This submission to the Royal Commission, prepared by Maxim Institute Research Fellow Alex Penk, highlights five critical constitutional lessons from New Zealand’s pandemic response: the need for better emergency preparedness in our legislation; restoring public trust and social cohesion; improving government capability on legal/regulatory issues; openly discussing constitutional changes; and restoring respect for religious freedom.

EXECUTIVE SUMMARY

While issues like public health and the economy are vital and have rightly received a large share of attention, constitutional issues are just as important to our nation’s health and future. The constitution is made up of formal rules and the culture that breathes life into them. It has the authority to structure our society and our individual lives, even and ultimately to coerce us with force, and yet it depends on the people who operate it and their willingness to uphold and enhance it rather than to ignore or subvert it. The constitution is, as former Chief Justice Dame Sian Elias has said, “fragile.” She went on to say: “It is like a cats’-cradle. It is easy to move a strand here and not realise the damage that is done there. It requires constant vigilance by everyone.”

Last year, we published a comprehensive survey of the constitutional implications of New Zealand’s response to COVID-19. We found that some aspects of the response should be celebrated, but others raised significant concerns. In many cases, constitutional decisions made during the pandemic highlighted, amplified, or accelerated long-running trends and weaknesses.

Acknowledging your future-focused approach, this submission highlights five constitutional lessons that should be learned from New Zealand’s pandemic response:

1. Our legislative and regulatory frameworks need to be better prepared;
2. We need to restore trust and build social cohesion;
3. We need to build government capability for legal and regulatory issues;
4. We need to talk openly about constitutional change;
5. We need to restore religious freedom.

We have emphasised the last issue, religious freedom, as it has received less attention elsewhere.

Noting your Terms of Reference, we have not commented on issues outside their scope, like the success of Parliament’s Epidemic Response Committee.

The content of this submission is largely taken from our research paper, and we invite you to refer to that paper for more detail on the issues raised here and for discussion of a number of other relevant issues. We have previously sent this paper to the Royal Commission.