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: https://www.covid.is/data.
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
[1] https://www.stuff.co.nz/national/health/coronavirus/120534052/coronavirus-poll-shows-kiwis-back-harsh-measures-but-are-extremely-worried-about-virus
Castalia finds that although Australia’s “activity-based” approach allows a wider range of activity to continue than New Zealand’s “bubble” approach, which constrains activity, the epidemiological results of Covid infection cases and death are similar.
Comparing the New Zealand and Australian states’ responses to COVID-19
An article published on Newsroom this week takes potshots at “contrarian” academics who have chosen to question received wisdom regarding how countries around the world, including New Zealand, are responding to Covid-19.
As one of those “contrarian” academics, I would like to offer some additional perspective.
In an earlier piece for Newsroom “A Different Perspective on Covid-19”, I wrote that no one is suggesting that Covid-19 deaths are not tragic. I pointed out that in focusing on how many people died of the coronavirus around the world every day, we are ignoring the fact that as we devote resources to fight Covid-19, we take those resources away from alternative uses. This diversion will also result in the loss of lives. But those deaths will register less on our collective psyche since they will be diffused, scattered all over the world and will not be reported on in the same breathless manner. I called this the distinction between “identified lives”, deaths that happen right in front of our eyes and within a short span of time, as opposed to the more spread-out loss of “statistical lives” that occur in the background, slowly and inexorably.
The Newsroom article challenging this “contrarian” view and others quotes an infectious disease expert who says: “I’m just opposed to the very fundamental values base that they’re coming from, around how it’s okay to let people die of this because they would die anyway, or something? …This comes down to a values thing and what you’re willing to sacrifice for that.”
I agree. This does come down to a values thing. The position taken by many epidemiologists is this: we will minimise deaths from Covid-19 regardless of the cost. The obvious implication is that this is a comparison of lives lost against dollars saved.
This is completely and utterly untrue.
As I point out in my article, there is a trade-off here. We are going to lose lives no matter what. If we shut down the economy and prevent the disease from spreading, then we save lives that otherwise would have succumbed to Covid-19. But in shutting down our economies, we jeopardise the lives and livelihoods of others.
So, no, this is not about lives versus dollars; it is about lives versus lives.
This is because shutting down the economy has other unforeseen consequences. New Zealand’s unemployment rate could hit 13.5 percent. In the US, it is predicted to climb as high as 26 percent.
Is it so hard to believe that such high rates of unemployment are going to cause poverty, hunger, depression and yes…deaths? It is well-known that unemployment leads to lowered life expectancy. This kind of unemployment tears communities apart and results in long-lasting inequality. It tears at the fabric of our societies, destroys social capital and decimates our shared sense of community.
There are already people struggling with mortgage payments, rent and grocery bills. To what extent these people go under, or not,will depend on the extent of government bail outs. Some countries will do better; others less so.
And, much of this burden is falling and will fall on the socio-economically disadvantaged; the ones who are not able to engage in social distancing; the ones who do not have the luxury of working from home; the ones who are spending four weeks cooped up in cramped spaces without access to unlimited broadband; the ones who live from pay cheque to pay cheque, the ones who need to show up at our supermarkets and hospitals as part of essential services; the ones that need to take public transit in order to do so; the ones who are being exposed to the disease every single day since they have no way out.
The infectious disease specialist goes on to say that some countries are “digging mass graves”. This must refer to countries other than New Zealand since at the time of writing, we have had only nine deaths. Yes, other countries are certainly facing catastrophe but in a far different sense than the one she refers to.
A recent article by Ruchir Sharma in the New York Times sums it up: Some countries face an awful question: death by coronavirus or by hunger?
As Sharma points out, while 15 million people have filed for unemployment benefits in the US, in developing countries more than two billion people are facing unemployment without any social safety net. As of now, nearly 80 countries have approached the IMF for bail-out packages.
