Law Reform (Epidemic Preparedness) Bill

BRIAN CONNELL (National—Rakaia) Link to this

The Law Reform (Epidemic Preparedness) Bill is complex legislation, and it has been quite difficult for colleagues to navigate their way through the bill to put in place something that is meaningful and pragmatic. I say it is complex legislation because it is part crystal-ball gazing—“what if” scenario planning—and part pragmatism and plain old common sense.

I did not have the opportunity to take a call on the second reading, so I want to take a moment or two to commend my colleagues on the Government Administration Committee for the constructive way in which they worked on putting this bill back before the House. Can I also recognise the officials, three of whom have just come into the Chamber, for the quality of their advice. They demonstrated that not only were they good at speaking, but also they were extremely good at listening and going away and considering the committee’s concerns. To the officials I extend our gratitude. I extend gratitude also to the Regulations Review Committee for its advice when we referred to that body, and also to Sir Geoffrey Palmer and his team for the quality of the advice that he provided in trying to overcome an issue that had brought us to an impasse. His advice and that of his team was quite expert.

I turn specifically to the bill. The question posed is why we need an epidemic preparedness bill. The answer, of course, is that it is simply prudent to plan. It is no secret that we live in fear of avian flu—an issue that I am sure goes through our conscious or subconscious mind regularly when we travel. When we hear of outbreaks of this overseas we are concerned about not if, but when it might arrive in New Zealand. Without being alarmist, when we look at some of the worst-case scenarios, we see that if we do have a pandemic that we cannot counter, it is possible that up to a quarter and possibly a third of our population might be infected or could, in fact, vanish. If we look at the example of the 1918 flu, we see that is in fact what happened. Approximately a quarter of the adult population was struck down. It was not just the elderly or the very young who were vulnerable, but, significantly, in that episode it was young men who, for some reason, were more affected.

I do not for a moment want to leave the Committee with a view that this is imminent, but as I have said it is certainly prudent to plan. It is also prudent to point out to those in the Chamber that if we look at avian flu specifically, we see that it has not yet been transmitted human to human, but we do not want to rest on our laurels.

I now turn specifically to clause 5 as it was introduced, which empowered the Prime Minister to issue a notice in the Gazette, on the written recommendation from the Director-General of Health, declaring that he or she was satisfied that the effects of an outbreak of an infectious disease are likely to disrupt or continue to disrupt the essential Government and business activity of New Zealand. After considering that issue in some detail, the committee recommended a number of changes to this provision.

The first of these is that we recommend an amendment to clause 5 to allow the epidemic notice to be issued by the Prime Minister, with the agreement of the Minister of Health, on the written recommendation of the Director-General of Health. That is a very important recommendation, because essentially we are saying that we want to ensure that another Minister is involved in the decision-making process, and this would reflect the accountability of the director-general in the decision as to whether to issue an epidemic notice. The second issue of note is a recommendation including a provision ensuring that, in addition to notifying the epidemic notice in the Gazette, the Prime Minister is required to notify the House of Representatives as soon as is practically possible that an epidemic notice has been issued or extended. These matters may seem dry, but they go to the heart of executive accountability. So those two recommendations are made.

Another issue of note is about quarantinable diseases. The committee proposed that the term “infectious” disease be changed to “quarantinable” disease, as listed in new Part 3 of schedule 1 of the Health Act 1956. This includes avian flu, plague, and yellow fever among quarantinable diseases. This clause responds to the concern raised about the possible application of this provision to any infectious disease. The issue of depriving people of their liberty—that is, quarantining them—is one of those things where we, as lawmakers, have to balance up between individual liberty and the safekeeping of the community at large. It is an issue that exercised a lot of the committee’s time, and again it is an issue of some importance. I point out that it is only highly infectious diseases that will now come into that category.

Another issue of importance, which I want to take a little time to examine, is prospective modification orders. These prospective orders would come into force only once an epidemic notice was in progress, and a clause 5 epidemic notice was declared by the Prime Minister with the agreement of the Minister of Health. Prospective modification orders, or orders in advance, are sensible, prudent planning mechanisms. It is just another means of forward planning. The view of the committee was that once a pandemic strikes, it would clearly be too late to try to plan retrospectively. It would also make it very clear what stakeholders were required to do if a pandemic struck, and therefore, in our view, this would improve compliance. That is a very important issue. Despite our planning, not every contingency will be foreseen, and therefore immediate modification orders may well be necessary.

