And who watches over the use of that power? Law professor Andrew Geddis on the way authority operates at Covid-19 alert level four.
Most of the time, we think of governing in pretty immediate terms. How effectively has the minister messaged their transport policy? Does the coalition have the numbers in the house to pass its bill? Will this new regulation affect my coffee cart business?
There’s some reason for that. As a species, we appear to have a tendency to prioritise the near and tangible over the long-term and abstract. And our modern communications environment only intensifies that tendency. Today’s news isn’t simply tomorrow’s fish-and-chip wrapper anymore. Rather, the last hour’s tweet is nothing more than so many electrons on a computer chip … because that’s how the internet works.
But the people actually in government, if they are even halfway decent at their job, have to think in a different way. They must consider not just what is happening now, but what could happen down the line. For which they then have to plan, so that we collectively have some idea of what to do if a black swan really does choose to come nest on our roof.
(On that point, remember way back in 2018 when the government’s coffers were filling up and Grant Robertson was facing intense pressure to spend it all (or give it back in tax cuts), but wouldn’t because of the claimed need to save “for a rainy day”? Well, now it’s gotten pretty freakin’ wet out there, it turns out he was right on the money (to coin a phrase … and thank you, I’ll be here all week).
The announcement that we’re going to shift to Covid-19 alert level four saw the fruits of such planning in spades. Plans that stretch back years, even decades, in recognition of the fact that what we experience as “normal” life actually rests on some pretty fragile foundations. When those foundations look like they are about to give way, government proves its real worth. Just as there (allegedly) are no atheists in a foxhole, there’s precious few libertarian micro-statists during a pandemic.
So, rather than heading down the route of societal collapse and the Bartertown method of resolving resultant conflicts, we’re facing a collective lockdown that will get enforced by central authority, combined with the ongoing provision of essential services and monetary support based on the state’s credit. Underpinning that response lies a bunch of different plans, policies and powers.
Ensuring a “whole of government” response
While no-one expected Covid-19 (cue obligatory Monty Python reference), the threat of global spread of some deadly disease is something that government has consciously prepared for since at least 2002 when the “New Zealand Influenza Pandemic Plan” first was created. As the acknowledgments section of that plan notes, its content is directly influenced by our experience of the 1918 influenza epidemic. Although a combination of effective modern medicine and conspiracy thinking – “how do we know vaccines are really safe, man?” – may have lulled some of us into a false sense of security, the government still remembers that the death of tens-of-thousands always is just a species-hopping mutation away.
This plan doesn’t tell government exactly what to do should an epidemic hit these shores. Rather, it tells each bit of government what its role will be and what it needs to do to prepare to fulfil it so that there’s as few gaps as possible in our collective response. It also sets out how decisions will get made and by whom, and how those decisions will be communicated so that everyone works in a common fashion. And it checks that each bit of government has the powers it actually needs to carry out its role.
In other words, the government doesn’t have to start from a blank page when deciding exactly how to respond to a disease like Covid-19. There’s a template that can then be adapted to meet the severity of the threat at hand. Which in the case of Covid-19 is pretty goddamn severe, which leads to …
National state of emergency
When announcing our immediate shift to Covid-19 alert level three, and impending move to level four, Jacinda Ardern told the media that “of course we are in a national civil defence emergency”. While I haven’t been able to find confirmation that the Minister of Civil Defence formally has declared this exists as per the Civil Defence and Emergency Management Act 2002, I expect that if he hasn’t done so yet, he will do so very soon. After all, if shutting down virtually all of New Zealand for a month to avoid multiple deaths doesn’t constitute a national emergency, then exactly what does?
In a state of emergency, government power to combat Covid-19 expands even beyond the already extensive authority given by the Health Act 1956. In particular, police officers get the independent power to enforce “social distancing” measures, by “direct[ing] any person to stop any activity that may cause or substantially contribute to an emergency.” And the Government is authorised under the Civil Defence and Emergency Management Act 2002 to provide food and shelter to those affected by the emergency, which may become important if commercial supply chains start to fail.
In preparation for moving to level four tonight, the prime minister has declared that Covid-19 is “likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand … significantly.” Or, as my kids might say, *furious eyeroll*, “Duh, Dad!!!”.
