Graeme Edgeler: On being sure of your legal footing

Graeme Edgeler: On being sure of your legal footing

A governmental response to an emergency like the COVID-19 pandemic needs flexibility, but it is also important that the rule of law is maintained, and that when public officers purport to exercise public powers, they are sure of their ability to do so. From the perspective of someone outside government, this has not always been the case in the government’s response to the current epidemic.

New Zealand’s four-level COVID-19 alert system is a very helpful public guide. It was sensible of the Government to create it as a means of signalling to the public the different levels of care needed in public interactions, and in signalling the possibility that more drastic distancing measures may be required.

But as a matter of law, “Level 4 restrictions” are meaningless. The alert system is not a law, and it does not have any legal force. What has legal force includes: (1) the epidemic notice; (2) the declaration of a national emergency; and (3) legislation passed by Parliament allowing the exercise of both ordinary and extraordinary powers, including the making of regulations.

But even when extraordinary powers may be available, they must actually be used to have legal effect. Victoria University legal academic Dr Dean Knight has noted the benefit in this sort of government nudge, the government giving an indication of how people should behave, without hard law to back it up. He’s right. That can be both important and useful, but also important is that the government is upfront about what it is doing.

New Zealand is now in a state of emergency, and extraordinary powers under the Civil Defence Emergency Management Act are available to Police. New Zealand is affected by an epidemic to such an extent that an epidemic notice is in force, giving medical officers of health extraordinary powers under the Health Act, and the government extraordinary powers under the Epidemic Preparedness Act.

These may be described and included in what the Government has called level 4 restrictions, but this are where the legal powers reside (along with, of course, all the ordinary laws that apply all the time).

But even where extraordinary powers are available, it is important that a government purporting to exercise them, actually does so.

Earlier in the Government’s response, when New Zealand was at “alert level 2”, none of the extraordinary powers had been invoked.

The Government announced that it was cancelling large events, but it actually didn’t. There were Health Act powers that might have allowed a medical officer of health to do this, but there was no public indication that a Minister had authorised a medical officer to have these powers, and no public indication that a medical officer of health ever tried to use them.

And while the nudge can be helpful, where the Government asserts that it has powers it either doesn’t have, or cannot invoke, there can be major rule of law concerns.

Lawyers were dealing with questions from clients: ‘I have a large contract to hold an event on my premises, how does the government’s decision to cancel large events effect this?’. The legal answer at the time was: the government has not cancelled the event. It just said it has. Accordingly, you may still be contractually obliged to allow it to proceed.

I got a series of questions from one journalist, and wrote an answer to one, about Destiny Church, whose leadership was saying they would defy what was then the government ban on holding indoor gatherings of more than 100 people, and were according to the Government, risking arrest. In the end, I decided it was probably better that my answer wasn’t published:

There do not appear to by any assembly rules that Destiny Church would breach if it held a service with more than 100 parishioners. The decision to forbid the use of unsanitary premises for some purposes (for example, for a gathering of more than 100 people) is a decision that can be made by a medical officer of health if one of three things has happened: (1) there is state of emergency; (2) there is an epidemic notice in force; or (3) if authorised to do so by the Minister of Health, There has been no public indication that any of these has happened, although option 3 would not necessarily be required to be made public.

While there have been public statements to the effect that the Government has cancelled large indoor events and mass gatherings: (1) it does not currently have the power to do this (only a medical officer of health may); and (2) the publicly available information indicates it hasn’t actually tried to invoke these powers. Instead, the information the Government has placed on its Covid-19 website indicates that the Government’s position is advisory only: “The Government has advised that public events or mass gatherings … should be cancelled”. The information on the Ministry of Health website is slightly more strident, with a heading “Why are we cancelling mass gatherings”, but only has statements noting that such events “… should be cancelled” and “events … will be cancelled”. I’m sure they will let us know when this actually occurs, but it does not appear to have happened yet. Accordingly, I can see no legal impediment to Destiny Church holding services this weekend unless the Government’s statement its Covid-19 website “has everything you need to know about COVID-19 in one place” is false.

