Listening to some of the complete bullshit about the legislation to move to level 2 just made me realise exactly how ignorant some people are of our history and basic science. Viruses and other diseases simply don’t care about abstractions like ‘liberty’ or ‘inhumanity’ or ‘the economy’ or ‘human rights’. They just want to breed. The behaviour of their host victims is the only thing that matters to a virus, bacterium or fungi. Clearly in the last few days that escaped some unthinking critics.
Covid-19 isn’t dead in NZ. All indications are that it has had a reversal in the level 4 and level 3 containment. But is still popping up when someone starts displaying symptoms or when someone gets a positive test. Even with the best of containment, it will probably continue to do so for years or even forever.
Whereas covid-19 looks to be trying to get the same role in humans that it has in bats. It wants to hang around forever in the population quietly breeding. Only occasionally, almost by accident, it gives someone a nasty respiratory cold and pneumonia if they have a depressed or over-reactive immune system. Relatively rarely killing victims. But also giving humans young and old strange blood clots indicating that we don’t know the full range of its behaviour yet. Including long-term effects.
Bats hanging around with no social distancing have far better immune systems than humans. Which means that this zoonotic disease, once it jumps to humans, is like a whole of species experiment to the virus as it adapts to live in us.
That means that our archaic legislation that is designed for short influenza epidemics and isolated live fast and die young outbreaks of measles or diphtheria in a largely immune population simply isn’t up to the task.
Our legislation is out of the ark. It is essentially what was written in the Health Act 1920 in the aftermath of the 1918 influenza epidemic in NZ. The epidemic parts of that legislation were essentially picked up and pushed into the Health Act 1956. But the world of 1956 was far different in NZ to what it is now.
In 1956 we were only getting a total of about 27,000 incoming short-term visitors per year. Most would have come by ship like our immigrants. These days we get close to 4 million incoming short-term visitors annually almost entirely by air, not counting the tens of thousands on cruise liners.
In 1956, private cars were only starting to become used for long-distance travel. I think that the only motorway was the Auckland section between Mt Wellington and Ellerslie. I remember as a kid in the 1960s that the main roads were pretty damn appalling with large sections of State Highway 1 still using gravel. Our main domestic airline NAC, was still running the low capacity world war 2 designed DC3, and charging an arm and a leg for the slow and damn noisy ride. Like 1920, railways were long distance transport of the day.
The Health Act 1956 reflects this. It envisaged the country as separated districts with local district boards of health and their medical officer of health. Each district would largely handle the containment and eradication of their local epidemic with only minor movement from other areas. This basis of the act got tinkered with over the years but fundamentally remained the same as the world changed around it as intercity traffic by plane and road vastly increased, as did the numbers of tourists.
The effect of influenza in 1918 was devastating in the 1.15 million people of New Zealand of 1918.
No matter how the second wave developed in New Zealand, it was many times more deadly than any previous influenza outbreak. No other event has killed so many New Zealanders in so short a space of time. While the First World War claimed the lives of more than 18,000 New Zealand soldiers over four years, the second wave of the 1918 influenza epidemic killed about 9000 people in less than two months.NZ History: The 1918 influenza pandemic – death rates
In Epidemic Preparedness Act 2006, in the wake of the SARS outbreak of 2002/3 recognized that there were some problems with trying to make an act based on the 1920s work in the modern era. So it vested most of the powers of for dealing with epidemics nationally in the Director-General of Health. It was designed to work at a national level with a state of emergency from the Civil Defence Emergency Management Act 2002. But it was still designed for a ‘live fast and die young’ style of disease
But covid-19 isn’t a ‘live fast and die young’ disease like the influenza of 1918 or SARS. Both had a rapid incubations measured in days and single days and influenza had a fairly rapid and robust immune response if you survived. With the 1918 influenza, most areas only got a single epidemic because it spread so widely inside and rapidly that herd immunity was built rapidly. But with both, people who were infected knew about it because those who were infected developed strong symptoms.
Covid-19 is rapid spreader where many of the people who are infectious aren’t aware that they are sick or infectious. With or without the symptoms, people are infectious for long periods of time, giving ample time to spread. We have no real information if this is a stealth-adapted virus that has features that ‘hide’ from the immune system in asymptomatic infected people and don’t produce long term antibodies. Like herpes or HIV or CMV. Quite simply we haven’t seen this virus for long enough to know.