What do you think will happen when the healthcare infrastructures of these countries collapse? People will die. They will die of easily preventable diseases like cholera. Children will die due to lack of adequate care or lack of vaccination. Diseases that we thought had been eradicated like measles will come roaring back. Confinement in close quarters, even in countries like New Zealand, is going to lead to a resurgence of tuberculosis; especially among the socio-economically deprived.
Imran Khan, the prime minister of Pakistan, recently said that South Asia is “faced with the stark choice” between “a lockdown” to control the virus and “ensuring that people don’t die of hunger and our economy doesn’t collapse.”
Are these lives worthless? Are these lives not worth saving?
Somehow, it seems to have come to the point where arguing for total lockdown is the enlightened, compassionate view and those questioning the wisdom of lockdowns are heartless philistines.
This is completely untrue. I believe our position is the more thoughtful and rational position; not born out of instinctive gut feelings but arrived at via careful reasoning.
We recognise that we are faced with a crisis. Sure, we need to minimise Covid-19 deaths; but in doing so, let us not jeopardise other lives. And yes, other lives are being jeopardised. We are simply saying that we should be clear-headed about the challenges. In this particular scenario I cannot do better than to appeal to the Benthamite principle of greatest good for the greatest number.
We are also arguing for saving lives; but we are saying let us look for options that minimise lives lost whether from Covid-19 or from our efforts to fight Covid-19.
At the end of the day, it is our position that is more humane and rational. Yes, it is a difference in values; except some are suggesting that some lives are worth saving more than others. We respectfully disagree.
First printed: Newsroom. https://www.newsroom.co.nz/2020/04/16/1130087/the-contrarian-view-on-covid-19
Media Statement: April 15 2020
University of Auckland Economist Dr Ananish Chaudhuri says the immediate emotional power of people dying with the disease could lead New Zealand into an extension of the Covid-19 lockdown with dire consequences, including more deaths.
Chaudhuri, who is currently Visiting Professor of Public Policy, at Harvard Kennedy School, says people over-estimate the costs of immediate and visible dangers, which clouds judgement and calculations of the unseen costs arising from their reaction.
“Extension of the lockdown would aim to save a more certain number of lives now, for an unknown number of lives we will lose over time due to health and economic impacts.
“People have tried to claim that extending the current lockdown is a choice between saving lives and losing money, but it’s not. It’s a choice between losing lives now but losing lives later – and possibly a greater number and a greater variety of otherwise healthy people later.”
“Unemployment is not just a number; there are human health and fatality costs. When unemployment goes up the life expectancy of those people goes down. Furthermore, there are devastating consequences for communities from high unemployment – depression, poverty, violence, falling education.”
Chaudhuri points to research showing that the immediate aftermath of the 911 attacks was an estimated 1500 additional deaths on the road, from people driving rather than flying. It arose because in an environment surrounded by concerns over terrorism, people judged they were more likely to die of terrorism than a traffic accident, or even of the more likely event of respiratory illness or heart attack.
“The problem is that we pay more attention to, and value higher, things happening right in front of us – but we don’t pay attention to, or value, even larger things that happen less visibly or more slowly.”
Chaudhuri says an error is being made by those who differentiate between objectives of suppression, eradication, or mitigation.
“It’s a continuum between doing nothing and doing everything – and there’s different costs along that continuum. The challenge is to correctly perceive and calculate those costs.” Chaudhuri says.
/ends
Contact: Ananish Chaudhuri / 021-258-1525
Study led by John P. A. Ioannidis, Stanford University, finds people <65 years old have very small risks of COVID-19 death even in the hotbeds of the pandemic and deaths for people <65 years without underlying predisposing conditions are remarkably uncommon. Concludes that strategies focusing specifically on protecting high-risk elderly individuals should be considered in managing the pandemic.
https://www.medrxiv.org/content/10.1101/2020.04.05.20054361v1
https://www.rnz.co.nz/national/programmes/morningreport/audio/2018742542/coronavirus-academics-want-much-looser-rules-after-lockdown