Such a declaration under the Epidemic Preparedness Act 2006 then enables ministers to set aside bits of our statute law that are judged an impediment to combating Covid-19. Those powers already have been used to modify the effect of parts of the Social Security Act and Immigration Act.
It’s also why Parliament has been called to meet this afternoon – the Act (as well as the Civil Defence and Emergency Management Act 2002) requires that that this happen, in order to let all our elected representatives hear the reason for the declaration and so why their usual power over the nation’s laws is being gazumped.
The prime minister’s declaration, I suspect, will be unanimously supported. After all, parliament united to give the executive government even more extensive law-amending powers following the Christchurch earthquakes. And the current national threat certainly rivals (and probably outstrips) those disasters. I’ll say a bit more about how those powers will get overseen at the end of this piece.
But before then, it’s worth noting some limits on them. They can’t be used in relation to a bunch of specific enactments:
Consequently, ministers can’t unilaterally change the term of parliament to extend the election beyond the end of this year. If that needs to happen – and it surely has to be a real possibility, depending on how the next month goes – then 75% of MPs still are needed to agree. Which also raises the question of whether the existing coalition should have the moral mandate to govern on past the end of the usual parliamentary term. Questions for another day, perhaps, but still questions we may need to ask.
It would be nice to think that all that is required to knock out Covid-19 is the goodwill and voluntary compliance of each and every one of us. Resisting the temptation of sneaking a visit to a friend’s house for a coffee and chat. Saying “no” to your dad when he says he’ll just pop in for half an hour and promises he won’t touch anything. Committing to completely breaking the transmission chain, so that Covid-19 has nowhere left in which to breed.
But the impending level four lockdown poses real collective action problems. Sure, if everyone does “the right thing”, then we’ll all be OK. What, though, if someone doesn’t do this? In fact, what if lots of people don’t? Will I and my family then be the ones left out, facing disaster because we followed the rules when others did not? And if that’s the case, shouldn’t I break the rules before others do?
It’s this problem that leads to panic buying at supermarkets (as well, apparently, as at gunshops … which indicates where at least some people think things might go). It’ll also be the problem that could cause some people to fail to follow the self-isolation rules in weeks to come. After all, why put yourself through a month of social and mental hardship if you think a significant number of other people aren’t bothering to do so?
Here the police’s role kicks in, for two reasons. First of all, there are some situations where you really do want a firm hand available. To deal with those pushing into a supermarket line because “I waited 90 minutes yesterday and I don’t want to do it again”. To disperse those sitting in a park with a bottle of wine because “the fresh air will blow any virus away”. And so on.
And second, because the existence of such a visible firm hand can give confidence to everyone that the rules that are in place will get followed, so we ought to do the same. I don’t have to rely solely on the comfort of strangers (or, the goodwill and trustworthiness of people I nod to as I drive on my street).
The powers that the police then have to provide that reassurance largely existed before Covid-19 ever was heard of. Fighting over toilet paper in the Pak ‘n Save aisles was an arrestable offence before the virus came to town. Pushing into line was “disorderly behaviour” even when those lines weren’t caused by fear of running out of baked beans. And so on.
But with the various Health Act, civil defence emergency and epidemic notices in place, the police’s powers have become exponentially greater. And they can call on that other muscled arm of the state, the defence force, to bolster their numbers. Anyone wanting an illustration of Max Weber’s definition of the state – “the only human Gemeinschaft which lays claim to the monopoly on the legitimated use of physical force” – need only look out their car window over the next few weeks (but only while driving to the supermarket or other essential service, of course).
Now, a quick coda to this. I don’t want to be seen to be fetishising the strong arm of justice here. All the force in the country won’t work against Covid-19 unless the vast majority of us voluntarily commit to doing the right thing. And over the next four weeks human kindness and concern will matter every bit as much, no … will matter far more than, coercive enforcement of “the rules”. The police on our streets may give us the confidence to show that human kindness and concern – but each of us individually will have to look within ourselves to find it.
Who is watching all this?
Exceptional times call for exceptional measures. And in order to respond quickly to those times, we are going to be devolving a lot of power onto our executive branch of government. We do so in the trust that this power will be used to help us through a near-unprecedented challenge, because only collectively can we do so relatively unscathed.