That is where New Zealand has a legislative problem. We can’t stay in a state of emergency across the whole country for a long period of time. As pointed out by many people, you need a functioning economy to maintain the kind of contact tracing and medical systems to deal with outbreaks. But we have no effective legislative framework for doing this over the whole country without draconian state of emergency controls.
Isolation of the type that we have been doing in levels 3 and 4 is something that is effective at slowing or (in our case) effective stalling of the spread of the disease. But it can’t be supported for long.
But we don’t have the required legislation for dealing with a whole of the country epidemic that is slow and long to contain. So that legislation was introduced a few days ago and passed last night in the COVID-19 Public Health Response Act 2020 (note that as of the time of writing some amendments still haven’t been incorporated on the site).
There has been some perfectly valid quibbling that this legislation was rushed through parliament and causes civil liberty issues. But that is because parliament hasn’t been sitting due to covid-19 infection concerns, and this legislation wasn’t already sitting on the shelf ready to go.
Frankly this particular type of legislation should have been done back in the 1980s with AIDs and HIV or anytime after we started getting other ‘novel’ zoonotic viruses entering the human population like ebola, SARS, MERS, nile virus, avian flu, swine flu and many more. About the only thing that is common for these diseases is that they’re different from each other and different from the kinds of diseases that we know from history. Our legislation needed to be more versatile as well – and it isn’t.
Stuff has a pretty good roundup of the valid and spurious quibbles once you get past the inflammation causing dog-whistle headline “Coronavirus: New Covid-19 law gives police power to conduct warrantless searches amid civil liberty concerns“. To me, most of the commentary is just meaningless criticism for criticism’s sake because it says in effect – you should have consulted about this legislation with us.
To me, virtually none of these grand-standers addressed the key problems. The legislation wasn’t already in force because generations of parliamentarians had already failed in their duty of care to provide options to a state of emergency. How do you consult widely when you don’t have a forum available to do it widely – something that usually done in select committee. Which makes this statement and other like it kind of moot.
Chief Human Rights Commissioner Paul Hunt said he had “deep concern” about the lack of scrutiny and rushed process for the Bill.
“For weeks the Government has known that we would be moving to alert level 2. It has not allowed enough time for careful public democratic consideration of this level 2 legislation. There has been no input from ordinary New Zealanders which is deeply regrettable,” Hunt said.
“This is a great failure of our democratic process. The new legislation, if passed in its current state, will result in sweeping police powers unseen in this country for many years.”
“In times of national emergency sweeping powers are granted. There is a risk of overreach. Mistakes are made and later regretted.”
I agree with that and many other statements made in the past few days that this legislation is rushed, hasn’t had a due process, and has flaws. But I can’t see any realistic way of getting widespread inputs from “ordinary New Zealanders”. But in the end, the parts of the Act that he was quibbling about are running a balance between the human rights of those violating orders under section 11 of the act, and the rights of those who’d be afflicted or killed by idiots violating valid section 11 rules.
The legislation has flaws, but the problem really lies with the lack of legislative preparation for anything apart from another influenza or measles style epidemic.
I agree with Graeme Elger’s take (my italics)
Wellington lawyer Graeme Edgeler said the law contained additional safeguards, such as ensuring police reporting why they decided to use the powers.
“But I’m not sure what they would be searching for in people’s homes … What are the level two rules they think people will breach?”
Edgeler,who received a draft copy of the law from the Government, questioned if a warrantless entry power was justifiable for a gathering in a home which broke the rules.
“I think that is where the concern should be,” he said.
“However, I think it is good that there is a new law. This is better than continuing under powers that existed over the past seven weeks, which did not have safeguards and were more extreme and Draconian.”
Personally I’ve seen far too many farcical applications for search warrants by the police that have been rubber stamped by registrars to really ever trust them. They get away with it because neither the courts nor the IPCA actually impose any penalties for police lying and outright stupidity in their applications.
But the important point is the one at the end in italics.
The only realistic alternative under our existing legislation was to retain the state of emergency – which is a really draconian structure. This legislation may be flawed, got a lot of adaption in our house of representatives, and allowed us to move reasonably safely out of a state of emergency.
Hopefully, parliament will now start considering, with public participation, as they did in in 1919 and 1920 how to get reserve powers for this and other possible novel disease responses into legislative toolkit.
In the meantime, we’ll deal with the virus with this imperfect act as a tool.