Grant Morris: Liberty in lockdown, Wk 3.

New Zealand has changed dramatically in response to Covid-19.  Fundamental rights and liberties have been curtailed to assist in suppressing the virus.  From a legal history perspective, this is similar to what New Zealand experienced in World Wars One and Two and during the 1951 Waterfront Dispute.  It is unclear how long these measures will be necessary.  At the present time we just don’t have enough data to confirm the true case fatality rate of this virus in New Zealand, or overseas.  In the absence of comprehensive information, the government is now taking the cautious approach with a nationwide lockdown.

Under section 162(4) of the Education Act 1989, universities “accept a role as critic and conscience of society.”  As a New Zealand citizen, I understand and acknowledge the reasons for this lockdown.  As a legal academic and historian, what has concerned me most is some of the language being used by those currently leading the Covid-19 response.

My argument is that our leaders can achieve the necessary public cooperation without recourse to language which engenders panic and fear.  We can acknowledge the tremendous pressure on our leaders while also providing criticism and analysis.

The Prime Minister made the following statements in her lockdown speech on Monday 23 March.  “We currently have 102 cases.  But so did Italy once.”  “If community transmission takes off in New Zealand the number of cases will double every five days.  If that happens unchecked, our health system will be inundated, and tens of thousands of New Zealanders will die.”

We need to carefully analyse the situation in various jurisdictions around the world.  This includes Italy, Spain and New York City.  But it also includes Taiwan, Australia, and perhaps most importantly, Iceland.  Iceland has a population of 364,000.  It has embarked on a massive testing experiment and has currently tested over 36,000 people, both with and without symptoms.  That is 10% of its population.  As at Tues 14 April, there have been 1720 positive cases, many of which have exhibited no clear symptoms.  Thirty-nine people are hospitalised, with 8 in intensive care.  Eight people have died, giving a case fatality rate of 0.46%, compared with approximately 0.1% for the seasonal flu.  Iceland has implemented social distancing measures, but not as strict as New Zealand.  This information is available at the Icelandic government’s excellent website:

So which case study is correct: Italy or Iceland?  Or does it all depend on how the pandemic is handled?  I don’t have the answer to this but by continually emphasising Italy and ignoring Iceland we lose balance in the debate and go straight to the most frightening case study.  Our leaders should be encouraging New Zealanders to discuss all the possible outcomes.  Informed discussion can reduce anxiety and panic.  As at Tues 14 April, we have 1366 cases in New Zealand.  Fifteen people are in hospital, with three in intensive care.  Nine people have died.  This is a case fatality rate of 0.65%.  So far our statistics seem to reflect those of Iceland, but we have carried out much less testing on a per capita basis and it will become increasingly difficult to know whether a low death rate reflects the nature of the virus or the success of the lockdown, or both.  The situation is so fluid and fast-moving that the statistics in this article will soon be out of date.

There is currently a big debate occurring in some jurisdictions about the accuracy of coronavirus modelling.  In particular, the work of Professor Neil Ferguson from the Imperial College London, has been challenged.  Professor Ferguson’s predictions of chaos from unchecked Covid-19 spread influenced Prime Minster Boris Johnson’s decision to lockdown Britain.  Professor Ferguson has since heavily revised down his predicted mortality rate, albeit in response to the lockdown decision and its possible effect.  My point is not to agree or disagree with Professor Ferguson’s modelling but rather to point out that there is huge uncertainty about how this pandemic will progress.  Our Prime Minister’s recent statements do not reflect the extent of this uncertainty.

We should be able to trust in New Zealanders to debate our situation without worrying that it will undermine our efforts to contain Covid-19.  The debates can actually act as a safety valve as the days of lockdown go by and provide a space for our right to freedom of expression (section 14, NZ Bill of Rights Act 1990).  The debates should include a rational discussion about how Covid-19 is developing in New Zealand in comparison to previous pandemics, such as the H1N1 Swine Flu of 2009, and comparing the different measures taken.

At the beginning of the lockdown, Police Commissioner Mike Bush was another leader in a position of huge, largely unchecked, power.  In response to the question of whether a citizen was allowed to go for a drive to a local beach or park, Commissioner Bush replied: “There’s a short answer to that – no they’re not.” (Interview, NewstalkZB, Wed 25 March).  This appeared to be in contradiction to the Prime Minister’s earlier advice and the instructions on the government’s official Covid-19 website.  The Prime Minister’s advice suggested more faith in the ability of New Zealand citizens to both help contain Covid-19 and keep an element of normality in their lives, not to mention have some freedom of movement (section 18, NZ Bill of Rights Act 1990).  The Police Commissioner’s language reflects an unnecessarily rigid and draconian approach.

This approach was further evidenced the next day when Commissioner Bush stated that citizens should only drive when absolutely essential and that “We may even have a little drive with you to see where you’re going.” (Interview, NewstalkZB, Thurs 26 March).  For those who don’t follow the rules, the Commissioner warned they would be “having a little trip to our place.” (Interview, RNZ, Thurs 26 March).  While police supervision of the lockdown is necessary, I believe the language used here is unnecessarily intimidating and provocative.  While acknowledging that the police needed to set boundaries early on, the instructions can be phrased in a way that reflects trust in the citizenry and reduces fear and anxiety.

This article is not focused on the specific laws involved in this lockdown.  However, on one hand we have the Health Act 1956, Civil Defence Emergency Management Act 2002 and the Epidemic Preparedness Act 2006 providing authorities with their current powers.  On the other hand, we have Magna Carta 1297 (original Charter signed in 1215), Bill of Rights 1688, NZ Bill of Rights Act 1990 and centuries of common law precedents protecting our freedoms as citizens.  Look carefully at the dates of those statutes.  Our fundamental rights go back over 800 years.  Our legal and constitutional traditions emphasise freedom and liberty.  That is the default option.  Only in times of extreme emergency should those rights be limited.  Even in this crisis, it is imperative that we remember our constitutional heritage.

In 1951, Prime Minister Sidney Holland invoked emergency law powers in an attempt to crush the Waterfront Strike.  This clampdown restricted freedom of association and freedom of expression, amongst other rights.  Holland’s actions could be viewed as a cynical power-play to destroy ideological opponents.  During both World Wars, the state took extreme measures to control the population, including conscription.  This could be viewed as a necessary corollary to fighting a war.  A Stuff poll on the eve of lockdown (Wed 25 March) suggested strong support for the government’s initial decision.[1]  This showed a nation concerned for its public health and its most vulnerable citizens.  Our leaders, including the Prime Minister and Police Commissioners, can do more to maintain this goodwill and reduce fear by the language they use and the information they provide.

The nervousness in our society is understandable.  However, the official talk of carrying papers, reporting on neighbours, mobilising the military, and providing police with massive discretionary powers increases this anxiety.  I trust the New Zealand public to form their views on the current lockdown based on its merits without requiring the additional overt and implied threats from authorities.  That trust comes from our shared democratic heritage and commitment to acting in New Zealand’s best interests.

New Zealand’s streets are currently deserted.  Some have made analogies to the New Zealand movie, The Quiet Earth (1985), in which three survivors wander around an empty New Zealand after an apocalypse.  It is now more important than ever to critically analyse the information available and debate the best way forward in an open and robust way.  We need to make sure that we never get to a situation where the analogies are instead being made to another New Zealand movie from long ago.

Sleeping Dogs (1977).

Dr Grant Morris is Associate Professor in Law, Victoria University of Wellington