I want to draw out this distinction for members of the Committee. Advance orders, as the name suggests, are where we can plan in advance, and through the due process of parliamentary oversight we can make those legislative changes, but during a pandemic, an outbreak, when the country is in crisis, it may be necessary to make decisions on the run. The commentary, under the title “Immediate modification orders made during an epidemic”, sets out the procedure for immediate modification orders. I have to say that this is one of those issues that exercised the grey matter of the select committee. What we were planning for here was the possibility of decisions being made without parliamentary oversight. It goes right to the heart of the role of the House of Representatives. Our view, finally, was that it was a last resort. A pandemic would have to be raging before this took place.

Having said that, it still bothered me that the House of Representatives was not going to be involved, and that is why this issue, as I have already pointed out, is quite difficult and complex. In order to attempt to overcome this issue, the select committee in its report back to the House wrote, under the heading “Parliamentary scrutiny of immediate modification Orders in Council”, a proposed solution: “We recommend a more expedient scrutiny process to disallow these regulations by way of a disallowance resolution on a notice of motion of any member of the House within six sitting days of the immediate modification orders being made.” We think that is something the Committee needs to consider. The report then stated: “The House should be able to debate the notice the day after it is lodged; and, to ensure it is debated, the motion should have priority on the House Order Paper so that it is dealt with within the 6 sitting days. We note that Standing Orders will need to be amended for this purpose, and we will write to the Standing Orders Committee to recommend that this be done.” I will recanvass that very quickly, if I may.

We are saying that orders made on the fly under difficult circumstances, when a pandemic is raging, may not have the scrutiny of the House of Representatives. In order to overcome that issue it is suggested that, as soon as practicably possible, under the disallowance regulations the issue can be dealt with. That is something we would like the Minister in the chair, Pete Hodgson, to take note of.

One last issue, if time permits, relates to summoning Parliament or recalling the House during an epidemic. It is possible that the House will not be able to be recalled, and the committee suggests a solution in the commentary. We state: “We believe that it should be the Speaker who makes this decision on the advice of the Director-General of Health. We believe that the mechanism providing for a decision to defer a sitting of the House should not be a legislative matter, and would be best left to the House’s own rules.”

I conclude by saying that the bill is complex. It canvasses a whole host of difficult issues. I believe that the select committee, working in a very constructive way, has done its best to put before the Committee a workable bill. I would not be surprised if, in the unfortunate situation that this bill gets tested, we find things that have not been dealt with and that we will have to revisit. But with the best will in the world by the parties—and I mean that; I think it has been with the best will in the world—this is the best legislation we can put before the Committee for consideration at this point in time.

DARIEN FENTON (Labour) Link to this

I am pleased to have the opportunity to speak on Part 1 of the Law Reform (Epidemic Preparedness) Bill. I ask members to forgive me if I repeat some of the things my colleague Brian Connell has said in terms of what is in Part 1. I think it is important to do so because, as my colleague has said, this is an important bill that the Government Administration Committee has worked hard on, and we need to understand what it is we have all agreed to.

Several members talked at the second reading last night of how an epidemic caused by either avian flu or another infectious disease has the potential for enormous economic and social consequences. Labour’s whole-of-Government planning is well advanced, and this bill provides for the legislative nuts and bolts needed should we be confronted with an awful emergency of this type.

Some commentators have suggested that an H5N1 pandemic could be similar to the most serious influenza pandemic on our record, the 1918 Spanish flu. Clearly, that is on our minds, because many people have spoken about it. It spread around the world in a year, killing millions. It hit New Zealand in 1918 and killed 8,600 people, including 2,160 Māori. The Government had to close schools, theatres, and hotels, and many businesses were closed because of staff illness, leading to shortages of basic supplies. Schools and halls were turned into makeshift hospitals, as the virus spread very quickly. Sometimes people died within a day of their symptoms first appearing. Today, we can only imagine what that might be like.

An Epidemic Commission was set up in 1919 to investigate the cause and course of the epidemic. This led to major reforms of the health system, including the passing of the Health Act 1920. As we know, that Act was updated in 1956, and today we are considering modern, relevant, and vital legislation that will leave the country better prepared than it was in previous epidemics. It will also enable the Crown to provide a proper response should there be a human outbreak of avian disease or a similar disease capable of becoming an epidemic.

Part 1 enables the use of emergency powers. The purpose of the legislation is to ensure that there is adequate statutory power for Government agencies, firstly, to try to prevent the outbreak of an epidemic in New Zealand; secondly, to respond to an epidemic in New Zealand; and, thirdly, to respond to certain possible consequences of an epidemic, whether here or overseas. The trigger mechanism includes the added protection of a requirement for the Prime Minister to have the agreement of the Minister of Health, and the written recommendation of the Director-General of Health. That also ensures added accountability. As my colleague has mentioned, the description “infectious” disease, in clause 5, has been changed to “quarantinable” disease, which includes those listed in Part 3 of schedule 1 of the Health Act. Those diseases are dreadful things like cholera, plague, and yellow fever, as well as bird flu.

