COVID Constitutional Check-up

How a Pandemic Affected Our Body Politic and Culture

Over the past two years there have been a number of different responses to the COVID-19 pandemic. 300 Immediate Modification Orders, over 20 court cases, and two reviews of the Bill of Rights Act are just some of the ways Aotearoa New Zealand has tried to mitigate the spread of the virus. Maxim Institute Research Fellow Alex Penk has looked at all of these and delivered an up-to-date and comprehensive report.

Today Maxim Institute releases our latest paper, COVID and Our Constitution: How A Pandemic Affected Our Body Politic and Culture. The paper celebrates what we got right, but also shows where we must do better.

The Epidemic Response Committee was “a beacon.” Created to scrutinise Parliament’s response to the pandemic it had, “a majority of Opposition MPs and chaired by the Leader of the Opposition, the Committee had wide powers to summon documents and individuals.” It was a success for democracy.

Sadly, we also got some big things wrong. “I think there were clear failures and areas where we need to improve,” says Alex, “No matter how successful our public health response, it should not prevent us from honestly and maturely acknowledging where our constitutional response could and should have been better.”

In responding to the pandemic we weakened important safeguards. From the unlawful order that imposed our first lockdown in 2020—which the High Court moved on too quickly from—to applying guidance from a website as if it were the law and getting caught up about whether you can use the toilet at a picnic. There was a lack of debate around increasingly accelerating laws which undermines legitimacy and trust.

Some division is inevitable in a situation like we’ve been through. However, a recent survey found that 72 percent of New Zealanders think we are more divided now than we were a year ago. The Government made this sense of division worse by leading with a lack of empathy, particularly around a “two-tier society” and their “constitutionally unsound” Vaccines Bill. The Government, “spared little thought and even less empathy for the plight of those who… were hesitant or unwilling to comply with Government decisions.” Says Alex. “The last two years have been challenging for all of us, and as the effects of the pandemic continue to ripple out those challenges will remain with us.”

But we can move forward together. The paper’s recommendations include:

1. Plan accordingly for the next ‘unprecedented’ crisis by creating PMOs, and rewarding politicians for forward-planning.
2. Less use of ‘urgency’ in passing legislation. Emergency powers are necessary but can be dangerous.
3. Demand that leaders show empathy for all, especially minorities. This will assist in creating a culture that appreciates and embraces dissent to overcome the “social virus of polarisation” and strengthen social cohesion.

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