Emergency powers and human rights 

We’re in a state of national emergency and it’s having a dramatic effect on how we live our lives.

I simply want to highlight a number of human rights issues that have arisen as a result of the lockdown. And I’d like to flag a number of my concerns about possible long-term human rights implications, after the pandemic is over.

‘Our civil liberties have been taken away’, wrote one commentator. ‘Our lifelong freedoms’ have gone ‘out the window’, wrote another. We ‘trust that it’s strictly temporary’, she continued. We hope, indeed.

A business commentator had a different angle. The ‘level of trust (by business) in the Government … has extended to accepting significant erosions of civil liberties as an acceptable price’ for generous government aid. If so, I find that troubling.

Just what are these ‘civil liberties’, or as others prefer to call them ‘lifelong freedoms’? Will their loss be temporary, or will they be never the same again?

These liberties are usually linked back to the writings of the pre-eminent Victorian constitutional scholar, Lord Dicey. They include freedom from arbitrary interference with one’s liberty, freedom of speech, and freedom of peaceful assembly.

Rather than talk of ‘civil liberties’ or ‘lifelong freedoms’, along with most NZ legal commentators, I call them human rights. A number that are relevant to the pandemic may be characterised as economic, social, or cultural rights. Others are civil rights (for example the right to freedom of movement).

During the lockdown, most people have not been allowed to work in their workplaces. Their ‘right to work’ as employees, contractors, sole traders, is being denied.

Even more are struggling to make ends meet, and that struggle is likely to get worse, much worse, before it gets better. Their right ‘to an adequate standard of living’ is not being met. Surely this is the time to replace the less than adequate unemployment benefit (despite the recent top-up) with a living wage benefit for all unable to work.

Trumping (to use an unfortunate expression) all other human rights has been the right ‘to the attainment of the highest possible attainment of physical and mental health’.

Attainment of this right is reflected in the philosophy underpinning the Health Act and all the statutory instruments issued under it (the Health Act [level 4 lockdown] Order issued by the Director-General of Health on April 3). Quite rightly, it’s at the forefront of the government’s response to the pandemic.

These rights are all recognised in the UN International Covenant on Economic, Social and Cultural Rights 1966, which NZ became a party to, way back in 1978. These rights, however, are not directly enforceable under NZ law. All that our government is obligated to do is to report periodically to the UN Human Rights Council on ‘progress made in achieving the observance of the rights’.

At the present time, those economic and social rights are likely to be of much greater importance to Kiwis already suffering a dramatic deterioration in their circumstances. What about our civil rights?

Under international human rights law, there’s a fundamental obligation on countries to keep their people safe (eg, from a virus that threatens to devastate sections of the population). A state that cannot do so is a failed one.

This means that in times of real emergency, countries can and do invoke what are known as emergency powers. Of necessity, this usually includes draconian laws that severely limit a number of the fundamental rights and freedoms most people take for granted.

Emergency regulations made governments of the day under NZ’s (former) Public Safety Conservation Act 1932 were notable for their harshness. It should be noted that this Act was enacted during the public unrest that accompanied the ‘Great Depression’.

For example, the Censorship and Publicity Emergency Regulations 1939 (not repealed until 1945), and especially the Waterfront Strike Emergency Regulations 1951, arguably went far beyond what was required.

Our fundamental civil rights and freedoms that have been limited or curtailed in the current lockdown include the right –

  • to liberty (for example we can be stopped at random and asked to justify our journey);
  • to freedom of association (we’re not allowed to mix with those outside our ‘bubble’);
  • to freedom of movement (we’re limited to our neighbourhood);
  • of peaceful assembly (we’re not allowed to get together with others for a wedding, a meeting, a concert).
  • to practise one’s culture (funeral and burial practices that are core components of most cultures are severely restricted).

All these rights and freedoms are legally recognised in the New Zealand Bill of Rights Act 1990. They may ‘subject only to such reasonable (legal) limits as can be demonstrably justified in a free and democratic society’.