With the epidemic notice issued, and a state of emergency in force more (but not all) of these questions have simple legal answers.

But even as the government’s response is now on a firmer legal footing, there are still limits to its powers, and examples where the wider government appears to have gone beyond what is permitted. The obvious limit that remains on government power is the New Zealand Bill of Rights Act. The broad powers that the government has under a state of emergency, and during an epidemic are discretionary powers: Parliament has permitted the government to do a lot, but it has required it to do comparatively little. And the basic principle is that government discretion must be exercised consistently with the New Zealand of Rights Act. Now, few of the rights in the Bill of Rights Act are absolute (some are), and those rights can be subjected to reasonable limitations, if the limitations are prescribed by law, and can be demonstrably justified in a free and democratic society.

What extraordinary powers govern public actions during this state of emergency? The most concerning, from a rule of law perspective, are those granted to Civil Defence Controllers, and Police, under the Civil Defence Emergency Management Act. Section 91 is a broad power allowing individual Police officers to direct people to stop doing things that the officers consider may contribute to the emergency. I and, I think others, had assumed that this power was what was imposing the lockdown, that general instructions had been given by the Police Commissioner to frontline constables, and that these unpublished orders were guiding decisions around what Police could direct others to do.

In the last week, however, the Director-General of Health, acting as a medical officer of health for each health district, issued an order under section 70(1)(f) of the Health Act, purporting to set out the limits that apply during the lock-down period. I say “purported” because it is not clear that the 70(1)(f) power can be exercised in this way. On its face, it appears to be a power that gives medical officers of health the authority to quarantine or isolate particular individuals or places, not everyone and everything. It does not, for example, have the type of publication requirement that a clearly general power in section 70(1)(m) provides for. That power, which was used to close businesses a week earlier than that, is described in a different form, and requires that the power be exercised “by order published in a newspaper circulating in the health district or by announcement broadcast by a television channel or radio station that can be received by most households in the health district.” That is what general powers look like, it’s not a notice tacked to the door of the building you are closing, nor a form directly handed to someone presenting themselves at the border.

The extraordinary powers available to the government come in multiple forms. The best form, from a rule of law perspective, are epidemic management notices.

Epidemic management notices make available for temporary use pre-existing additional powers that were adopted by Parliament using ordinary legislative processed, while updating various laws.

When updating legislation, the government and Parliament have thought about what might be needed in an epidemic, and placed them in ordinary statutes to be activated, if necessary, in an epidemic. These are sections of regular legislation, that sit there, unused. If there is an epidemic, and if there is an epidemic notice is in force, the powers can be activated by making epidemic management notices. A couple of examples will suffice: an epidemic management notice in relation to the Immigration Act permits temporary visas (such as work visas, and visitor visas) to be automatically extended; an epidemic management notice in relation to the Social Security Act permits the rules around the granting of emergency benefits to be relaxed, and such benefits made available to people (such as visitors stuck in the country unexpectedly) who would not ordinarily qualify.

Parliament can also pass urgent laws. This happened after the epidemic notice was issued, and the state of emergency declared, with Parliament making changes to several laws. Two examples here as well: first, Parliament made changes to the Residential Tenancies Act prohibiting increases in residential rent, and making eviction much more difficult. A second change was to the Local Government (Official Information and Meetings) Act relaxes quorum requirements applying to local government meetings (previously, while councillors could attend via electronic means, if they did, they didn’t count toward quorum requirements), and changing the rules around public attendance at meetings (there were limited powers to close meetings to the public, which didn’t include public safety, and the rules around the public right to attend overrode any other contrary law, including seemingly the Health Act). These are possibly issues that could be dealt with by epidemic management notices, and it may be that our experiences over the coming months, lead to Government departments adding “are there any epidemic management processes that could be included in this law” into the procedure for updating old legislation.

But there are also laws that haven’t been updated, and which Parliament hasn’t urgently amended, and which run the risk of the government (or parts of it) getting itself into trouble down the line. While there are immediate modification orders potentially available under the Epidemic Preparedness Act, there has been a welcome reluctance to use them, with only one made so far.

