Prime Minister Jacinda Ardern with director general of health Dr Ashley Bloomfield and Police Commissioner Andy Coster. Photo / Mark Mitchell
Prime Minister Jacinda Ardern with director general of health Dr Ashley Bloomfield and Police Commissioner Andy Coster. Photo / Mark Mitchell
COMMENT:
Mask and sanitiser sales must be going through the roof, but suppose masks are to be made mandatory, what will become of our alcohol laws? Although flattering, one fine gentleman felt pretty uncomfortable asking me to expose my face while assessing my driver's licence for the dozen or sobottles of Montepulciano I purchased this week. Post reveal, it was the embarrassment induced by confusing me for being under 18.
Otago University's Marcelo Rodriguez Ferrere assured me it is an offence to sell alcohol to people under 18, but it is not an offence to fail to check someone's ID if they do, in fact look over 18. For those who have greyed prematurely, it seems it may be your lucky day.
More on the issue of consumers. You have to feel rather sorry for the businesses named in association with positive Covid-19 cases. I hope one Rotorua eating establishment will be remembered for its out-of-this-world continental breakfast - think mini croissants, lemon curd, chocolate, and homemade Greek yoghurt - as opposed to featuring on what was quite the adventurous day for one particular positive case.
On more pressing matters, dissolving Parliament has become quite the quandary. The Constitution Act 1986 dictates it must be dissolved on or before October 12 - three years to the day after the final 2017 election results were announced.
"We have a jigsaw puzzle made up of different pieces of legislation. There's nothing magical about dissolution other than it being prescribed in statute. The problem is that the provision is entrenched so to change it, you would need a 75 per cent majority vote in Parliament to do so. It would be almost unprecedented to extend the Government's term," Rodriguez Ferrere said.
The last time anything like this was done was World War I - so in a constitutional sense, it is a pretty big deal.
Once dissolved, Jacinda Ardern would be leading the Government in a caretaker capacity. The issue is that during a caretaker government there is no legislative oversight - meaning, no Simon Bridges, and his Epidemic Response Committee. Essentially the Civil Defence and relevant emergency legislation was not designed to accommodate a dissolved Parliament.
Additionally, Ardern can only call the date of election when Parliament is sitting. The date is set for September 19, but things may change, and fast. Cue the Electoral Act 1993, which says the election could be delayed as late as December. Politics aficionado Bryce Edwards is all for it, for example.
Next up in the puzzle is the Electoral Amendment Act 2020, which came about as a result of the Christchurch earthquake and mosque attacks.
Unforeseen or unavoidable disruptions now also include disruptions that arise as a result of an epidemic notice given under the Epidemic Preparedness Act 2006. In this context the Chief Electoral officer may adjourn voting for an initial period of no more than three days; and one or more subsequent periods of no more than seven days each.
National Party leader Judith Collins announcing her caucus reshuffle at Parliament. Photo / Mark Mitchell
To do so, said officer must consult Ardern, Judith Collins, and any person or organisation with the intel relating to the unavoidable disruption - in other words, the Ministry of Health and Dr Bloomfield. The Chief Electoral officer can also employ alternative voting processes, if need be.
Essentially, the Electoral Commission is probably going bananas right now.
Lockdown legality
Rodriguez Ferrere says the legality of the lockdown 1.0 is no longer an issue seeing as the new legislation has ironed out much of the issues. Saying this, we must not forget the recent case of Borrowdale v Director-General of Health and Attorney General. The NZ Law Society - representing the profession - was granted leave to intervene and address the issues raised by Borrowdale.
Borrowdale's argument centred around the Government's initial public communications about lockdown restrictions when the only order in place was made on 25 March; the extent of the emergency health response powers conferred on the director-general under the Health Act; and an allegation Ashley Bloomfield unlawfully delegated decision-making related to "essential services" to the Ministry of Business, Innovation and Employment.
The Law Society said the rule of law required the Government to distinguish between actions that were unlawful and those that were lawful but "socially undesirable" and "discouraged". It said officials did not clearly draw this distinction during the first nine days of the lockdown, leaving the impression the legal requirements of the March 25 order were significantly wider than they actually were.
The Law Society went on to say the section 70 powers of the Health Act are only to facilitate an immediate short-term response, and that it was incumbent on Parliament to pass bespoke legislation. Parliament did so with the enactment of the Covid-19 Public Health Response Act 2020. On the issue of "essential services" - the list changed frequently without adequate justification, leaving the law inaccessible and opaque. Chief High Court Judge Justice Thomas, Justice Venning, and Justice Ellis presided over the three-day hearing, and their decision has been reserved.
What does this all mean? Rodriguez Ferrere puts it best: "No one cared or knew anything about New Zealand's constitutional framework prior to Covid-19, with people thinking it worked just fine. Now it has been laid bare, and it raises questions of robustness. It is interesting as it's taken a crisis such as this to show how fragile our constitutional framework is."
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