Covid 19 coronavirus: Law Society calls for greater Govt clarity on curbs to our freedoms and commerce

The country's lawyers want greater transparency from the Government as it imposes constraints on our liberties and commerce "which we do not normally accept".

Consideration also needs to be given to reconvening Parliament as soon as safely possible, even before the end of the current nationwide lockdown, and certainly if the lockdown is extended, Law Society president Tiana Epati says.

Her thoughts and concerns, which include the potential use of Henry VIII powers, were outlined in a letter to Leader of the Opposition Simon Bridges over last weekend.

Bridges is the chair of the Epidemic Response Select Committee, which is providing parliamentary oversight of the Government's management of the Covid-19 crisis while Parliament is adjourned.

Te Kāhui Ture o Aotearoa (the Law Society) has brought together legal experts from its Rule of Law, Human Rights and Privacy, and Public and Administrative Law committees to discuss how they might be able to help the committee and Government.

"Like everybody else in New Zealand, lawyers and the Law Society recognise the danger Covid-19 poses to New Zealanders and the complexity of dealing with this unprecedented state of affairs," Epati wrote in the letter, released on Tuesday.

"Responding to the crisis requires a commitment to the fundamental values that underpin our legal system."

But Epati said there has been "public confusion" as New Zealand entered and continues to progress through its alert level 4 lockdown period.

"There is a general acceptance that in times like this the first duty of government is the protection of its people, and governments might need to use the law in ways we do not normally accept," she said.

"This does not mean the rule of law is any less important; in many ways the rule of law is more important now than ever before."

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While Kiwis must accept restrictions to defeat Covid-19, Epati said, clarity about the constraints on our usual freedoms of movement, association and commerce was critical.

"And clarity about the legal basis for these constraints is central to ensuring compliance and ongoing public confidence and support."

There has been significant uncertainty about what businesses can stay open and were deemed essential services by the Government at the start of lockdown, or what activities people can still enjoy.

Yesterday, the Epidemic Response Committee was told thousands of businesses have already been damaged — "many of them mortally" — by Covid-19 and the lockdown.

There are also bolstered police powers during the lockdown to allow for roadblocks and checkpoints, while police have the mandate to "enter, remain and inspect" any household or office suspected of holding an unsanctioned gathering.

Police Commissioner Andrew Coster said as of yesterday 45 people are facing prosecution for allegedly flouting the lockdown rules, up from 16 the day before.

"The Law Society considers it important to identify the legal foundations for the various responses by the Government to the Covid-19 epidemic," Epati wrote in her letter to Bridges.

"The most conspicuous example is the public confusion that resulted from government communications merging activities that are now legally impermissible — that is, contrary to law — and activities that, though lawful, are undesirable and discouraged."

Epati said the law should be clear, clearly enforceable, and easily accessed and understood by all Kiwis.

Also welcomed, the letter read, was publication of key legislation, orders and other documents on the Government's Covid-19 website.

"The website could be improved further by creating an explicit link between particular practical instructions or directions and the legal basis on which they are made," Epati said.

"Legal prohibitions should be explicitly identified, as should the consequences of default. All the legal instruments, policy papers and explanations of their legal foundations should be published as soon as they are available, so that New Zealanders can clearly see the justifications for what is being done and the statutory powers being relied upon."

Epati said the Epidemic Response Select Committee and the Government will be thinking about what the next stage of the Covid-19 response will look like.

"As far as possible, there should be an ongoing attempt to replicate the normal policy and law-making process," she said.

"The Law Society recognises the realities of the current crisis have prevented this to date. But, as time goes on, draft instruments and policy papers should be made available to enable New Zealanders to comment on proposed measures that affect them or in which they are otherwise interested."

Of particularly importance, Epati said, was that values and processes set out in the Legislation Guidelines are maintained as much as possible.

"People affected should be consulted where feasible. Decisions that affect peoples' rights should be reviewable in some way," she said.

"Where there are constraints on rights and interests usually recognised by law, sunset clauses are desirable to prompt re-examination of the need for ongoing restrictions."

Concerns were also raised by Epati if the Henry VIII powers, the transfer of power from the legislature to the executive, in the Epidemic Preparedness Act 2006 were used.

"Parliament needs to be able to exercise its disallowance power even if it cannot meet as it usually might. Any future statute that contemplates more extensive Henry VIII powers should be carefully tailored to provide for public consultation where possible and should be subject to approval or disallowance through the parliamentary process," she said.