A number of Governments are declaring a state of emergency to combat Covid-19. In some instances, even local governments are making such declarations. New Zealand has not yet made such a move, although many of the actions being undertaken are unprecedented and closely resemble what could be expected in an emergency.
Emergency laws are typically used in times of war (or terrorism), national disaster or epidemics. While most people are familiar with emergency powers in the first two instances, dealing with epidemics are rarer, and given the nature of the threat, require a greater degree of calm and reason than more visible threats.
Emergency legislation allows Governments to do things, for set periods, that they normally cannot do otherwise. This allows authorities to act with speed and certainty to control the problem they are confronting. During this period (some) existing rights and liberties can be curtailed. Amongst the powers Governments can claim in times of emergency are: Restricting the freedom of movement of the public; control of public spaces and areas of potential danger; deployment of the military; control of assets necessary for the good of the community (such as food and its supply); access to additional funding; censorship; and even pausing constitutional mechanisms.
The key point is that following a declaration of emergency, government orders are, depending on the area the emergency is applied to, obligatory. This would mean, for example, considerations like refusing to self-isolation or the hosting of public gatherings are not optional.
Although some of the options are tied to international guidance, such as with the World Health Organisation and human rights law, most are defined and operate within domestic settings and their own constitutional settings.
When most people think about this in New Zealand in this area, they think of the Spanish flu. In that instance, the restrictions were dealt with under the War Regulations Act (which gave emergency powers, and unfortunately overlapped with large degrees of censorship) and then subsequent amendments to the Health Acts, in which rapid progress was made with regards to fighting the pandemic with quarantine, and then confronting some of the multiplier effects of overcrowding and unsanitary considerations.
In New Zealand, we have a jumble of rules and legislation that can come into play if an emergency is declared. Many of the current restrictions (such as around quarantines and travel) can be dealt with, without a declaration of emergency, under existing law such as the Health Act, which already contains extensive powers.
AdvertisementAdvertise with NZME.
The Civil Defence Emergency Management Act of 2002 provides a raft of powers that could be used, if normal services and standards are not up to the job, or a national oversight within a more unified and powerful setting is required. Other laws which have a direct applicability, such as the 2006 Epidemic Preparedness Act, have very forceful measures, but require the PM to issue an "epidemic notice", which gives very similar powers to an emergency but does not use that word.
With regards to public money, although some financial support can be moved around with the tools already in the toolbox, for more substantive financial support at short notice a declaration of an emergency could add an additional layer of options.
The benefits of a declaration of emergency is that it unifies and galvanises a national response. Plans for all fall into place, and people know what to do. Uncertainty (should) evaporate and clear timelines of how long they will last come into play.
Finally, best practice is that management becomes cross-party.
The problem is when the legislation has been drafted without such considerations in mind, and politicians return to their political squabbles and point-scoring rather than focusing on the national interest.
• Alexander Gillespie is a professor of law at Waikato University.