In essence, this means that the government needs to have a really good reason for limiting one of our rights. Most of us would accept that the pandemic is such a reason.

Our Bill of Rights is intended to affirm our country’s commitment to the UN International Covenant on Civil and Political Rights 1966. Many of the rights in it are to found in the Bill of Rights.

Under the Covenant, a number of these rights recognise ‘protection of public health’ as a justifiable ‘restriction’ on their exercise. Note the word ‘restriction’. Clearly, a complete removal of any these rights would not be justified.

The Covenant also expressly recognises that in ‘time of public emergency’ (say a pandemic), governments ‘may take measures … to the extent strictly required by the exigencies of the situation …’. Do the measures taken by our government to date meet this threshold?

Given the speed of developments, it is easy to forget key legal milestones. On 24 March, the PM issued an epidemic notice under the Epidemic Preparedness Act 2006. A day later a state of national emergency was declared under the Civil Defence Emergency Management Act 2002.

At 11.59pm the same day, an Order under the Health Act 1956 (s 70(1)(m)), came into effect. It closed most premises and prohibited people from congregating in most public places.

A further, more wide-ranging Order under the Health Act, was issued by the Director-General of Health on April 3.  Included in it were prohibitions on ‘swimming, water-based activities (for example, surfing or boating), hunting, tramping, and other activities of a kind that expose participants to danger …’.

Police officers were specifically requested to ‘do anything reasonably necessary to do assist in ensuring compliance’ with the Order. In my community, this has resulted in officers on our safe city beaches ordering swimmers from the water.

If the media reports are accurate, the police have exercised their new powers with careful discretion. The police know that if they’re over-zealous – something their English counterparts have, on occasions, been guilty of (with reports of officers demanding to see the contents of shopping bags) – they will pay a heavy price in terms of community respect. It’s called ‘Policing with consent’.

Extensions of police powers are inherently controversial. They require a strong justification together with careful parliamentary consideration. For justifiable reasons, that has not happened here. Instead, sweeping new powers have been given immediate legal effect by means of an order under the Health Act.

Of course, people will say – ‘it’s only during the lockdown. Once it’s over, things will return to normal’. I’m not sure what the ‘new normal’ will be like, except that it will be different.

Some commentators have described the pandemic as our ‘9/11’ moment. If so, let’s hope one of the consequences is not an outpouring of controversial legislation with major human rights implications. That’s what happened in NZ after the horrific events on 11 September 2001 in the US.

Then there’s all the talk about testing. Test, test, test, the experts say. Of course, they’re right. Of that, I need no convincing. Inevitably, however, testing of identifiable individuals raises major privacy issues regarding the collection, storage, use and disclosure of their personal information.

Like other civil rights relevant to the pandemic response, the right to individual privacy is not absolute. The Privacy Act 1993, and the Health Information Privacy Code 1994 make that abundantly clear in relation to personal health information.

For example, the Privacy Act’s limitations on when an agency can disclose personal information, may not apply if the agency ‘believes on reasonable grounds’ that disclosure is necessary ‘to prevent or lessen a serious threat to public health or safety’. That exception is clearly relevant to the present emergency.

Of even more relevance at present is the Civil Defence National Emergencies (Information Sharing) Code 2013. This was activated as part of the declaration of national emergency last month. It gives the authorities broad powers to reduce Kiwis’ privacy entitlements during the emergency.

While I accept the necessity of widespread testing for the COVID-19 virus, I wonder where it will lead. Will entry to educational institutions, workplaces, shopping malls, public transport, sporting activities, concerts, theatres and churches require a test as a condition of entry?

Will we move speedily to adopt some form of ‘traffic light’ classification system, with the result that one’s freedom of movement and participation in public places may depend on whether we test ‘red’, ‘amber ’, or ‘green’? In other words, will the testing that many of us may find intrusive, become a daily pre-condition of entry to public places?

If so, what will remain of the cherished Kiwi way of life?

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Tim McBride

Human rights author and commentator