But. There is a but. History also is replete with examples of turning to authority for security, only to find that the cost of doing so is much higher than expected. And the people who will wield that power are, after all, people. Subject to the same sort of impulses that cause a person to think that they are going to need 60 rolls of toilet paper in their house; or that Asian people somehow are more susceptible to carrying the virus.
What, then, watches over the use of that power by people? Well, it won’t be parliament in its usual form. That institution is being adjourned until April 28 – by which time we hopefully have starved Covid-19 from our shores. In parliament’s place, however, will sit a special cross-party select committee of MPs, chaired by the leader of the opposition, Simon Bridges. Its brief will be to scrutinise the government’s actions in relation to Covid-19; not as a rubber-stamping cheering section, but as a genuine venue for asking “did this need to happen, and why?”
Apparently that committee will be open for public viewing via the web. I’d like to think it will be a reasonably popular thing to watch on the three days a week it sits. Because big things are about to be done to us in the name of our safety. Let’s make sure they are the right things, for the right reasons.
More from Andrew Geddis on Covid-19 and NZ law:
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Letters, April 9: 'Skin is too thin for politics' – Calgary Sun
SKIN TOO THIN
Note to Jeff McLean — Tyler Shandro is not suited for political life. It has become extremely apparent that the only skin he has to put in the game is a very thin skin. If not for COVID-19, this sorry excuse for a politician would have been turfed in a heartbeat. It is absolutely unconscionable to believe that this individual continues to sit at the cabinet table and has the endorsement of Jason Kenney. These are indeed strange times.
(And they’re gonna get stranger.)
USE THE SCHOOLS
Re: Auxiliary hospital beds. I hope we will not need any additional facilities for the COVID-19 pandemic but it seems to me that the now vacant schools could be easily pressed into service. They are public property and have excellent infrastructure already in place. They have many separate rooms, washrooms, showers etc. They could also be easily disinfected and returned to normal use when no longer needed.
(Thanks, everything must be an option.)
NOT THE TIME
Mr. Kenney, give your head a shake! You keep stepping on the doctors and all the other health-care workers while throwing money everywhere else. While these other sectors may need all the help they can get, the health-care sector is under more stress than ever, trying to keep us alive, and don’t deserve your actions. Cancel all your ill-conceived notions about health-care cuts, and when we all get through this terrible time, negotiate with the sector in good faith. Backing off now would be like saying thanks for being there for us. Show your appreciation.
(This is not the time for messing with the health system in any way that doesn’t address the COVID-19 crisis.)
DON’T NEED MONEY
Re: The letter from Dan Olenick on April 7, 2020, about help for seniors. The seniors are still receiving their CPP, OAS, GST refund, other pension and maybe even guaranteed income supplement. Most seniors have no loss of income. Therefore, most of us do not expect any financial help, but would probably appreciate a telephone call or email to check up on us to ensure we are okay or have enough food on hand. Most seniors are more worried about their younger family members and their future. We have lived through the polio, measles, and three other pandemic flus. So, Mr. Olenick please do not expect us to line up for government assistance. Leave that for those who really need it. To clarify, I am in my mid-70s.
(Stay safe, Gwen, and thanks for reminding us all to check in with the seniors in our life.)
PAY US BACK
Now that some municipalities are throwing their staff on the dole, they should return the money they save to cash-strapped taxpayers. With the federal government picking up the cost of supporting these workers, municipal taxpayers shouldn’t get dinged twice for their wages. COVID-19 layoffs shouldn’t turn into a money-making bonanza for municipalities.
(This is going to be so complicated financially, all we can hope for is fairness for all.)
On Politics: Biden’s Big Challenge – The New York Times
Good morning and welcome to On Politics, a daily political analysis of the 2020 elections based on reporting by New York Times journalists.
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Where things stand in the race
Bernie Sanders has ended his presidential campaign, acknowledging in a video address to supporters on Wednesday that “the path toward victory is virtually impossible.” Still, noting his overwhelming support from Democratic voters under 50, he argued that his movement had already won the future. “Together we have transformed American consciousness as to what kind of nation we can become, and have taken this country a major step forward in the never-ending struggle for economic justice, social justice, racial justice and environmental justice,” he said.
