How our pandemic response affected our body politic and constitutional culture
New Zealand Prime Minister Jacinda Ardern recently told Harvard University students about the importance of “empathy and kindness” to prevent social division. But how well is New Zealand doing on this front?
Last year, two different High Court judges made extraordinary name suppression decisions to protect people involved in vaccine mandate cases, due to the “public condemnation” and risk of “bullying, harassment, and vilification” directed at anyone differing from the majority view.
These cases appear in a comprehensive review of our constitutional response to Covid-19 over the last two years. Constitutions are made of formal procedures, like the law-making process, and the constitutional culture that breathes life into the machinery of government.
They’re important because they create and limit public power. While we made some good decisions during the pandemic, the bigger picture that emerges through court cases, parliamentary reports and official advice, is that our constitution needs repair.
We can start the repair by celebrating what we did well and building on it. The Government’s move to create the Epidemic Response Committee when Parliament was suspended was commendable and respected the Opposition’s important role.
And when the Covid-19 Public Health Act was passed under urgency without the normal public input, it was sent for post-enactment Select Committee scrutiny. Both these moves demonstrate solid institutional commitment to constitutional norms like democratic accountability.
Unfortunately, the story doesn’t end there. Our response weakened some key constitutional safeguards. Some officials failed to apply MIQ regulations and instead relied on inaccurate guidance on government websites to deal with applications for compassionate exemptions.
The High Court found that, although the Prime Minister and Police Commissioner told the entire population to stay home or be arrested in 2020’s first lockdown, they did not have the actual legal authority for this for the first nine days of that lockdown. Astoundingly, almost everyone rapidly and pragmatically moved on from this finding.
Additionally, Tiana Epati, president of the Law Society, critiqued passage of the Vaccines Legislation Bill under urgency when the bill granted “expansive powers that may be exercised with little or no democratic scrutiny”.
Our constitutional response also fostered avoidable division and distrust. Weakened safeguards erode the legitimacy of the government and of the law; Epati pointed out that the wrongful use of urgency undermines public confidence and trust.
While the Government had to make hard judgment calls and some division was probably inevitable, they made it worse by leading with a lack of empathy. In stark contrast to her remarks at Harvard, the Prime Minister was strikingly composed about her Government’s policies creating a two-tier society, while the Attorney-General spoke confidently of requiring “the unwilling” to do what the majority was doing.
Perhaps taking a cue from this, much public debate was toxic and hostile to dissent, as the High Court recognised in its name suppression decisions. Empathy’s only meaningful if it’s empathy for all. Scorn entrenches distrust; no wonder then, as Professor Paul Spoonley said, “we’ve radicalised people”.
Our cumulative responses have changed our constitutional culture, and there’s a real prospect that the bad will outweigh the good.
So in addition to building on our successes, we need to take our constitutional safeguards seriously. For example, we need to shift our law-making culture to one where urgency is used appropriately and away from one where, as one report said, there is “an ever increasing expectation that all legislation can be expedited all at once”.
We also need to get much better at forward planning. The High Court found that governments of all stripes had failed to prepare proactive regulations under the Epidemic Preparedness Act and had to rely too much on reactive provisions that gave the government concerning power. Future governments need to do better so we can prepare for the next emergency in a way that’s consistent with our constitutional values. It’s up to us voters to expect and reward this behaviour too.
We also need to create a public culture that appreciates and embraces dissent and respects minority values and positions. The High Court should not need to suppress people’s names in order to uphold “the rights of minority groups” to access justice.
And on a number of occasions, the Government failed to act consistently with the New Zealand Bill of Rights Act, with consequences for those on the wrong side of their policy – from Kiwis stranded overseas by the MIQ regime, to New Zealand’s religious groups whose rights were overlooked more than once. We need to treat each other as neighbours – not as adversaries – especially when we disagree.
Looking back over the first two years of lockdown is long enough to see patterns emerging, but early enough to rebuild and correct course where we need to. Let’s reaffirm our commitment to a healthy constitutional culture, and to each other – because constitutions are powerful, but also vulnerable.
This column was first published by Stuff earlier today. It’s based on my research for Maxim Institute, “COVID and our Constitution: How a pandemic affected our body politic and culture”, which is available here.
Great article Alex! Thanks for your hard work in this space, really looking forward to reading your paper.