The Government has largely carried people with it since the outbreak of Covid-19 and earned a high degree of trust and compliance. Of necessity, it has made things up as it went along. That, in turn, has raised questions of the legal powers it was relying on. Several legal challenges are now underway.

As the country moves into level 2, the Government needed legislation to continue enforcing restrictions without extending the state of emergency. Hence, the Covid-19 Public Health Response Bill that was passed through the House under urgency yesterday. That, too, was inevitably written under pressure. To a large degree the powers in the Bill mirror those that exist in some other legislation, including the Health Act the government has relied on. That does not make them right.

Exceptional coercive powers, especially powers of entry without warrant, need to be highly circumscribed and tailored to the contexts where they may be applied. Getting buy-in to them requires utmost sensitivity to fears of how they may be used and abused. Unfortunately, the Bill falls short of that mark. That is especially so in relation to Maori.

Urgency is never a good way to make good law, let alone this kind of legislation. The Bill was repeatedly revised on the hoof. Some changes were good. The initial term of two years has been reduced to renewal after 90 days, with a sunset after two years. But changes made by Supplementary Order Paper in response to Maori concerns have made the legislation worse.

Despite the urgency, the government should have found a way to test it before a Select Committee. Apparently, various people were asked for comment an exposure draft of the legislation. It is not yet clear who they were, what they said and how far their concerns were addressed.

However, National MP Alfred Ngaro revealed in the House that Maori who were consulted said the Bill needed to reference the Treaty principles and framework to guide the exercise of these powers in relation to Maori and their operation on the ground. All the Government did was include a Clause that restricted entry onto marae to police officers, rather than all enforcement agents, on the same basis as private dwellings.

The failure to take that advice on board was a serious miscalculation. Maori are in a unique situation, not just because of the Treaty relationship. There is a long and shameful history of coercive ‘emergency’ powers being abused. Governments have only just apologised for the invasions of Parihaka and Maungapohatu that relied on similarly worded powers. Memories of the police raids in Te Urewera remain raw. The sledgehammer of coercive legislation was used in place of dialogue and peaceful resolution, and filters on the sweeping powers in the Terrorism Suppression Act were ineffectual or ignored.

The goodwill that seemed to be building between police and iwi around the checkpoints has dissipated. The Minister’s reaction to the groundswell of Maori anger at the Bill was to amend it by removing the limitations for entry on marae, rather than improving protections for Maori.

Yes, the Minister was tired and frustrated. Hopefully he regrets his kneejerk response to deep-felt Maori concerns. The Government now needs to move rapidly into damage control to avoid this Bill escalating into their version of the Seabed and Foreshore debacle. That includes adopting the original advice, and amending the Bill to recognise the Treaty partnership is different and unique and provides a framework for achieving the objectives of the legislation by cooperation without resort to coercive powers that have such a shameful history.

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