WHEN HITLER AND STALIN confirmed their Non-Aggression Pact in August 1939, war in Europe became inevitable. The scales of Appeasement having fallen from his eyes, the British Prime Minister, Neville Chamberlain, introduced the Emergency Powers (Defence) Bill, which the House of Commons duly and swiftly passed into law. The legislation provided the British Government with the all the powers necessary to fight a modern war.
Here is a sample of the wording:
His Majesty may by Order in Council make such Regulations […] as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of any war [in which] His Majesty may be engaged, and for maintaining supplies and services essential to the life of the community.
The reference to “His Majesty” should be read as “The Government of the United Kingdom”. An “Order in Council” is pretty much the same as a decision arrived at in Cabinet. What the Act empowered, in its essence, was a Government that could do whatever it considered necessary for the safety of the people, the life of the community, and the defence of the realm.
If you are wondering just what powers the Crown’s “Defence Regulations” conferred upon the Government, then the following should provide some clarity:
Defence Regulations may, so far as appears to His Majesty in Council to be necessary or expedient for any of the purposes mentioned in that subsection:
(a) Make provision for the apprehension, trial, and punishment of persons offending against the Regulations and for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of the public safety or the defence of the realm;
(b) authorise -
(i) the taking of possession or control, on behalf of His Majesty, of any property or undertaking;
(ii) the acquisition, on behalf of His Majesty, of any property other than land;
(c) authorise the entering and searching of any premises; and
(d) provide for amending any enactment, for suspending the operation of any enactment, and for applying any enactment with or without modification.
More than enough power to get the job done, and quite enough to “put a bit of stick about” – if necessary.
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WHEN THE WORLD HEALTH ORGANISATION declared a global Covid-19 pandemic on 11 March 2020, it should have been as clear to Jacinda Ardern’s Government as it was to Neville Chamberlain’s when the Non-Aggression Pact was signed, that the state would have to arm itself with virtually unlimited powers if it was to meet the challenges of the coming emergency.
When fighting Covid-19, the last thing Ardern and her ministers needed was the threat of legal pedants and anti-social elements tossing endless spanners into the anti-Covid works. One piece of legislation, before which all other pieces of legislation – The Bill of Rights Act, The Privacy Act, The Employment Relations Act, The Resource Management Act, etc, etc, etc – were required to give way, would be an essential weapon in the war against the virus.
So, why didn’t we get our own version of the Emergency Powers (Defence) Act? Why were Ardern and her ministers so loathe to put a bit of stick about? The “emergency” legislation that was eventually enacted to authorise the measures needed to combat the pandemic failed to confer upon the New Zealand Government the unequivocal authority that subsequent events have shown to be so operationally necessary. It was almost as if Ardern and her colleagues were frightened of wielding power – even when the safety of the people depended upon it.
Why was that?
Part of the answer lies in the Labour Party’s ingrained antipathy to state-wielded “emergency powers” of all kinds. Whether it be the laws that permitted the enrolment of “Special Constables” in the Great Strike of 1913 – the infamous “Massey’s Cossacks”: or, the Public Safety Conservation Act, which was passed by the right-wing Reform-United Coalition Government following the Unemployment Riots of 1932, and used to devastating effect by the First National Government of Sid Holland against the Waterside Workers Union in 1951; Labour was convinced such powers would only ever be deployed against the labour movement. Fuelled by this historical antipathy (and also by the libertarian spirit animating the Rogernomics Revolution) Labour’s Attorney-General, Geoffrey Palmer, repealed the Public Safety Conservation Act in 1987.
In the 34 years since 1987 that libertarian spirit has only grown stronger. Strongly influenced by the neoliberal hatred of any and all manifestations of decisive state intervention, the libertarian instincts of younger New Zealanders cause them to recoil from the very idea of the state “putting a bit of stick about”. (Unless, of course, it’s dealing with the purveyors of “hate speech”, or women who insist that a man cannot become a woman just by saying so, in which case, the more stick the better!) “Jacinda’s” generation doesn’t issue orders, it has “conversations”. Viewed from an anti-authoritarian perspective, this “light-handed” approach is admirable. From a public safety perspective, however, this political refusal to both demand and enforce compliance is extremely dangerous.
How, for example, is the goal of vaccinating 95 percent of the adult population against Covid-19 to be reached if employers are not given the unassailable legal authority to say “No Jab. No Job”? How is the long-awaited Vaccination Certificate to be made effective if legal pedants are free to test the meaning of “mandatory” in the courts? How would London have fared in the Blitz if vexatious litigants had been free to challenge the Blackout Order as an unreasonable infringement of the fundamental human right to let the enemy know exactly where to drop his bombs?
It is the Ardern-led Government’s unwillingness to follow the Ciceronian legal principle of “salus populi suprema lex esto” – the safety of the people shall be the highest law – that lies at the heart of New Zealand’s rapidly deepening Covid-19 crisis. The generation now in power is, quite simply, politically allergic to adopting the hard-line policies required to rescue both themselves – and the New Zealand people – from disaster. Even when Ms Carrot’s “kindness” is so obviously failing, this Labour Government refuses to reach for Mr Stick.
This essay was originally posted on The Daily Blog of Friday, 8 October 2021.