New Covid-19 legislation key to reducing rushed law making, public law expert says

Creating new emergency pandemic response legislation will help avoid rushed law making if a new pandemic arises, according to a public law expert.

Legislation that granted the government power to impose restrictions to keep Covid-19 at bay was passed at the start of the pandemic.

It is due to expire in May next year but a spokesperson for Prime Minister Jacinda Ardern said it was under review and may be extended.

The spokesperson said the government wanted to remove powers no longer required, while retaining those necessary to manage the ongoing impact of Covid-19.

Prime Minister Jacinda Ardern signalled yesterday that harsher measures - like lockdowns - were off the table.

Health Minister Andrew Little told Morning Report government was considering the details of any extension of its powers.

"Obviously we are looking at what we need to do as we reflect on the management of Covid to date as we see that we're now seeing another increase of numbers and as we think about what do we need in place in the event that a major pandemic hits us again," he said.

Ardern and Covid-19 Response Minister Chris Hipkins would make an announcement on the details in due course, Little said.

Professor of Public Law Andrew Geddis from University of Otago told Morning Report it was important that questions were raised on how far reaching the legislation should be.

"What we're now looking at is moving into some sort of post-Covid normal, now of course it's not normal because this disease is still around and it still has the risk of rising up again.

"However, the government has said that they don't think that lockdowns are going to be necessary and so the question then arises why have a piece of legislation on the book that in theory gives the government those powers saying to the government you can shut down the entire country if the actual disease threat isn't considered necessary to allow those powers," Geddis said.

He expected the government was now weighing up the level of ongoing risk posed by Covid-19 and what level of response was now necessary and useful.

"Law and especially the sort of government powers that exist shouldn't be like kind of a basement or an under the house place where you just stuff everything you don't need in case you need it in the future.

"It should rather be what powers are needed by government for particular problems and if it's not needed government shouldn't have those powers."

He said government compliance with the legislation's sunset clause was necessary to fulfil a good faith promise.

This meant new legislation would have to be put in place if the government was to have any basis for installing Covid response measures in the future, Geddis said.

"Something has to be done if there is to be a basis for any sort of Covid response in the future whether that simply be requiring masks on public transport or even just the requirement for isolation of Covid, that requires some sort of legal underpinning."

New Zealand's Parliament was "quite remarkable" in that it could pass legislation very quickly as it did with the initial Covid-19 response legislation which was created in three days, he said.

However, there were some downsides to this, Geddis said.

"That sort of really rushed law making though does have some downsides, for one thing the Covid legislation had to be amended multiple times as unforeseen things have arisen, secondly giving government power in an emergency situation where everyone is really really worried about something doesn't really allow for the reflection on what the limits of those powers should be."

He said it was a positive sign that government was making a head start on creating pandemic response legislation rather than having to once again rush through new laws in a time of urgent need.