The pandemic was not unprecedented
In which I, a mere mortal, disagree with the International Science Council
It’s common to hear that COVID-19 was “unprecedented”. Among the latest and most august perpetrators are the International Science Council, who recently released a report titled “Unprecedent and Unfinished: COVID-19 and implications for national and global policy.” The Council’s President, fellow Kiwi Sir Peter Gluckman, begins the report with this: “The COVID-19 pandemic brought unprecedented disruption to lives and businesses around the globe.” The pandemic certainly caused widespread suffering and disruption—but was this unprecedented?
I imagine my grandparents, three of whom served in uniform in the Second World War, could have told you a bit about global disruption. So could those who lived through the Spanish flu, which killed nearly 9,000 New Zealanders in two months. Calling the pandemic “unprecedented” lacks historical memory and understanding, and this matters for two reasons.
First, unprecedented situations tend to call forth unprecedented responses. The Council is frank about this: “the community of scientists and science advisors behind this report call for an equally unprecedented ongoing and accelerated response …”. Positively, that can inspire collaboration and cooperation to solve pressing challenges. Negatively, it can be used as a justification to sweep away time-tested principles and safeguards established to protect us from the coercive use of power, like constitutionally protected rights and freedoms. It’s not hard to imagine this “call” being applied to the next “unprecedented” crisis.
Second, it’s hard to plan for the unprecedented. By definition, you can’t really anticipate what’s never happened before. So recognising that pandemics, suffering, and global disruption are actually part of the human experience helps us to be prepared for them. In fact, as Sir Peter, former Chief Science Advisor to New Zealand’s Prime Minister, wrote with Dr Anne Bardsley:
The COVID-19 pandemic is a salient example of a rare event in terms of extreme impact, but one that was in many respects very predictable. Like many other countries, the New Zealand Government found itself relatively unprepared for pandemic human disease, despite epidemiologists predicting for years the inevitability of a human viral pandemic of at least the scale of the current coronavirus crisis.
The language of that quote—“rare” rather than “unprecedented”—is much more accurate and much more helpful. It allows us to identify and plan for risks in a way that benefits from the lessons of history and that calibrates our response to the full range of causes, consequences and human experience, not just those that are immediate and obvious. I wrote about the precedented nature of the pandemic in “COVID and Our Constitution”; here’s the relevant section, complete with High Court and Waitangi Tribunal support.
COVID-19 is widely described as an “unprecedented” crisis. To give a few examples, the Ministry of Justice said that we faced “an unprecedented public health emergency” when it analysed the COVID-19 Public Health Response Bill (CPHR Bill).[1] The High Court said we were in “a time of unprecedented public crisis” in an MIQ case.[2] The Attorney-General, David Parker, describing the Government’s response to a conference on public law, said that we faced “unprecedented challenges.”[3]
Though this usage is wide, it is wrong. Or, at best, it’s true only in a narrow and not very helpful sense, as when the Prime Minister said, “this event is unprecedented in New Zealand’s history. Never before have we sought to shut down our country in the space of 48 hours.”[4] In that narrow sense, we hadn’t encountered COVID-19 before and we hadn’t taken the exact steps in response that we have in the last two years so, yes, there’s some truth in this description. But it’s also short-sighted and ahistorical.
Others have taken a more historically informed view. The Waitangi Tribunal suggested that Māori tolerance for the Government’s suspension of tangihanga during lockdown might owe something to collective memories of the Spanish Flu and its impacts on Māori.[5] The High Court in another case noted that nearly 9,000 New Zealanders died of the Spanish Flu in just two months, pointed out that earlier legislation similar to the powers used to impose the first lockdown in 2020 had been “used to similar effect over large portions of the country”, and described the use of lockdown powers as “extraordinary” but “not wholly unprecedented.”[6] The Ministry of Justice, vetting the COVID-19 Public Health Response Amendment Bill, also used “extraordinary” rather than “unprecedented” when describing the pandemic.[7]
There’s also historical precedent for the creation and invocation of emergency powers in other contexts. Professor Janet McLean QC and her co-authors point to the Public Safety Conservation Act 1932, used “to declare a state of emergency in order to send troops in to break up the waterfront strike” in 1951, and the “notorious” Economic Stabilisation Act 1948, “invoked by Prime Minister Robert Muldoon to freeze wages and prices without the scrutiny of Parliament in 1984.”[8] Emergencies, and the use and abuse of emergency powers, are by definition unusual but within human experience and most people’s living memory.
Language matters because it reflects and shapes our attitudes and our actions. “Unprecedented” situations are likely to draw unprecedented responses, like a suggestion that the Official Information Act be suspended as part of the pandemic response.[9] Extraordinary” situations might receive a more balanced response, one that recognises we’ve departed from what is usual but that we’re still within the realm of human experience, that the values and safeguards that inform our constitution and our society are still relevant—indeed, more relevant than ever, even if exceptional circumstances might alter their expression. Our constitution represents our collective memory of past ways of structuring public power and preventing its abuse, including in emergencies, and an ahistorical response creates a risk of constitutional loss or breach. History and memory were lacking in important parts of our COVID-19 response. We need them to safeguard our constitution, and us.
[1] Jeff Orr, “Consistency with the New Zealand Bill of Rights Act 1990: COVID-19 Public Health Response Bill,” Ministry of Justice, 11 May 2020, [17].
[2] Christiansen v Director-General of Health [2020] NZHC 887, [67].
[3] David Parker, “The legal and constitutional implications of New Zealand’s fight against COVID,” Speech to the New Zealand Centre for Public Law, 2 December 2021, https://www.beehive.govt.nz/speech/legal-and-constitutional-implications-new-zealand%E2%80%99s-fight-against-covid (last accessed 11 February 2022).
[4] Cited in Borrowdale v Director-General of Health [2020] NZHC 2090, [152].
[5] Waitangi Tribunal, Haumaru: The COVID-19 Priority Report, 48, and see also Finance and Expenditure Committee, Inquiry into the operation of the COVID-19 Public Health Response Act 2020 (Wellington: House of Representatives, July 2020), 8: “Submitters stressed to us that Māori have been deeply scarred by the effects of the 1918 pandemic, along with other introduced diseases borne by settlers during colonisation. This scarring has been inter-generational.”
[6] Borrowdale v Director-General of Health (High Court), [54], [129].
[7] Jeff Orr, “Consistency with the New Zealand Bill of Rights Act 1990: COVID-19 Public Health Response Amendment Bill,” Ministry of Justice, 27 July 2020, [16].
[8] J. McLean, A. Rosen, N. Roughan and J. Wall, “Legality in times of emergency: assessing NZ’s response to Covid-19,” Journal of the Royal Society of New Zealand (2021) 51(1) 197-213, 202.
[9] Sam Sachdeva, “Officials pitched OIA suspension during lockdown,” Newsroom, 24 August 2020, https://www.newsroom.co.nz/officials-pitched-oia-suspension-during-lockdown (last accessed 20 April 2022).
Well noted, Alex. Once again it seems many of today's commentators and decision-makers have never picked up a history book... and considering our education system's new pre-packaged, ethnically-washed curriculum with its limiting exclusive focus on time and place (200 years only, New Zealand/Aotearoa only), don't expect any well-educated world free-thinkers to emerge from Kiwiland any decade soon.