The Epidemic Preparedness Act gives special powers to the Prime Minister when she is satisfied that the effects of an outbreak of a stated quarantinable disease (within the meaning of the Health Act 1956) are likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand (or stated parts of New Zealand) significantly.”
The irony, says Sue Grey, Co-leader of the NZ Outdoors Party and public rights lawyer, is that almost all of the disruption so far is from the government response, rather than from the virus.
How far can the government lawfully go?
This week’s further extension of Covid-19 level 4 restrictions by the NZ government has frustrated small businesses, families, patients waiting for medical treatment, outdoors people and constitutional lawyers alike.
Is our government acting lawfully, or has it over-reached? Has it acted on sound if shifting evidence, or has it been bamboozeled by media hype, and overreacted?
Is this massive social experiment in the best interests of the public of New Zealand, or has it been diverted by those with other agendas? Has the focus on “spreading the curve” and more recently on “eliminating” COVID-19 been proportionate to the original risk? Has the cure created more harm than the original risk, due to the social and economic effects, and the loss of our once cherished rights and freedoms?
Epidemic Preparedness Act
The government relies on three laws: A) The Epidemic Preparedness Act, B) Special powers in Part 3 of the Health Act; and C) the Civil Defence Emergency Management Act.
A: The Epidemic Preparedness Act
The Epidemic Preparedness Act at section 5, gives special powers to the Prime Minister: “With the agreement of the Minister of Health, the Prime Minister may, by notice in the Gazette, declare that he or she is satisfied that the effects of an outbreak of a stated quarantinable disease (within the meaning of the Health Act 1956) are likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand (or stated parts of New Zealand) significantly.”
Covid 19 was notified as a quarantinable disease on 11 March 2020. http://www.legislation.govt.nz/regulation/public/2020/0031/latest/whole.html
Just eight days later, on 18 March 2020, Covid-19 was de-classified by the UK authorities. This meant it was no longer regarded a highly infectious disease.
“Now that more is known about COVID-19, the public health bodies in the UK have reviewed the most up to date information about COVID-19 against the UK HCID criteria. They have determined that several features have now changed; in particular, more information is available about mortality rates (low overall), and there is now greater clinical awareness and a specific and sensitive laboratory test, the availability of which continues to increase.
The Advisory Committee on Dangerous Pathogens (ACDP) is also of the opinion that COVID-19 should no longer be classified as an HCID.”
The evidence is that while Covid-19 has triggered an extreme level of media interest, the death rate from the Covid, (at around 0.1%), is significantly less than the 1-10% that was first estimated.
Further, the overall death rate in Europe this season is similar to the death rate over the last five years. It appears that many deaths are being reported as deaths “from” Covid, when in other years they would be reported as heart attacks or pneumonia. The statistics confuse death “with” covid and death “from” covid.
COVID-19 has reportedly killed 14 New Zealanders over the last six weeks or so. The annual death rate in New Zealand is approximately 35,000 or close to 100 people per day. There is an average of one death from heart disease every 90 minutes (an average of 16 per day). Covid-19 is responsible for only about 0.3% of the NZ deaths in this time frame.
Most of the COVID deaths were elderly and suffering from pre-existing medical conditions. In at least one case, the family has publicly challenged Covid being reported as the cause of death, reporting their father/grandfather died at home from a heart attack, which was falsely reported as a Covid death.
An Epidemic “likely to disrupt essential government and business activity”
Curiously the legal criteria for triggering the Epidemic Preparedness Act is not the severity of a disease, but “the effects being likely to disrupt essential government and business activity”.
With most of New Zealand on level 3 or 4 lock-down for over a month and for the foreseeable future, the economy is collapsing and there is a s massive backlog for other medical treatment. There clearly has been unprecedented “significant effects on essential government and business activity.”
However, the most significant effects are not from the virus itself, but from the government’s response to the threat. Its a classic breach of the important medical principle of “Do no harm”
The criteria itself creates a self-fulfilling prophesy.
The statutory definition that triggers the Epidemic Preparedness Act could apply to any new virus faced by an over-reactive trigger-happy government.
This is bad law, which urgently must be amended to prevent a rash of future politically created “epidemics” almost inevitable.
The Ban on swimming, fishing, hunting and other Outdoor activities
With level 4 lockdown, the government is discouraging and purporting to ban swimming, fishing, surfing, kayaking, hunting and other outdoor activities.