The select committee recommends substantial amendments in clauses 7B to 9 to include modifications through Orders in Council in advance of any epidemic, and modifications while an epidemic notice is in force. The making of prospective modification orders will ensure proper scrutiny through the Regulations Review Committee and the Regulations (Disallowance) Act 1989. It will also enable health authorities and others to learn in advance what they are expected to do before an epidemic comes. Prospective orders would come into force only once an epidemic notice had been declared and the epidemic was in progress. Under clauses 9A to 9H, immediate modification orders will be subject to parliamentary scrutiny by way of any member of the House giving a notice of motion to disallow them. As the Minister of Health mentioned last night, it is intended to amend the Standing Orders to make the disallowance motion debatable and to give it priority on the Order Paper.

Clause 9I enables judges to modify the rules of court during an epidemic in the interests of justice, so as to take into account the effects of the quarantinable disease, but certain common law doctrines are not affected—that is mentioned in clause 9J. Finally, clause 9K requires that where people’s rights, remedies, courses of action, or legal situations under an enactment are affected by a modification order, they must be told of their modified rights.

The members of the select committee spent a considerable amount of time working on the amendments to Part 1, and we appreciated the advice of the Law Commission and the officials so as to get a reasonable balance between the emergency powers, which can be quite draconian, and ensuring accountability through parliamentary scrutiny.

JUDY TURNER (Deputy Leader—United Future) Link to this

I rise on behalf of United Future to speak to Part 1 of the Law Reform (Epidemic Preparedness) Bill. I thank the Government Administration Committee for graciously including me in its proceedings. I was serving on two committees on the same day for much of the deliberations on this bill, and it was a bit of a juggling act, but I appreciate being included and having the opportunity to speak to this bill, which I have had a bit of an interest in. I also thank the officials for their patience, because this was a very tricky consideration. We are talking about rather enormous powers under very, very difficult circumstances, and at this stage we cannot anticipate the full impact of those circumstances.

This issue is really interesting. What alerted my interest in it, and why I asked for the opportunity to sit without voting rights on the committee, was a briefing I was given by the Ministry of Health some time ago. The joke at the time was that bird flu was Y2K with feathers on. We take a risk in underestimating the importance of doing some pre-planning on this matter. Certainly, the facts are that a pandemic is different from any other type of flu that we may be familiar with. It is not seasonal; it can come at any time. It may impact on any age group, and it is often difficult to predict which group will be the most seriously affected. If we look at the 1918 Spanish flu, we find that young men, for instance, died in larger than expected numbers. Certainly, as has been mentioned by a previous speaker, Māori were badly hit by that pandemic at the time.

There is usually a very high rate of attack and a high rate of fatalities, and a pandemic often happens in a series of waves rather than as a one-off event. The thing I found most sobering was that when I was briefed by Ministry of Health officials, they talked very directly about the fact of not if this happens, but when. Statistically, there are several pandemics per century, and, apparently, we are overdue. Therefore, we must take this matter seriously.

I join with other members who have thanked Sir Geoffrey Palmer and his team for the work they have done. As we looked at the level of intervention that was possible—and suggested at the beginning of this bill—it was very helpful to get some very steadying advice from people like Sir Geoffrey. He talked about the fact that there will be two main types of regulations, one of which is heath. He rightly suggested that health regulations were likely to have the highest priority in terms of the type of work that can be done in advance—between now and whenever a pandemic may be called. These are advance modification orders.

There are other matters that the bill in its current state addresses, as we anticipate some of the consequences of such a crisis within New Zealand. Just this morning I was talking with the Hon Peter Dunne, who said that his revenue department was already beginning to realise the serious implications for revenue collecting within this country if a pandemic were to occur—if the numbers of people infected were large, and if it occurred over a sustained period of time—and how the department could respond to that. These are the kinds of whole-of-Government implications that cannot be understated.

The Law Commission did a report some years ago on emergency powers. The basic recommendation was that being specific in our pre-planning around legal matters is very important. We were told that there are something like 11,000 principal statutes in New Zealand law. The thought was that rather than trying to amend all of them, it would be important to anticipate areas—health is the particularly obvious one—where some action will need to be taken and where powers may need to be increased for the season of the pandemic. This would be the case in other areas such as immigration, for instance, where we can anticipate the need for border control.

