4 Apr 2021

Making rules in the name of Covid-19

From The House , 7:39 am on 4 April 2021

Telling five million people they have to wear masks on busses, get a Covid-19 test if they work at the border, or have to quarantine on arrival in New Zealand is a major power move. 

A bus passenger wears a mask during level 2 in Wellington, 15 February 20201.

Photo: RNZ / Samuel Rillstone

These rules New Zealanders have adjusted to as the government responds to the spread of Covid-19 are seemingly made without question. 

But it turns out there are some people at Parliament whose job it is to make sure the minister ordering New Zealanders around doesn’t go mad with power.

First, who makes the rules?

The Minister for Covid-19 Response

No caption

Photo: RNZ / Samuel Rillstone

A new role was created in November after the 2020 general election appointing Chris Hipkins as the Minister for Covid-19 Response. 

The job is overseeing the government’s response to Covid-19 which Hipkins said cuts across a range of government activities. 

“Obviously the health sector carries a disproportionate share of that burden in the sense that they’re doing the testing, the vaccinating and providing a lot of the policy advice underpinning our decisions around Covid-19.

“But then there’s also our managed isolation facilities run by the Ministry of Business Innovation and Employment. We’ve got our border which is run by customs but also has other government agencies involved there, we’ve got the Police and the Defence Forces involved in our response too.

“My portfolio really is about the response side to Covid-19, it’s not about the broader recovery and the economic issues.” 

Rule making

The rules around physical distancing, mask-wearing, and isolation are officially issued as an order. 

“When we escalate alert levels, we move to Covid-19 alert level 2 or 3, I will sign an order which specifies what all of the rules are and who they apply to,” Hipkins said. 

In February Auckland was moved to alert level 3 following two cases of community transmission that could not be directly linked to earlier cases. The rest of the country moved to alert level 2. 

“My order will say who is in level 3 and who is not, what are they and aren’t they allowed to do at level 3.”

Hipkins has also used orders to set out the mandatory testing requirements for those working at the border and managed isolation facilities and restrictions for flights coming into New Zealand. 

“Under the Covid-19 Public Health Response Act 2020, I as the responsible minister have been given quite a degree of authority to be able to make rules and set requirements around things like testing, border restrictions and so on,” Hipkins said.

Before this ministerial portfolio was created the rules were mostly made by the Minister of Health but now the power sits largely with the minister. Another minister can sign an order on his behalf if needed. 

The Director-General of Health also has some ability to make orders but Hipkins said this authority is more about regional and localised responses. 

Keeping watch on the power

These orders have a huge impact on people’s lives so within the Covid-19 Public Health Response Act 2020 there is a requirement for the minister to consult the Prime Minister, the Minister of Justice and the Minister of Health.

“Before I can sign an order I have to get it drafted and give them a copy so they have the opportunity to provide feedback,” Hipkins said. 

“The Minister of Justice, in particular, has regularly been able to provide feedback on Bill of Rights type issues because some of the things we’re doing do infringe on people’s rights. If you’re saying you have to be tested or you can’t do something then that’s an infringement on people’s rights.”

Hipkins said limiting rights has to be justified as necessary to protect people’s health. 

“I have to take the advice of the Director-General of Health and that’s really important because whatever I’m doing under the Act, it has to be because of the public health risk. Whilst it’s a very broad power that I have been given it’s not unlimited, it still has to relate to our Covid-19 response.”

The orders can be made very quickly and without the usual parliamentary scrutiny but they must be approved by the MPs in the House of Representatives by a certain date or they expire. 

“I have the ability to introduce some of these with as little as a few hours notice if the risk justified that so there does still need to be parliamentary scrutiny.”

A signed order goes to the Regulations Review Committee (a small group of cross-party MPs) which writes a report back to the House of Representatives (all the MPs) which then has to confirm the order. If the House doesn’t confirm the order then it expires and no longer applies. 

“That’s an important safeguard because it stops me from being able to abuse that process,” Hipkins said.

“Not having the orders confirmed by the House means it’s that little bit of extra check and balance to make sure that the powers I’ve been given are being used appropriately.”

Reviewing the regulations

National MP Chris Penk listening to evidence in Select Committee

National MP Chris Penk listening to evidence in Select Committee Photo: VNP / Phil Smith

Keeping an eye on all the orders issued by the Minister for Covid-19 response is the Regulations Review select committee. 

It has two National MPs, three Labour MPs, and one MP each from the ACT Party and the Green Party and is chaired by National MP Chris Penk.

“It’s a body that does pretty much what it sounds like, it reviews regulations,” Penk said. 

“They can be a different number of instruments I guess you’d call them, notices, orders, they don’t necessarily have the name ‘regulations’ but what they’ve got in common is the fact that they’re made under the authority of statues that have been made by the House so sometimes we call it secondary legislation for that reason.”

Some of the work the Committee does is more familiar with the majority of New Zealanders. 

“You’d have to have been living under a rock not to be aware of Covid-19 orders as well as the pandemic itself and of course there’s the public health element that requires certain things of the population,” Penk said. 

It’s important that the directions and orders the government is making are clear and reasonable for people to comply with, Penk said. 

“We generally look at them after the fact,” he said. 

“But to give the government credit on this when we’ve gone back and said ‘there may be a lack of clarity or the guidelines weren’t published in a clear way’ they’ve generally responded and taken that on board in terms of the way they do it next time.”

Penk said it’s a really serious matter if the orders aren’t taken note of but it’s also important that people can understand them. 

“It sounds pretty nitty-gritty but [we consider] where are these things published? Is there a central website that’s got available the different orders then that goes to them being accessible. Of course, we can’t expect people to follow laws that they don’t have the opportunity to reach,” Penk said.

Language barriers and whether or not orders are able to be accessed by communities where English isn’t the first language hasn’t been discussed officially by the Committee but Penk said it’s a topic that could come up and recommendations could be made about translation services.  

“We had to kick around whether that was reasonable and how we would deal with people who weren’t observing that even though it might not be clear in individual circumstances whether or not they were being ‘reasonable,’” he said. 

The committee can make recommendations but there’s no requirement for the government to do what they say. 

“We’re a select committee of the Parliament and not the government,” he said. 

“I think it’s appropriate we’ve got a certain amount of influence rather than power.”

Penk said there’s policy that interacts with the law when a government does not take on board recommendations made in good faith. 

“That would be to their detriment as well as to the people of New Zealand but in my experience in the relatively short time I’ve been chairing the committee there has been that good engagement.”

Reviewing these decisions which do have significant impacts on people’s freedoms are important, Penk said. 

“The seriousness of the rights involved if you think of freedom of association, freedom of movement, these are some of the most serious liberties that we have in a democracy and we cherish them greatly and it’s only lightly that we should depart from them.

“Having said that, this is a scenario in which it’s been as justifiable as ever that these orders and notices get made.”

The committee does not generally call for public submissions on orders because the time frame requires a tight turnaround but people can always contact the committee at any point with their views. 

“There’s a more general role of the committee which applies to these as much as any other rule that affects people lives which is that any member of the public can write to the Regulations Review Committee and say, ‘we don’t think these regulations are consistent with the purpose of the main Act from which they flow, or the power’s been used in an unusual or unexpected way, or they breach a person’s rights unduly’ and so on,” Penk said. 

“So there are opportunities all the time and not just in relation to Covid orders for someone to take the initiative, be in touch with us and say ‘have a look at this’ and we’ll always take that seriously.”

Details on the Regulations Review Committee can be found here.