The Government has largely carried people with it since the outbreak of Covid-19 and earned a high degree of trust and compliance.
Of necessity, it has made things up as it went along. That, in turn, has raised questions of the legal powers it was relying on. Several legal challenges are now under way.
• Covid-19 coronavirus: Controversial bill passed to enforce alert level 2 powers
• Covid 19 coronavirus: National votes against new law which sets out level 2 enforcement rules
• Covid 19 coronavirus: Human Rights Commission 'deeply concerned' about Public Health Response Bill
• Covid 19 coronavirus: Greens raise concerns about fast-tracked consents
As the country moved into level 2, the Government needed legislation to continue enforcing restrictions without extending the state of emergency. Hence, the Covid-19 Public Health Response Bill that was passed through the House under urgency on Wednesday.
That, too, was inevitably written under pressure. To a large degree the powers in the Bill mirror those that exist in some other legislation, including the Health Act the Government has relied on. That does not make them right.
Exceptional coercive powers, especially powers of entry without warrant, need to be highly circumscribed and tailored to the contexts where they may be applied. Getting buy-in to them requires the utmost sensitivity to fears of how they may be used and abused. Unfortunately, the Bill falls short of that mark. That is especially so in relation to Māori.
Urgency is never a good way to make good law, let alone this kind of legislation. The Bill was repeatedly revised on the hoof. Some changes were good. The initial term of two years has been reduced to renewal after 90 days, with a sunset after two years. But changes made by Supplementary Order Paper in response to Māori concerns have made the legislation worse.
Despite the urgency, the Government should have found a way to test it before a Select Committee. Apparently, various people were asked for comment on an exposure draft of the legislation. It is not yet clear who they were, what they said and how far their concerns were addressed.
However, National MP Alfred Ngaro revealed in the House that Māori who were consulted said the Bill needed to reference the Treaty principles and framework to guide the exercise of these powers in relation to Māori and their operation on the ground. All the Government did was include a clause that restricted entry on to marae to police officers, rather than all enforcement agents, on the same basis as private dwellings.
The failure to take that advice on board was a serious miscalculation.
Māori are in a unique situation, not just because of the Treaty relationship. There is a long and shameful history of coercive "emergency" powers being abused. Governments have only just apologised for the invasions of Parihaka and Maungapōhatu that relied on similarly worded powers. Memories of the police raids in Te Urewera remain raw. The sledgehammer of coercive legislation was used in place of dialogue and peaceful resolution, and filters on the sweeping powers in the Terrorism Suppression Act were ineffectual or ignored.
The good will that seemed to be building between police and iwi around the checkpoints has dissipated. The Minister's reaction to the groundswell of Māori anger at the Bill was to amend it by removing the limitations for entry on marae, rather than improving protections for Māori.
Yes, the Minister was tired and frustrated. Hopefully, he regrets his kneejerk response to deep-felt Māori concerns. The Government now needs to move rapidly into damage control to avoid this Bill escalating into their version of the Seabed and Foreshore debacle. That includes adopting the original advice, and amending the Bill to recognise the Treaty partnership is different and unique and provides a framework for achieving the objectives of the legislation by cooperation without resort to coercive powers that have such a shameful history.
• Professor Jane Kelsey is a Professor of Law at University of Auckland