I have three examples where I am concerned that despite the extraordinary powers available to the Government, there is still a concern that the law is not being followed.

First, upon the announcement of level four restrictions, the Chief Executive of the Department of Corrections wrote to the Law Society and others outlining new restrictions on visits to prisons. Some of this is likely lawful (including the bits around visits by lawyers, and prisoners’ families), but the letter also indicated that Corrections would not permit statutory visitors to visit prisons. This is not something Corrections has the power to stop. Statutory visitors include the Ombudsman, Human Rights Commissioners, and MPs, among others, have a particular role in ensuring that abuse does not happen in prison. Human Rights Lawyer Dr Tony Ellis was so concerned by this letter that he wrote to the Epidemic Response Committee, and a follow-up letter, noting changes to the announcement, followed a few days later.

A second example arises out of the Government’s announcement that supermarkets will be permitted to open on Easter Sunday this year, but not on Good Friday. The Government could probably provide for this in an immediate modification notice under the Epidemic Preparedness Act (it’s at least arguable that the restriction on trading over Easter is impracticable in the present circumstances), but the Government has not done this. Instead, the Minister of Workplace Relations and Safety issued a press release noting that “The Government has asked the Labour Inspectorate not to penalise supermarkets that remain open”, and that “The present circumstances are such that supermarkets will meet the Shop Trading Hours Act 1990 exemption this year. Under current law, supermarkets will be permitted to open – as the circumstances are likely that they will meet the s4(1)(a) exemption this year, even though they don’t in other years”.

The former quote is concerning. The government appears to be actively encouraging people to break the law with an indication they just won’t be prosecuted. There are ways to do this lawfully (the Solicitor-General could issue an immunity), but this hasn’t happened.

The latter quote simply cannot be true. Even if the argument that this year is different is accepted it cannot apply differently on Good Friday and Easter Sunday: if a supermarket is the type of low throughput retailer permitted to open, then the same argument applies on both days, and the government’s announcement is dishonest. Moreover, I don’t accept that from the perspective of section 4(1)(a) of the Shop Hours Trading Act 1990, this year is different. If supermarkets meet the test in section 4(1)(a) (largely based on size, and market, and intended to allow dairies to open), then they will meet the test every year.

But as a lawyer, the more concerning example comes not from the executive, but from the judiciary. Upon the announcement of level 4 restrictions (which I note again, is not something having the force of law), the Chief Justice announced that while people with a need to attend courts (like lawyers, and news media) continue to do so, they would be closed to the general public during criminal proceedings. While it may be within the power of the Chief Justice, or a head of bench, to close a court building, the power to close a criminal proceeding to the public is a power that belongs to a court. Given the laws that apply, closing a court to the public is something done by a judge in a particular case. it is not something that the Chief Justice can lawfully do in general, and certainly not in a press release. This may be a problem with the law. It might be a good idea to allow a general power to the Chief Justice, or a head of bench, in this sort of emergency (perhaps applying for such a power to be exercised after an epidemic management notice brings it into force), but like the change to the quorum requirements that were changed around local government meetings, it would need a law change, and there hasn’t been one.

The rule of law is flexible, but it has a number of simply stated requirements, Dean Knight spoke to Radio New Zealand about the legal basis for the lockdown, and noted that people should expect “a clear notice of obligations and consequences for non-compliance” and that “The rule of law has certain expectations about rule: they should be publicly accessible; they should be clear; they should be non-contradictory; they should be stable and there should be … alignment between the rules that are on the books and the rules that are applied in practice.”

The response so far has been good, but imperfect. That is to be expected, but as the emergency continues, our expectations should increase. The Epidemic Response Committee has a big part to play, and should expand its concerns beyond the immediate questions around the lockdown to less public aspects of the government’s response, and the Government could step up as well, perhaps by adopting an Epidemic Preparedness (Shop Trading Hours Act 1990) Immediate Modification Order some time before Sunday.

Graeme Edgeler is a Wellington barrister, with a professional interest in constitutional and electoral law


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