What is its legal authority for this?
Its a very good question that I am struggling to answer.
Firstly, as a matter of common sense, how can solitary outdoors activities contribute the the spread of a virus?
The government relies on special powers for infectious diseases under s70(1) of the Health Act. These special powers provide for the Medical Officer of Health to publish an order forbidding “people to congregate in outdoors places of amusement or recreation of any stated kind….”
A critical requirement for a valid s70(1) Notice is that there is a “congregation“. This is clearly a both important and sensible, as it is the group coming together, rather than any outdoor activity that creates a risk of spreading disease.
There is no statutory power under the Health Act for the Medical Officer of Health to restrict solitary outdoor activities, or activities by a family or other group who are within the same bubble. His attempt to do so is unlawful.
Restrictions under a Civil Defence State of Emergency
The third possible law is the Civil Defence Emergency Management Act (“CDEM”). A state of emergency declared by the Prime Minister under on 25 March 2020. Each such declaration automatically lapses after 7 days, indicating a clear intent that these civil defence emergency powers be short-lived and reserved for exceptional situations. The Prime Minister’s decisions to serially roll over the Covid-declaration week after week in the absence of an epidemic, is surely open to challenge.
Further the purpose of CDEM must be to:
(a) improve and promote the sustainable management of hazards (as that term is defined in this Act) in a way that contributes to the social, economic, cultural, and environmental well-being and safety of the public and also to the protection of property; and
(b) encourage and enable communities to achieve acceptable levels of risk (as that term is defined in this Act), including, without limitation:
This requires a balanced risk assessment, with consideration of social, economic, cultural and environmental well-being, public safety and protection of property. It required acceptance of some risk.
Section 66 of CDEM specifies the criteria for declaring a national state of emergency. This requires a finding that
(a)an emergency has occurred or may occur; and
(b) the emergency is, or is likely to be, of such extent, magnitude, or severity that the civil defence emergency management necessary or desirable in respect of it is, or is likely to be, beyond the resources of the Civil Defence Emergency Management Groups whose areas may be affected by the emergency.
The stated purpose of the COVID-19 declaration is “Because of the unprecedented nature of this global pandemic, and to ensure the government has all the powers it needs to slow the spread of COVID-19 and reduce its impact”.
Currently there is no evidence of COVID-19 emergency being of such extent, magnitude or severity that it is likely to be beyond the resources of Civil Defence Emergency Groups.
Do swimming, fishing, hunting or other outdoors activities contribute to “the emergency”?
CDEM Act powers can only be used “to stop people doing activities that may contribute to the emergency“.
“The emergency” is slowing the spread of covid-19 virus. It is drawing an extremely long bow for the government to claim that a solitary outdoor recreational activity contributes to “the emergency” .
Hunting on public owned land
The government has accepted that hunting may be an important food source for families and agreed that will be allowed on privately owned land, (with landowner consent) during Stage 3 restrictions. The Minister of Conservation says however that no hunting will be permitted on “DOC” land until level 2 – “for consistency”.
It is unclear how or why DOC feels able to block public access to public land that it manages on our behalf.
DOC is established by the Conservation Act. Its functions include managing land for conservation purposes and
“6(e) to the extent that the use of any natural or historic resource for recreation or tourism is not inconsistent with its conservation, to foster the use of natural and historic resources for recreation, and to allow their use for tourism;“
It is not accepted that DOC can close public access to the land that it manages (on behalf of the public of New Zealand) for non-conservation reasons. Its decision to close public access to tramping tracks and remote locations is in my view irrational, given the considerable evidence that access to the outdoors promotes physical, mental and spiritual health and well-being.
How can these notices and assertions of the government be challenged?
People often express surprise when they learn that New Zealand has no overarching constitution like the USA. This means there are theoretically no constitutional constraints on statute laws that can be passed by the New Zealand Parliament.
The public is dependant on politicians acting in the public interest and in accordance with the election promises. There are however conventions and rules in the Cabinet Manual which impose at least some constraint on the processes Parliament must follow.
The NZ Bill of Rights Act identifies rights and freedoms protected by international treaties such as the Declaration of Human Rights. Unlike the USA Constitution, the NZ Bill of Rights Act is subservient to other Acts of Parliament. However where there is any ambiguity in a statute it must be interpreted to give effect to the protected right. Similarly, regulations and notices and other decisions under a statute must be consistent with protected rights and freedoms.
