Danielle van Dalen

By Danielle van Dalen - 23/07/2020

Danielle van Dalen

By Danielle van Dalen -

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Preparing our democracy for the next emergency

The COVID-19 pandemic saw New Zealand enter its second nationwide state of emergency in March 2020. This gave the Government access to levels of power not seen in New Zealand since the 1950s, perhaps ever. As a nation, we got lucky this time – the pandemic exposed constitutional weaknesses that might have been exploited if we had leaders with a more totalitarian bent.

When an extraordinary event like this occurs it’s important that we pause and take the time to learn from our experience. There will always be another emergency and we need to be prepared for next time.

New Zealand’s first nationwide state of emergency was declared in response to the Christchurch earthquakes of February 2011. Following that emergency, a Royal Commission of Inquiry was established to examine the building codes, building standards, and built environment in Christchurch to ensure that the city would be better prepared for another earthquake. Following this example, our paper Civic Defence: Defining roles and preparing our democracy for the next emergency joins lawyers, academics, and politicians in their call for the establishment of a Royal Commission of Inquiry to investigate the response to the COVID-19 pandemic and state of emergency.

In the face of the scary unknown of an emergency it’s easy to simply accept the actions of those in charge as essential to protecting us, and as a result New Zealanders put a lot of trust in the Government’s response, readily accepting the extreme restrictions on our freedoms of movement and assembly. This expansion of government control, and our compliance with it, has meant that we now enjoy a practically COVID-19 free society, but in the wake of this historic moment, it’s worth investigating what happened, and why.

Rather than proving the strength of our constitution and its ability to protect against such dangers, the past six months have highlighted some of its weaknesses and limitations to provide sufficient protection from misuse of power. For example, we’ve seen the suspension of important processes for scrutinising Government decisions in the Regulatory Impact Statement, the suspension of Parliament, the suggested suspension of the Official Information Act, and the limited scrutiny of the COVID-19 Public Health Response Bill as it rushed through Parliament in the lead up to Alert Level 2.

I’m certainly not suggesting that our Government is authoritarian, or even moving toward becoming an authoritarian regime. In fact, we would do well to recognise the success of the Government’s response and celebrate that New Zealanders are currently able to live in relative freedom compared to much of the world. However, that may be down to the luck of who was in charge and that those people were respectful of the power they held rather than sufficient constitutional protections. While this isn’t an argument in favour of a written constitution, no defence against the misuse of power should depend upon the goodness of our politicians’ intent.

Both history and international experience have shown that without strong democratic practices and protections there is significant risk that government control can extend beyond what is appropriate. Ensuring any restrictions to our freedom are justifiable and short-term then, is necessary for sustaining the democratic values we enjoy on a daily basis. That’s why we need the (perhaps tedious or even frustrating but necessary) checks and balances to protect against any misuse of power or unnecessary restrictions of freedom. In fact, checks and balances like the establishment of the Epidemic Response Committee played an essential role during this nationwide state of emergency.

While it’s exciting to celebrate the successes of our response to the COVID-19 pandemic so far, it’s essential that the long-term survival of New Zealand’s democratic values and freedoms are not forgotten. This requires answering the gaps in our constitutional response that have been exposed and strengthening the checks and balances currently available to sufficiently protect against abuse of power – whoever holds that power.

Establishing a royal commission of inquiry will provide an important avenue for beginning this work. As Professor Nick Wilson and colleagues suggest an inquiry could investigate questions on the effectiveness and appropriateness of the Governments actions when responding to the pandemic, the social impacts of the methods taken on different communities around New Zealand, “the implications for how public health systems are organised and resourced,” the “different health impacts” of the pandemic, as well as “the long-term societal and economic impacts” of the pandemic. The first question in particular will assist as we determine where constitutional checks and balances should be strengthened.

It’s time to learn from what has happened and prepare for the future. Another emergency will come, the task now is to reflect, and – alongside our work to ensure the long-term survival of our economic, public health and safety – work to ensure the long-term survival of our democracy. This should begin with the establishment of a Royal Commission of Inquiry.

 

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Danielle van Dalen

By Danielle van Dalen -

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