Despite some decrying a “constitutional disgrace”, the Government’s top legal officer says its fast-tracked approach to the new Covid vaccination regime was essential
Attorney-General David Parker has delivered an unapologetic defence of the rushed lawmaking process for the new Covid-19 ‘traffic light’ system, saying the Government could not have gone any faster to allow for some public consultation.
The Covid-19 Response (Vaccinations) Legislation Bill, which established the Covid-19 protection framework and the vaccine certificate system, was introduced and passed into law in less than 24 hours last week so it could be in place for Auckland’s reopening on December 3.
Amnesty International, the Human Rights Commission and Law Society were among organisations to raise concerns about the haste of the process and lack of consultation.
Providing advice on the law’s compliance with the Bill of Rights Act, Ministry of Justice officials noted they had not received a final version of the bill in breach of Cabinet Office guidance, while Speaker Trevor Mallard (himself a Labour MP) offered some criticism of the Government’s approach shortly before the bill’s third reading.
“Urgency of this type used to be common. It isn’t any more, for good reason; it resulted in bad law.”
But Parker has spoken to the Centre for Public Law at an event hosted by Victoria University of Wellington associate law professor Dr Dean Knight – who described the legislative process as “a constitutional disgrace” .
The minister replied that the Government had signalled in advance its plans for the traffic light system and vaccine certificates, while ministerial orders around the certificates would receive the same constitutional protections as from the original Covid-19 Public Health Response Act.
“When the country faces a significant crisis – be it war, natural disaster or in the current case a pandemic – the Government does need to move quickly,” he said.
“When legislation is required at pace, urgency throughout the policy and law making process is essential, in the public good.
“There is huge complexity under the hood, and in some ways legislation is the last output when all of the complex practicalities and policy issues have been resolved.”
“We have got baked in so many Bill of Rights Act protections into the empowering legislation…we’ve seen those protections being activated through challenges in the courts and in most of these cases, we’ve prevailed as a Government.”
– David Parker, Attorney-General
Parker suggested fraying social licence for the Auckland lockdown had also been a factor in the fast-tracked process, noting “society’s need to urgently adopt new rules in substitution for existing lockdown restrictions”.
“This involves political as well as legal judgements, which include maintaining the necessary social consensus which every day of a prolonged lockdown puts at risk.”
Speaking about the constitutional implications of treated vaccinated people from those who were unvaccinated in some settings, Parker said the Government was aware of the infringement on people’s rights but believed it was a fair limitation.
“Taken too far, collective rights are used by communist, fascist, or theocratic regimes to suppress minorities and individual liberties.
“Conversely, extreme use of individual liberties ‘trumping’ community rights beget unjust outcomes too.
“For now, the only way we can protect the public in the Covid environment without lengthy lockdowns curtailing many liberties is through higher vaccination rates.”
He believed all New Zealanders eligible for the vaccine had been given a fair opportunity to consider whether they wished to receive it, while “people who choose to be unvaccinated do not always have free choice of employment”.
Speaking to media afterwards, Parker said he “obviously disagree[d]” with Knight’s description of the bill as a constitutional disgrace.
“We have got baked in so many Bill of Rights Act protections into the empowering legislation and last week’s amendment nested under all of those protections. We’ve seen those protections being activated through challenges in the courts and in most of these cases, we’ve prevailed as a Government.”
Since the Delta outbreak in August, there had been “remarkable haste” in the redesigning of MIQ, community care and other systems and protocols, all of which needed to be completed before the bill was introduced to Parliament.
“If we could have done it a week earlier, we would have…there’s been no delay in any stage of the process here.”
Parker’s defence ‘probably unconvincing’
Reflecting on Parker’s speech, Knight told Newsroom the Attorney-General deserved credit for “fronting up and giving a full throttled justification of the measures taken” for the new traffic light system.
“We’ve always had a general sense of the utilitarian calculus — and the crucial balance between community good and individual burden — that has underpinned the Government’s strategy and response,” Knight said.
“But it’s heartening to hear that vividly spelt out by the Attorney-General, especially because of his important rights-guardian role in the policy and law-making processes.”
His remarks had offered greater clarity about the Government’s view on how the ‘justified limits’ clause of the Bill of Rights Act would play out in the next, “vaccine-conditioned” stage of the pandemic.
“While there may be rights, including the right to refuse medical treatment, that are implicated by the incoming regime, the Government is extremely confident that the legal regime and health orders are justified and rights-consistent.”
“Many folk would regard the move from alert level restrictions to vax-conditioned traffic lights as a much more significant segue — and something deserving of special attention by Parliament and engagement with the community given the different types of human rights implications.”
– Prof Dean Knight, Te Herenga Waka Victoria University of Wellington
However, Knight described Parker’s defence of the rushed process for the vaccination legislation as “probably unconvincing”, with the Attorney-General seeming to suggest the amendment enabling the traffic light system was not particularly dramatic, and that there were enough checks and balances preserved from the pre-existing Covid regime.
“In other words, we got a sense that the existing powers passed in the middle of last year were probably broad enough to support the vax-conditioned regime.
“That’s surprising, as I think many folk would regard the move from alert level restrictions to vax-conditioned traffic lights as a much more significant segue – and something deserving of special attention by Parliament and engagement with the community given the different types of human rights implications.”
Knight said Parker had also offered a nod to “the unseen heavy lifting of officials and others” to set up the complex new system, although the legislation itself had been relatively bare.
“Neither of these points really cut the mustard in my view in terms of a rushed process without decent public engagement – but we did get a fair theory of why the Government pushed ahead regardless.”