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Source: New Zealand Parliament – Hansard

Question No. 3—Prime Minister

3. Hon SIMON BRIDGES (Leader of the Opposition) to the Prime Minister: Does she stand by all her Government’s actions in response to COVID-19?

Rt Hon JACINDA ARDERN (Prime Minister): Yes, particularly our decision to go hard and go early. That member will have seen today that I gave an outline of what level 2 will mean for New Zealand when we reach there. While this is no way of foreshadowing the decision Cabinet will make on Monday regarding whether or not we will move, it was important to give some context to what it will look like. Ultimately, level 2 is our safer normal—not a return to business as usual but a time to enjoy reconnecting with those we haven’t seen for some time. But we want to make sure that, when we make that decision, it is at the right time. Treasury modelling has told us that we are better off, in the longer term, to move down through alerts progressively and not yo-yo. If we think of ourselves as halfway down Everest, I think it’s clear no one wants to hike back up that peak.

Hon Simon Bridges: Has she seen advice to police that states that an isolation campaign by police “is unlikely to meet the high statutory threshold for the exercise of these powers. Standard police powers to stop, search and surveillance must be exercised for their statutory purpose, and may not be used to assist police in the enforcement of the isolation campaign.”?

Rt Hon JACINDA ARDERN: I have seen final Crown Law advice, and I note the Attorney-General, with the advice from Crown Law, has indicated there are no gaps in the enforcement arrangements that have been used, but, of course, as the member well knows, a section 70 notice was issued to provide additional clarity.

Hon Simon Bridges: Why did police ignore advice they’d received and proceed with an isolation campaign?

Rt Hon JACINDA ARDERN: Again, as I have just said, with advice from Crown Law, the indication, obviously, from the Attorney-General publicly has been that there are no gaps in enforcement, and, again, all of the underpinnings for our enforcement powers are public. The epidemic notice, state of emergency, section 70 notices, even the Cabinet paper on which these powers were based are all in the public domain. With regard to legal advice, the member well knows the position of the Crown. Ultimately, it’s a decision for the Attorney-General, but I would reflect that, when the member was last a Minister, he himself said, “In terms of making legally privileged documents public, no Crown has ever done that.”

SPEAKER: Order! Order! I would like the Prime Minister to say the last sentence she did, because I couldn’t hear her.

Rt Hon JACINDA ARDERN: The last sentence was a quote from Simon Bridges as Minister, when he said, “In terms of making legally privileged documents public, no Crown has ever done that.”

Rt Hon Winston Peters: So is the Prime Minister saying that this major and fundamental principle of our form of democracy and law—that is, the confidentiality of legal advice—she does not intend to corrode that principle, though others might?

Rt Hon JACINDA ARDERN: Ultimately, I’ve said that is a decision for the Attorney-General, but I was simply reflecting the position of the member now asking the question when he was in position as a Minister and someone in receipt of legal advice. Again, that was in relation to Pike River, an issue of high degree of public interest. Finally, again, I would point out that, as I’ve said many times, all of the underpinnings for the enforcement regime that was put in place for the alert level framework are publicly available. Ultimately, they, of course, include the section 70 notice, which was used for clarity; the Epidemic Preparedness Act, the law in which it was based; and, of course, the civil defence emergency regime, which is also one of the bases on which enforcement powers are used.

Hon Simon Bridges: In light of her answers just then, why did she release Crown Law legally privileged advice in the public interest on 20 December 2018 in relation to the possible appointment of Wally Haumaha as Police Commissioner, and isn’t the public interest in relation to lockdown restrictions for nearly two months infinitely more important?

Rt Hon JACINDA ARDERN: Again, I’ve ultimately said this is an issue for the Attorney-General. I do note that he did offer a briefing from the Solicitor-General directly to the member, and all of the underpinnings for this regime are in the public domain.

Hon Simon Bridges: To be clear, does she believe the police isolation campaign after lockdown was lawful?

Rt Hon JACINDA ARDERN: Isolation campaign—again, these were the provisions that were put in place under the Epidemic Preparedness Act, a piece of legislation designed to help New Zealanders stay safe in a pandemic. I fail to actually understand why the member is so focused on challenging the role of the epidemic Act in keeping New Zealanders safe. In fact, I really struggle to understand what the outcome he’s driving for is here.

Hon Simon Bridges: Has she seen advice to police that “standard stop, search and surveillance powers available to police will not assist it in enforcing the isolation campaign.”?

Rt Hon JACINDA ARDERN: Again, I’ve seen the final advice from Crown Law, and, again, as I say, the Attorney-General—and I concur, from the advice I have seen—has also said that there was no gap in enforcement powers.

Hon Chris Hipkins: Can the Prime Minister confirm that one of the reasons Governments generally don’t release legally privileged advice is because they do not want to undermine the Crown’s position in current prosecutions?

Rt Hon JACINDA ARDERN: That’s exactly right. I would note that some of the last use of enforcement powers were, for instance, for large gatherings—I believe, last weekend—some of which involved gang members, who may indeed challenge the basis of their prosecution, as anyone is able to do, in the courts. I don’t understand why the member would wish to release advice that may potentially be used to undermine that process.

Hon Simon Bridges: When she said yesterday that “The epidemic notices … probably could be more fit for purpose going forward,” was that an admission that valid questions exist around the legality of her lockdown?


Rt Hon Winston Peters: To be clear, is her position that the sub judice rule is so critical for a fair trial that releasing the information being called for by the Opposition is simply demonstrably against the law of this country, against the parliamentary rules of this country, and wrong?

Rt Hon JACINDA ARDERN: Again, as I’ve said, I leave these decisions to the Attorney-General, but I’ve also reflected the previous positions of the member asking the questions—

Hon Member: Getting old, mate—getting way too old.

Rt Hon JACINDA ARDERN: —with regard to advice to the Crown.

SPEAKER: Order! [Interruption] Order! Sorry, I will stand. I just want to indicate that reflections of that type made in my direction are unacceptable.

Hon Simon Bridges: Will the Prime Minister release the legal advice on the legality of the lockdown?

Rt Hon JACINDA ARDERN: Again, as I have said time and time again, there was no gap in the enforcement powers. The basis for those enforcement powers are already in the public domain. The member is asking for legally privileged documents. That is a question for the Attorney-General, and I’m happy to leave it with him.

Hon Simon Bridges: If there are no gaps in the Government’s legal powers regarding lockdown, why is the Government considering new enforcement measures next week? Wouldn’t they simply be not necessary?

Rt Hon JACINDA ARDERN: We’ve been very open about this. The Epidemic Preparedness Act is designed for a certain stage in pandemic responses, and, of course, as you move down the alert levels, you do need to have something that’s more specifically designed for the circumstances you’re in front of. You don’t necessarily want to have larger-scale enforcement provisions, and so we can be more tailored, and that’s what the Attorney-General is, obviously, working on.

Hon Simon Bridges: Isn’t it absolutely crystal clear that new laws wouldn’t be required for less-stringent levels unless they were required for more-stringent ones, and that must be the case?

Rt Hon JACINDA ARDERN: No. That is absolutely not correct.

Rt Hon Winston Peters: Isn’t it patently and demonstrably clear that that is the very reverse of the situation being propositioned by the Leader of the Opposition?

Rt Hon JACINDA ARDERN: Essentially, yes.

Hon Simon Bridges: Will we be able to deduce from the non-release of legal advice on the legality of the lockdown that there’s very significant problems with its legality?

SPEAKER: Order! The Prime Minister has no responsibility for the member’s deductions.