It is important to remember that there are several things that planning for a pandemic involves. First of all, we will try and keep it out of New Zealand, and we need laws and powers to do that. Certainly, we want to keep the pandemic out as much as we can through border control. Once the pandemic is established we need to stamp it out, by whatever means we possibly can. We need to manage it, in terms of managing people who are ill. Obviously, the way we manage a pandemic is different from the way we manage any other health problem and crisis that we face. Finally, we need to recover from it. In the select committee we talked about the powers, and the fact that from the moment the Prime Minister and the Minister of Health declare a pandemic we then go through a series of waves of infection, during which time those powers will need to be implemented to try to maintain, control, and contain the pandemic as best we can.

Another set of powers may need to come in to deal with the consequences and the mop-up that will need to happen. We talked about the need to bring in tighter controls and, at the appropriate time, to relax them as we start to move out of pandemic mode and into recovery mode. It is one of those things that there is a lot of guesswork about, based on other experiences and historical accounts we have of pandemics. We need to understand that what we will be dealing with will be novel. It will not necessarily be like anything we have known to date. We will be dealing with people who are very sick and dying, and we are talking about something that will be easily transmitted between humans. Therefore, the kinds of social contacts that we enjoy will need to be restricted.

In my own mind I was thinking about several natural disasters that I have lived through in the area where I live—the Edgecumbe earthquake, floods, and things like that—where communities have rallied together and provided support for each other. It occurred to me that our natural tendency as human beings when we are in a crisis is to pull together. Yet this crisis would require the very opposite response, whereby people would need to remain isolated from each other, yet somehow provide support. So a pandemic would require a whole different set of skills and responses that are, at times, almost counter to what it means to be human and help other people. It would require people to respond in such a way as to avoid civil disobedience and all those kinds of things.

During the aftermath of the Edgecumbe earthquake, I remember being disturbed by the number of people who struggled to obey the most simple little rules that were put in place for public health reasons. For instance, we were not allowed to flush toilets until we knew whether our sewerage system had sustained damage, we were not allowed to use water excessively, and we were encouraged not to shower on a daily basis but to try to stretch that out. I could not believe the number of people who thought they could be the exception to the rule. They thought that it would not hurt if they flushed the toilet only a couple of times during the day, or they soaped up and jumped under the shower for only a minute; they thought that that would actually be all right. I was genuinely appalled.

Having lived through that experience, I understand that the types of constraints that need to be brought into place to contain something like a pandemic will not be easily complied with. People believe they are a law unto themselves in those situations, so sometimes when we talk about fairly Draconian powers we have to understand how those powers may genuinely need to be implemented in the middle of a crisis.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

Kia ora, Mr Chairperson. Kia ora tātou i te Whare. I was listening on the radio today to some people talk about the whole pandemic issue. They were harking back to the flu epidemic of 1918. A guy was saying that Australia did better than us in terms of the fact that fewer people suffered there than here. The reason for that was that the Australian authorities knew about the epidemic early, they told their people about it early, and they set up blockades early. Because people knew early, they understood what was going on and reacted positively.

I mention that because I know that what Judy Turner was just talking about will absolutely be the case in this country. People will panic, and they will not listen. For some strange reason, we have the belief that as long as all the officials know, then it is OK. But it will not be the officials—the ambulance drivers, the police officers, the Fire Service officers, or the health department officials—who panic; it will be everybody else. It will be not just Māori; it will be Pākehā and everybody else. Panic will happen, because there is no comprehensive communications strategy to alert the nation to what may happen.

I take the point that we do not want to get into scaring everybody and panicking them too early, but there is no reason why we cannot be intelligently feeding them information about what may happen. Saatchi and Saatchi could be paid a decent sum of money to do a campaign that runs for a whole year, if necessary, so that by the time that year is over, the whole nation understands what it should do if a pandemic comes. But if a pandemic hits tomorrow, there will be rampant panic right throughout the country. In the far north, for example, where I live, nobody knows what is going on. I have just got off the phone after talking to a friend of mine who works for the police. She said that the council has had training, the police have had training, and the Fire Service has had training. That is fine, but when I asked her whether ordinary people knew what to do, she hesitated, then said “Well, no.” And that is the concern.

This Parliament needs to take control of the situation and ensure that a proper communications strategy is put in place. There is no point in having all the doctors, scientists, and everybody else understanding what the problem is. It is not even worth knowing about the waves of a flu epidemic. What we need to know is that the people understand what will happen. Judy raised exactly the point that in times of crisis, people naturally want to bond together. There is no public education as to how to bond together without people all getting together. There is no strategy out there to convince people to stay close to their phones. There is no strategy to teach people to use their computers to talk to one another when a pandemic goes down, so that they can remain in touch, and feel comfortably in touch, with their loved ones.