The challenge now for Joe Biden is clear: Yes, he’ll need to win the support of moderates and swing voters in key battleground states to beat President Trump in November. But he will also need to earn the trust of liberal voters and those feeling left behind by a political establishment that Sanders has loudly criticized — and that Biden proudly embodies. Biden, the former vice president, must work to energize young people and progressive voters who largely rejected his center-left candidacy during the Democratic primary race. He and Sanders spoke by phone on Wednesday, and the Biden campaign is planning to release digital content arguing that he has moved in Sanders’s direction in policy areas like health care. With the presidential race scrambled by the coronavirus, even if Sanders offers an endorsement to Biden soon, it will probably have to happen in cyberspace — without the opportunity for a joint rally or physical appearances together.
Trump appears eager to dive into a showdown with Biden. At his daily news conference, he spread innuendo about his presumptive rival, wondering aloud why Barack Obama hadn’t endorsed his former deputy. (Obama made it clear early in the 2020 race that he did not plan to endorse a Democratic candidate during the primary.) “It amazes me that President Obama hasn’t supported Sleepy Joe,” Trump said. “When is it going to happen? Why is it? He knows something that you don’t know. I think I know, but you don’t know.” Of course, at this point in the 2016 presidential race, Trump himself had been endorsed by hardly any major establishment Republicans.
Trump and congressional Republicans are pushing for the speedy passage of a $250 billion bill to expand the small-business loan program that was set up under last month’s $2 trillion stimulus bill. But Democrats are saying: not so fast. “The bill that they put forth will not get unanimous support in the House — it just won’t,” Speaker Nancy Pelosi told NPR on Wednesday. Both Pelosi and Chuck Schumer, the Senate minority leader, said they supported the $250 billion expansion, but wanted to see half of that money reserved for businesses owned by farmers, women, people of color and veterans. And they pushed for doubling the bill’s total price tag by adding $100 billion for hospitals and health centers; $150 billion for state and local governments; and a 15 percent increase in food assistance benefits.
Photo of the day
A lawn sign for Bernie Sanders was left in a yard after he ended his campaign in Burlington, Vt., on Wednesday.
Wisconsin Was a Preview of Voting Rights Battles to Come.
The partisan sparring before Wisconsin’s mid-pandemic primary on Tuesday was not just another example of Democrats and Republicans failing to get along.
It was a preview of many similar showdowns that are likely to play out in the weeks and months ahead, as the coronavirus renders in-person voting hazardous and governments grapple with how to adjust.
In Wisconsin, the Democratic governor, Tony Evers, had sought to have in-person voting delayed, but the Republican-controlled State Legislature and the conservative-led Wisconsin Supreme Court insisted on going ahead with it. And in a 5-4 ruling along ideological lines, the federal Supreme Court shot down Democratic efforts to extend the absentee voting deadline — despite concerns about public health and reports that many voters had not received their requested mail ballots.
Republicans have long sought to enact voting restrictions that disproportionately affect racial minorities, poor people and younger voters, pointing to the threat of voter fraud despite the fact that it is very rare. And both parties have long acknowledged that making voting easier helps Democrats.
But the coronavirus has turbocharged this debate, with Democrats and some state Republicans encouraging vote-by-mail measures to make it safer to cast ballots.
Congressional Democrats now say they are committed to inserting voting-access provisions into a coronavirus relief bill. Such a national law could help to prevent Republican officials in key swing states like Wisconsin from restricting access to things like vote-by-mail.
Another proposed regulation would force states to allow at least 20 days for early, in-person voting.
“When you look at what is happening in Wisconsin and what’s going on around the country, we can’t let this happen in the fall,” said Amy Klobuchar, the highest-ranking Democrat on the Senate Rules Committee.
But Trump and his Republican allies have vowed to fight such measures. “Republicans should fight very hard when it comes to state wide mail-in voting,” Trump tweeted on Wednesday. He has recently been more willing than Republicans have been in the past to say outright that he worries making voting easier can help Democrats.
Last month, when Democrats first proposed inserting voting rules into a stimulus bill, Trump objected. “If you ever agreed to it, you’d never have a Republican elected in this country again,” he said.
How coronavirus may finally end the handshake in politics – CNN
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'No easy path': PM Trudeau on national COVID-19 death projections – CTV News
Trump’s chloroquine hype is a misinformation problem bigger than social media – The Verge
Iran anticipates renewed protests amid social media shutdown
Popular Richmond BBQ spot speaks out about coronavirus rumours after man collapses outside restaurant – Vancouver Is Awesome
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