The rights and freedoms protected by the UN Charter and by the NZ Bill of Rights Act seem to have been overlooked by the government in their covid response.
Principles of Public law
Decisions by public authorities must also be made in accordance with well established public law principles. These public law constrain the power of decision makers, requiring them to act lawfully, reasonably and fairly.
How can these notices and assertions of the government be challenged?
My conclusion is that the New Zealand government has overstepped the law. The clearest example is its ban on solitary activities like swimming, tramping kayaking, fishing and hunting. However at present the government continues to assert that these activities are banned.
There are several option to restore our rigths, freedoms and lifestyles..
Decisions outside the scope of the empowering Act, which were made for an improper purpose, without taking into account all relevant considerations (or any irrelevant considerations) or which did not follow procedural requirements, can in theory be set aside by the High Court through the “judicial review” process. There are no court filing fees during lockdown, but securing access to the courts is difficult.
Another alternative for those impatient to return to their normal lives is to defence charges that may be brought by the police on the grounds that the notices are unlawful.
A third option is for public to take to the streets and protest. Mass public protests have started in the USA and Germany. It is only a matter of time before New Zealanders start to more actively reassert their rights .
A far better alternative is for the government to admit it has overstepped its powers and immediately issue corrective notices to the public and to the police. This would go some way to healing the crisis in public trust in government.
Covid-19– how serious is the threat?
The world is facing a new threat from “coronavirus”. The early reports from China were unreliable but indicated a possible death rate of around 10%. As Wuhan went into lockdown, foreigners there scrambled to return to their homes around the globe- spreading the virus to many parts of the planet.
Soon afterwards reports started of 10% or more deaths rates in North Italy, Iran and South Korea. Media hype escalated as an Pandemic was announced by WHO and reports of coronavirus deaths spread to many other countries.
New Zealand first announced border restrictions in early February, but the messaging appears to have been more effective than the reality and our borders remained leaky if not fully open. Many who were Covid positive returned to New Zealand infecting communities around the country. On 23 March the NZ government announced Stage 3 lockdown, with Stage 4 starting 48 hours later. Our lives changed dramatically.
New research indicates the threat of Covid is considerably less than was first assumed. The deaths are largely of the oldest citizens who have pre-existing medical conditions, a limited life expectancy and are susceptible to an array of infections. Whilst Italy and Spain have reported a death rate of close to 10%, the reported rate from confirmed cases in other countries such as Germany, is much less . These death rates are in most cases calculated from of those who were sick and diagnosed with Covid, ignoring the large proportion who have minor or no symptoms.
New reports from the USA indicate that a large proportion of those exposed to covid have no apparent symptoms at all and the virus is accordingly much more widely distributed and much less virulent than first assumed.
We have had expert projection and corrected projections which differ by orders of magnitude.
Effect on overall death rate
The good news is that despite the Covid hype, the 2020 overall death rates for most countries are similar to death rate trends in other years. All that has changed is the reported cause of death, with many pneumonia or coronary deaths now reported as death by Covid (often because covid was present, whether or not it was the primary cause).
Some states, such as China, claimed to have largely contained Covid within regions and then almost eliminated it from there, without it spreading to other Chinese regions.
States which have carried on business much as normal do not have significantly higher death rates than those which imposed strict lock downs.
A rapid learning curve is needed to understand what we don’t know
There is still much we do not know about COVID, including the factors which contribute to the very different death rates reported in different countries. Why do some people get an autoimmune “cytokine storm” reaction which gives them severe complications. Are there different strains of Covid? How do different medical treatments and/or cultural differences affect prognosis? How about air quality, smoke or other damage to lungs? Do recent flu vaccinations make people more susceptible to covid as some research suggests? How will seasonal effects impact on corona virus spread? Has New Zealand avoided the worst of the threat or is it still to come as our immunity and vitamin D levels decline over winter? Do face masks help or exacerbate the spread?
Is the harm definitely caused by covid, or could there be other associated infection such as Pretotella or other bacteria, or other environmental effects such as 5G which exacerbate the harm?
All we can expect is that decision makers remain open to new information and willing to adjust their strategy.
