Connell Brian: Law Reform (Epidemic Preparedness) Bill — In Committee 
Connell Brian: Law Reform (Epidemic Preparedness) Bill — In Committee 
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BRIAN CONNELL (National—Rakaia) 
: 
 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.