Penk ChrisCHRIS PENK (National—Helensville): This is a COVID cluster in the other meaning of that phrase. Not many of us are very familiar with emergency powers legislation. By its very nature it's not something with which we are usually familiar—that's the whole point.The basis uncertain as it is of what we have had so far is challenged by the very notion—as we keep hearing from the Government benches—that we need this to go into level 2. As Mr Macindoe has already said we have already been in level 2 before. If this is a tacit admission from the Government that there was no legal basis from that then I'd rather that we had that conversation openly and honestly and on a basis on which we can understand whether in fact such a piece of legislation as this is indeed required. And I note that legal academics have raised the question—I don't want to mischaracterise their position by stating it as anything other than a question—about the legal basis for what we have endured so far but it's a fair question. It's a question too that implicitly the Epidemic Response Committee has asked. The request for the advice that had been provided—I think I'm safe to say that I don't anticipate that that is going to be forthcoming; and of course we could spend a lot of time talking about the spurious use of legal privilege but I won't do so I've got to maintain tightly on the bill. But it's really important to understand by way of context for all those who are following this debate at home—perhaps struggling to understand why a piece of legislation should be needed to authorise level 2 that was not needed for level 4 or level 3 or before that level 2—and I can only say that I share their bemusement because the Government's position on this is entirely illogical. If the Government believes that the current arrangements are not legitimate then it should say so and we can get on with making a set of arrangements in this bill. But if it is already legitimate for level 4 before that level 3 level 2 then of course this is not needed at all.So why the rush? Well I think the explanation is surely that the Government genuinely believes that if it doesn't pass this piece of legislation in the next 48 hours we won't be able to go to level 2 at one minute to midnight this Thursday which as I say is an extraordinary notion and I cannot believe—I genuinely can't believe—that they would stand up in this House and maintain that. And to mischaracterise the National Party in Opposition as saying that we are somehow arguing for the need for level 2 to be implemented as a matter of reality on the ground is fatuous in the extreme.A New Zealand Bill of Rights Act vetting of this bill is sorely needed. I think I understand from an exchange that took place earlier that has been produced. I haven't seen that. It may or may not be available I don't know. The bill I've seen now for less than 24 hours so I'm trying to get my head round it as best I can in this the second reading speech. Ordinarily of course a second reading speech focuses on what happened at select committee. Well we all know there's not going to be that opportunity because the Government knows better than to bother to listen to those except the select few to whom it has already released the exposure draft. Well I don't think we should have much confidence that the rules that are going to be proclaimed by fiat are going to be particularly easy to understand or follow. We've got such absurdities as funerals and weddings having a more restrictive basis not less. Just to clarify if you're listening at home and you're tuning in trying to make head and tail of this it will be more restrictive to be at a funeral or a tangi or a wedding than it is to go to the restaurant on a Saturday night with your friends—provided that your friends are suitably grouped into 10 people or more—because of course a virus knows the difference between a group booking of 10 and a group booking of 11 within a mass of 100 warm bodies.The rights and freedoms touched upon by this bill are absolutely considerable. And this is the point of course about the need for a New Zealand Bill of Rights Act discussion even; if not a formal document showing that the Attorney-General and others have turned their mind to whether the rights and freedoms are constrained in a manner that is justified in a free and democratic society then at least for some justifications more meaningful than those we've heard tonight would be really really helpful indeed. So just to be clear then two wrongs don't make a right. If the current regime does not have a sound legal basis—and I leave that question open genuinely I would like to know the answer—then surely it doesn't make sense or remedy the situation to have a different regime that's also lacking in its lawfulness or democratic basis. And so on that note I want to touch on a few of the specifics within the bill to the extent that I think New Zealanders are being sold very badly short in terms of what the Government is proposing for itself.First in the general policy statement of the bill itself it states that restrictions will be able to be applied that and I quote do not rely on powers provided by a state of national emergency". Well it's one or the other surely. If the Government wants emergency powers then there should be a state of national emergency. And if there isn't a state of national emergency declared by the Government then it shouldn't be seeking and applying emergency powers. This is an extraordinary disconnect and as I say I genuinely can't understand how they can be so brazen as to set out in the explanatory note to such a reach for power as that.Again you know we read about a modern and consistent set of rules being the recommended practice by legal academics and others. Well if we could see the legal advice on which they're relying that would be a really good start to understanding whether that statement is to be relied upon. The bill again by its own account gives power to set enforceable measures. Authorisations by the Prime Minister or the Minister of Health are two ways by which that can happen. I don't want to unduly personalise the matter but the Minister of Health himself has had—let's just say—"confusion" in relation to rules that have been set at the previous alert levels. And the point is not whether the rules were or were not followed by a particular person; the point is that there was considerable debate for at least two or three days about whether the rules had been followed or not. And this is the person—and again I don't mean this in a way to target Dr Clark but any person whose judgment is to be relied upon to this fundamental extent is being given more power than he or she should be given in any democracy worth the name.In my remaining time I want to talk about again the sophistry associated with statements such as the bill again by its own account being consistent with existing legislative conventions. Well what's consistent with existing legislative conventions is legislation. And if this Government were to come to this House more frequently than it's currently proposing at two-year intervals or perhaps as little as three months which of course is an improvement then that would be helpful indeed. But legislative conventions also include such safeguards as a select committee process not passing everything in urgency within 24 hours or so being subject to a New Zealand Bill of Rights Act vet and so on. And of course the fundamental nature of this bill it's not legislation that we are agreeing on as a House of Parliament about what the rules should be; we're agreeing a set of rules that say that the Government can agree the rules—or actually not even the Government; specific Ministers within the Government. So even Cabinet for all its imperfections isn't all going to get to have a say and I wonder if New Zealand First have worked that out yet. The power to make orders under the bill—again I think we should all be worried that they're talking about exercising expressly certain orders in respect of classes of people; certain businesses; other activities such as sporting events weddings funerals etc. And of course it's this kind of anomaly that we're having to deal with at the moment. A word of advice to any temples churches synagogues mosques and so on: I recommend that you serve some food at your gathering—perhaps you know bread and wafer as communion. Call yourselves a restaurant and you can have 100 people. Finally on the subject of enforcement others have touched on the power to enter premises being afforded to police without a warrant. This is a very dangerous situation and I say that not with any disrespect to our police force but rather precisely because I have huge respect for our boys and girls in blue. I don't think they should be put in the invidious position that this legislation is effectively asking them to be placed in by the Minister of Health or the Prime Minister and so on. And my final question—and I very much look forward to having a conversation with the Minister in the chair at the committee stage of the House—is whether this legislation that's before us now is intended to displace the equivalent existing powers that have been exercised for example under level 3 and level 4 under the Health Act and the civil defence legislation. So many questions and we've got very little opportunity even to ask them let alone have them answered. It's deeply disappointing and as I say a COVID cluster in at least one sense of that phrase."