It works well but is not a substitute for the usual robust scrutiny across the board.

Legal scholars, including from the political left, now fear the whole lockdown may have been illegal. The Court of Appeal hints it might agree.

The Prime Minister pays no heed. Despite the Haumaha and Bill of Rights Act precedents, Ardern refuses to release the legal advice on which she based her lockdown decisions, creating all the appearance that she knew the Government was acting illegally when it confined us to our homes.

Given the Government’s stonewalling about the legal basis for the huge powers it has asserted, Bridges’ committee has been forced to summons Solicitor-General Una Jagose in a last-ditch attempt to find out what the Prime Minister was told about the legality of her actions.

Ardern and Attorney-General David Parker should spare Jagose that indignity by pre-emptively waiving the legal privilege over the advice. As Attorney-General, Parker is required to act in the interests of the rule of law rather than as a member of his political party.

Meanwhile, the Government has decided it shouldn’t have to prepare RISs for its proposed legislation. The Ministry of Health is automatically turning down all Official Information requests. Health providers have been informed of a make-believe principle called “the passage of time”, whereby the Government need not respect written commitments given just a month ago.

As Environment Minister, Parker wants to streamline the Resource Management Act and Immigration Minister Iain Lees-Galloway the rules around visas. Their proposals make sense but are hardly so urgent that they shouldn’t receive the usual scrutiny. Absent that scrutiny, just last week Parliament accidentally legislated for a multibillion-dollar loans scheme.

The Government has also ensured there will be much less immediate scrutiny of its Budget on Thursday, with the usual Treasury analysts, bank economists, lobby groups, business reporters and union leaders excluded from Robertson’s lockup, despite the country likely to be in level 2.

Government cheerleaders say none of this matters; that Ardern being subject to the rule of law and public scrutiny is less important than saving lives. Shame on them.

First, there is no reason Ardern couldn’t have done everything she has, but maintained the rule of law.

Second, a major reason the lockdown has succeeded is because New Zealanders respect the rule of law and have assumed she does too.

And, third, the principle that prime ministers are subject to the rule of law is in fact a norm so important that many more people have sacrificed their lives in its defence than could ever be at risk of dying from Covid-19.

– Matthew Hooton is an Auckland-based PR consultant and lobbyist.