I know, for example, that if a pandemic hit now I would be on the first plane north, if I could be; if not, I would get a cab or a rental car, or I would steal a car—I would do whatever it took to get home. If somebody was to stop me on the road, I would just go around that person—I would not listen. There is no strategy to convince me that my family is all right. There is no communications plan that suggests to me that I should stay in Wellington because my family will be all right.

Of course, because people do not know what is going on—and they do not—and because they do not know what is going to happen, they will break the rules. I know that this issue concerns Māori particularly, because when the first person dies for whom a tangi will not be allowed, there will be chaos. Relations will come in from all over the place, to try to get that body. There will be chaos; there will be panic and violence. And I suggest that all that is required is a simple injection of funding to ensure that there is a decent communications strategy. Thank you, Mr Chairperson.

BARBARA STEWART (NZ First) Link to this

On behalf of New Zealand First I am pleased to take a call on Part 1 of the Law Reform (Epidemic Preparedness) Bill. We must, like every other party, congratulate the Government Administration Committee on the great job it has done. It has been quite interesting to hear from other speakers that the memory of previous epidemics looms large in the minds of all of us here in this Chamber, particularly the flu epidemic at the end of World War I.

Fortunately for us or, perhaps, unfortunately—one can argue both sides of that argument—we have no real experience to draw on in this particular case, so of course the planning needs to be very thorough. Fortunately, the majority of us did not experience the Edgecumbe earthquake. It was very interesting to hear what happened there. But when we think back to the tsunami on Boxing Day 2 years ago, it was quite interesting for us to hear that some people actually went down to the beach to look at that wave of water approaching. Some people wanted to be part of it. The call to go to higher ground was basically ignored; people believed they would be safe.

In the case of a flu epidemic we would experience much the same problems here. We do not really know enough to be thoroughly organised, so we need legislation of this nature to be put in place early. We do not want to have to organise ourselves right at the time of a flu epidemic; we need to be organised prior to that point. It is very good that the select committee and officials have identified problem situations, particularly those regarding the summoning of Parliament or its recall during an epidemic.

In any situation such as this, power is required by the Prime Minister, the Minister of Health and, obviously, the Director-General of Health to put this plan into place. We know that we may need to delay the sitting of the House of Parliament. I was quite interested to read in the commentary that there is currently no mechanism to do so when the House is adjourned, or to delay Parliament’s summoning beyond the 6-week deadline after the return of the writ.

Another issue to be considered was where the House should meet, because obviously travel will be very challenging. We have heard from previous speakers that taxis, air flights, trains—any way to get home—will be the priority. It will be very difficult to return to Wellington to meet in the one location.

So we believe that Part 1 is as thorough as it can be at this particular point in time. New Zealand First supports this part.

Hon PETE HODGSON (Minister of Health) Link to this

Part 2 does not need an awful lot of debate, but it seems that because there is a Supplementary Order Paper coming at the end of it, I should make a few remarks. The Supplementary Order Paper makes minor changes to the very good work done by the Government Administration Committee, and I take the opportunity to thank the select committee again for its work on what has been a difficult piece of legislation, and to acknowledge the work of the Law Commission, and in particular of Sir Geoffrey Palmer, in dealing with some of the difficult constitutional matters.

I also acknowledge, as they are in the Chamber, the work of a huge number of officials, especially in the calendar year 2005 and the first half of 2006 as we got this plan together, and indeed the work of people from all around the hospital sector and other sectors in this country who have put together what is probably the best pandemic plan in the Western World—if not the best, then one of the best.

I say to my colleague from Kaitāia that, yes, I am sure that a lot of people do not know what to do, but one thing he can do when he goes home this weekend is, first, make sure that in his house he has a bag of rice, some water, and some Panadol—and, in case it is not a pandemic but actually an earthquake—some batteries, and so on. Then he should ring again the person he was talking to, and invite her to do the same thing. These are basic things we can all do, and they are a start. I commend this legislation.

LINDSAY TISCH (National—Piako) Link to this

National has supported this bill right through. I acknowledge the Minister’s comments on the Government Administration Committee, and on the work that officials put in. National had a major input into this bill, with Shane Ardern being the chairperson of the select committee, and Brian Connell and Sandra Goudie making contributions. National has supported this bill right through. It is important legislation, and it is very interesting that the whole Committee is supporting it tonight.