Collins Judith; Salesa JennySPECIAL DEBATESInquiry into COVID-19 Secondary Legislation—Report of the Regulations Review CommitteeHon JUDITH COLLINS (Chairperson of the Regulations Review Committee): I move That the House take note of the report of the Regulations Review Committee on the Inquiry into COVID19 Secondary Legislation.This is the report of the Regulations Review Committee which has been tabled in Parliament and that report is into the Inquiry into COVID-19 Secondary Legislation. I'd like to—SPEAKER: Sorry. I'm terribly sorry to interrupt the member but I would like members to leave quickly and quietly. This is an important debate and I'd like to hear it. I think we'll reset the clock and we will start this again.Hon JUDITH COLLINS: Thank you Mr Speaker. I so move. This is the report of the Regulations Review Committee into the Inquiry into COVID-19 Secondary Legislation.First off I would like to thank all the committee members as are listed on page 40 of the report and the submitters as listed in the report. Particular thanks to Jason McHerron the barrister who provided advice and substantial assistance in drafting the report. Finally I'd like to thank the clerk and the officials and advisers of the Regulations Review Committee. We lean very heavily upon them and we are routinely impressed with their diligence and their expertise. We are fortunate to have them.We would also like to—well I would certainly like to—acknowledge that this was a very painful time for many people in New Zealand. A very painful time when they felt in some cases disunited or excluded. This is time for us to bring people back together and I believe that the role of the Regulations Review Committee in our report is something that will give people heart.The role of the committee is that we do not review policy but we do look at the secondary legislation to see if it is made in accordance with its empowering provision and consistently within constitutional principles. Therefore it is a very serious report and it is a report that I consider is actually one of the more important reports that we're going to see on COVID-19 bearing in mind we also have a royal commission as well—so put that to one side.So when looking at this I think one of the things that impressed me the most was how poorly some Government ministries and departments actually took the role of providing good secondary legislation and then complying with the constitutional arrangements seriously. Now I understand and I think we can all acknowledge that in many cases the Ministry of Health the main agency in this was under an extreme amount of stress; that they were dealing with a situation that they had not seen before—certainly not in the lifetimes of the director-general or others—and that they were rushing.The problem—and I'm sure that members when they wish to read the report will understand—is that if the secondary legislation is being drafted by ministries themselves rather than Parliamentary Counsel Office there is often not the expertise in the ministry to be able to draft clearly and within the rules that are expected of legal drafting. That was really clear.It was also clear that things seemed to not get better but worse as matters went on. When I think to the criticism of the COVID-19 Response (Vaccinations) Legislation Act—which was actually introduced on 23 November 2021 and had its first second and third readings on the same day—that bill received Royal assent two days later on 25 November and that was actually really almost two years after the full first brunt of the pandemic had hit us. That bill did not go to a select committee. It did not go to the Regulations Review Committee. It was not given the sort of scrutiny that people should expect. I think it would be wrong to say that there was urgency. It was very unfortunate that this happened.When we look at—commonly known as—the traffic light system that was introduced it could have taken another week or two or three or even a month to bring that in. It's not as though we suddenly found in November 2021 that there was a pandemic. We're actually near the end of the worst part of it and I think many people in this House like myself have had COVID a few times because actually the virus has moved on. It has become more transmittable and less harmful for many people.The Attorney-General the Government's own Attorney-General—or Parliament's AttorneyGeneral—criticised it at the time by saying it should have been sent to a select committee. He was right it should have been. It wasn't. Instead what we see in that legislation is that it actually referred to—and the regulations coming from it referred to—all sorts of terms that are unknown at law. Terms like guidance"—that's not a legal term. Terms like "traffic lights". Well traffic lights are known at law as "traffic lights". It was legislation that might have been drafted by the communications team. It was simply not up to scratch and nor were the regulations from it.It would have been better and that's really clear from the review in the inquiry—and I have to say too we take a very non-political approach in this: not apolitical non-political; we work across parties. It would have been much better if people who knew how to draft legislation were drafting it—whether it's that particular Act or if it's the regulations coming from it. It would have been better if it was less focused on communications rather than actually on the law because there were instances where people could have been imprisoned under this legislation and the regulations without very clear guidance from the legislation. In other words very clear words.In addition to that we have made some pretty strong statements about the quality of drafting by the Ministry of Health. That is what's happened: we've over the years enabled ministries and departments to draft their own regulations for legislation that this Parliament has passed. There's a big problem with that apart from the quality of drafting. That big problem is where does one find it? Because what tends to happen is it's put on the website of that ministry or that department—or not; it might not be put there. Or if it is it might be unclear. It might have been put up because the people who put up or upload the information to the website are not necessarily people who understand constitutional law or even the necessity of having it there. Constitutional lawyers are not normally marketers comms people or people who know about those sorts of things. They tend to take things quite seriously for a reason.Then we have as opposed to that Parliamentary Counsel Office drafting where its regulations are put on the New Zealand Legislation website. I would suggest that that is a good idea: that all regulations—all secondary legislation—where people can be subjected to rules should be in one place. We already have a website. We already have a place; it's called legislation.govt.nz. It is freely available to everybody. That's where it should be in my opinion and I think that the committee would be of that view. Because that is one place you should go.We should not have to have people wondering what the law is as they're being arrested for breaching it. We know that ignorance of the law is no excuse at law. But if you can't even find the legislation—the law—that you're accused of having breached how could you possibly be found guilty under it? The answer is I think we're quite lucky not to have had more court cases on this. Because frankly I think if we were not in a pandemic situation there would have been more cases on this. If the cost of actually bringing cases wasn't so expensive we would have had more cases.So there's some things that we need to do and we've seen reviews in this—this review has been ongoing really for quite some time. But bring ourselves back to this: we should not have regulation without people knowing what it is. Regulation should not be made willy-nilly of whether or not they're authorised by the primary legislation.It has to follow a format and there's a reason. It's not because we're being pernif—I can't even say it now—it's not because we're being difficult about it. It's actually because this matters. Law matters. Parliament matters. We cannot simply continue down a path of ministries and departments deciding they'll have the law that they'd quite like and that's really going to spin well. Come back to the law. Thank you.ASSISTANT SPEAKER (Hon Jenny Salesa): The question is that the motion be agreed to."