Coronavirus: New Covid-19 law gives police power to conduct warrantless searches amid civil liberty concerns

A controversial new coronavirus law has been hastily passed, despite coming under fire for allowing police to search homes without a warrant.

Despite widespread concern, the Government rushed through the powerful legislation for Alert Level 2, but legal experts say the new enforcement law is better for the public than the extreme emergency powers used under lockdown.

There are now calls for the Government to take the unusual step of returning the law to parliament, so it can again be scrutinised while it's being used.

The law, which passed 63 – 57, had to be hurried through the House as it was required for the enforcement of Alert Level 2 restrictions such as social distancing - set to begin at 11.59pm on Wednesday.

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But after being introduced on Tuesday, the law faced a tirade of opposition as the National party “condemned” it as over-reach and ACT said the Government was ignoring concerns for the basic rights and freedoms of New Zealanders. Both parties voted against the law at its third reading. 

While the Government backed down on some of the “extraordinary powers”, the intent of the bill broadly remained the same. 

A two-year limit on the law was switched to three months, references to police being able to enter marae without a warrant were tweaked, and a requirement that only police operate roadblocks was removed. Community-led roadblocks have sprung up around the country during lockdown, to much controversy.

Attorney-General David Parker said the “bespoke” law would ensure restrictions on gatherings and physical distancing were still enforceable.

There would be fewer restrictions under the level 2 law than was the case during lockdown, he said.

“However, those remaining restrictions still need to be enforceable. Despite claims by some critics, the powers of the police will be narrower from midnight tonight than they have been for the past seven weeks,” Parker said.

“Under this act, police will only be able to enter private homes to break up gatherings that violate the rules on the numbers of people assembling, whereas under the previous powers they could do so for a number of reasons.

Another change would allow police to issue infringement notices, rather than relying on prosecution to enforce the rules, he said.

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.”

Victoria University Associate Professor Nessa Lynch, who teaches criminal law, said the public should be wary of the very significant warrantless search power.

But the powers were not something new and were not unprecedented. 

The Search and Surveillance Act also provided police with such powers — generally for serious offences with urgency, if it was necessary to prevent the offence being committed or risk to life and safety.

“We have all been living under this search power for the past few weeks [under the health Act] It is now just in a specific piece of legislation.”   

She said there were also accountability provisions in the bill with police having to report their use of the power.

But police needed to ensure they did not discriminate against ethnicity, she said.

“We hope that the power would only be used as a really last resort and police use education and other methods … There is obviously a high provision for privacy in your own home in a private dwelling.”

The public should ensure they do not get used to it and it did not become part of the system, she said.

“It is something quite exceptional and not the norm, which makes the time limit approach important.”

Earlier, Prime Minister Jacinda Ardern pointed out the bill was narrower than the emergency powers, which the country had been operating under.

“It is simply not appropriate for us, when we’re at a lower alert level, to continue under national emergency enforcement powers, so it is time to transition.”

“We’ve taken away some of the powers that existed before, because they’re not necessary and they’re not right.”

Victoria University associate professor of law Dr Dean Knight said the bill moved powers away from the director-general of health and into the political sphere, which he said was a good thing.

“But the problem is when you read the bill, it looks a lot more Draconian and ugly than it is.”

It layered constraints expected in a democratic society and had accountability behind it, he said.

The issue with rushing it though was that the Government had not had the chance to gain social acceptance of the law and explain how it operates, he said.

"I wish we had more time to reflect on it. I recommend [to the Government] that immediately after it was passed that it was referred to the select committee for post-enactment review.”

It would be novel but an appropriate way to deal with the rushed law-making and fix the problem from legislating so swifty, he said.

“It is unlikely to be as good as it can with one effort.”

Amnesty International New Zealand executive director Meg de Ronde said there should have been better consultation and public scrutiny on the significant bill.

She urged the Government to refer the Bill to a select committee for a post-enactment review to enable this.

"The Bill seeks to protect everyone’s right to health and life. However, a balance must be struck with other human rights. This Bill introduces significant powers with potentially far-reaching implications, and we do not believe sufficient human rights scrutiny has taken place." 

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." 

Thomas Beagle from NZ Council for Civil Liberties said they supported the call for a later select committee review of the law, after it comes into force.

His council held concerns about the broad powers of entry to homes, businesses, and marae, and recommended collecting and publishing data about the use of this power in order to assist with accountability.

Maxim Institute researcher Danielle van Dalen said New Zealanders deserved to have a say in their own future, and the Government’s use of urgency to pass the law without sufficient public consultation was a worrying example of how the Government was betting that public goodwill would be used to “cover up its own disorganisation".