COVID-19 legislation being rushed through Parliament has sparked a heated debate over concerns among Opposition MPs that it "puts far too much power" in the hands of Prime Minister Jacinda Ardern.
The COVID-19 Public Health Response Bill was introduced to Parliament on Tuesday and debate continued into Wednesday morning, because it sets the legal framework for alert level 2 which comes into effect on Thursday.
The Government is no longer declaring a state of emergency as the nation shifts out of alert level 3, and Attorney-General David Parker said the time has come for a "bespoke piece of legislation" to guide the new rules.
But Opposition MPs are sceptical. National has had some wins, such as ensuring the legislation is reviewed every 90 days before it expires in two years' time. But they are concerned about how much power it gives the Prime Minister.
Throughout alert levels 3 and 4, three pieces of legislation were enacted - the Health Act, the Civil Defence and Emergency Management Act and the Epidemic Preparedness Act - giving the Government the all powers it had to intrude on civil liberties.
Whereas the Health Act gives power to the Director-General of Health Dr Ashley Bloomfield, the new legislation transfers some power to Health Minister David Clark, who will be able to make judgements based on more than just health.
That's how Parker justified the legislation in Parliament. He said the Opposition has been frustrated at how economic factors weren't considered enough throughout the lockdown, and that's why the new legislation is needed.
But the Opposition says it's the Prime Minister who will have the real power, because it's unlikely the Health Minister will act on anything without her approval.
National MP Gerry Brownlee argued that it "puts far too much power in the hands of one person: the Prime Minster" because there is also no mention of what advice she should take before making a decision.
And even then, the Director-General of Health still has the power to declare long-term emergency orders when necessary, bringing in strict measures Kiwis grew familiar with under lockdown, such as having to stay at home and refrain from travelling.
ACT leader David Seymour said the new law fails to balance the rights and freedoms and overall welfare of all New Zealanders with the Government's effort to control COVID-19, and he will not be voting for it.
"I have tried to work constructively to limit the power of the Director-General, making a democratically elected minister the only person with the power to issue long term orders, but the Government voted against that."
As the legislation sets out the legal framework for the next two years, National MP Brett Hudson suggested there is not need for it, unless there are problems with the current three Acts the Government has been using.
He said it seems like the Government finds those Acts "a bit annoying", which he said is fair enough, but then they should say so, and Parliament could work on improving them.
Parker argued the powers under the COVID-19 Bill are "actually narrower than the powers under the Health Act" and that's why the Government felt the need to create a whole new framework.
"This Bill says going forward, even if we go back to level 3 or 4, in the future the exercise of those powers has to be reported on in a more transparent way.... [It] creates more accountability because it's a ministerial decision rather than the Director-General of Health."
There is speculation the Government lacked the legal power to enforce the alert level 4 lockdown, with leaked Crown law advice to the media purportedly showing police were initially told they had little power to enforce the rules.
But Parker has dismissed the claims and refused to release the Crown law advice, insisting the law has been followed. He said the Crown is entitled to claim legal professional privilege in respect of the advice that it receives.
"The idea that not releasing the legal advice means the legal advice says there's something bad in there is just wrong and unprincipled."
The Opposition said Parker has still not justified why an entirely new framework required.
"What is the basis for the fear the Government has to the extent the need to pass legislation that is going to seriously continue to infringe on the civil liberties of New Zealanders?" Brownlee asked.
"I don't want to say we shouldn't take any precautions or that we shouldn't be sensible or watch the opportunities we have to prevent the spread of this particular disease. But it appears there is no trust that New Zealanders can be sensible."
Parker said the strict rules must continue until there is more certainty about the virus. He said it appear COVID-19 is not morphing faster than it's possible to make a vaccine, so New Zealand could be safe as long as it maintains low levels of infection.
But if there is no prospect of a vaccine, he said society "has to deal with it in a different way" which is when the rules could be revisited - such as police being able to go onto a property without a warrant to stop parties.
"But we're not at that point yet."