Public response to the lockdown– Shifting public emotions
People were initially stunned by the lockdown. Many tolerated the severe restrictions on their lives trusting that the government had a robust information, processes and a strategy in place. Others grieved the loss of their lifestyles and freedoms. With more COVID cases being imported than spread within New Zealand, many are now angry.
With no clear end in sight, and a sense that the goalposts keep shifting, landlocked New Zealanders are increasingly questioning our government decisions, and its single focus on a virus to the detriment of our other health considerations, our lifestyle, economy and freedoms. People are increasingly starting to ask “Where this is heading, and when will it end?”
“What has happened to our cherished kiwi lifestyle and the freedoms we used to take for granted? Has the government gone too far? I understand that many people are afraid, but surely its time to fully review the situation to ensure the response is not prolonging the problems and the “cure” is not worse than the virus.”
The recent extension of the restrictions have encouraged Sue Grey to take a closer look at the laws the government relied on. Her conclusion is that the Prime Minister and Ministry of Health have stepped beyond the law and are relying on bluff and fear to unreasonably restrict the Kiwi lifestyle.
The emergency powers in section 70 of the Health Act do not give the government power to restrict solitary outdoors activities, or family groups who are in the same bubble from enjoying the outdoors, says Sue Grey. “The special powers only prevent “congregations” in the outdoors. This important restriction has been ignored. Recreation and enjoying nature helps people relieve stress and maintain their physical, mental and spititual health and wellbeing. It also helps people put food on their tables. There is no conceivable risk of a solitary outdoors person or family bubble spreading a virus when they enjoy an outdoors activity together.”
The government appears to be aware there are on shaky legal ground. Their messaging has shifted over time to allude to powers under the Civil Defence Emergency Act (“CDEM”) as justifing restrictions on outdoors activities says Grey.
Its difficult to understand why the government believe the current situation justifed an extension of CDEM powers. As the weeks have passed there are no indications any of our systems are in crisis and cannot cope.
“At what point does the “cure” become worse that the virus”. In my view the government has given far too much emphasis to a single consideration (a viral threat), to the detriment of other important considerations. What protection is given to people’s physical and mental well-being, the importance of treat other medical conditions, connecting our elderly and those who live alone with the community and nature, putting food on tables, helping families manage the stress of job losses and economic uncertainty. What thought has been given to protecting the NZ way of life and our values. Parliament and the courts and most of government are in partial closedown and are currently very selective about what they attend to. Many public authorities are citing COVID to justify extension to information requests, and hearing dates. With the lack of transparency and shifting goalposts, people are starting to lose trust in government.
The Crown have become bullies
People have become afraid of challenging authority after reports of police officers warning and in some cases arresting and prosecuting swimmers, fishers, surfers and hunters. People are also confused by slick government messaging that arbitrary and strict rules are necessary for the good of all.
The government messaging that communities should “dob in” those who do not comply, is an outrageous breach of kiwi culture and undermines our once brave and resilient “No 8 wire- we can do anything” approach to life. It is particularly concerning that the government is relying on fear and peer pressure to promote a message that is not supported by the law. This is bullying from the highest level.
What must be done?
The government must recognise the limits on its powers, admit it has overstepped the law and take corrective action.
All abuses of state power must be identified and corrected, and freedoms restored whenever that is possible. The government was elected to represent the public. They must always remember that. Their actions must always be lawful, reasonable and fair. They must take into account all relevant considerations- not just those which suit their objectives. They must be transparent, and must always act in the best interest of the people of New Zealand, rather than by driven by overseas or other agendas. The important rights and freedoms protected by the NZ Bill of Rights Act must be cherished and actively protected.
If the police proceed to prosecute a swimmer, fisher or kayaker, it may be possible to argue that the Health Act Notice, State of National Emergency and/or part of the Level 4 restrictions are unlawful, so no offence has been committed.
One way to help restore balance and public confidence this would be for the government to pull back from our lives,immediately restore freedoms to individuals and communities to encourage normal activities which don’t risk spreading COVID. Its time to let New Zealanders get Outdoors and enjoy the end of the glorious autumn weather, and the joy and inspiration that comes from interacting with nature.
Rather than the police warning, prosecuting and fining on people for innocuous activities, and the government encouraging people to dob in their neighbours, why not just let us get back on with our lives and access public land and wild foods to supplement our meals?
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