A critical question during lockdown and any state of emergency has been how does the government decide whether a state of emergency exists?

In any statutory framework of rules, the law governs the operation of government. Constitutional law defines the competences of government institutions. Administrative law controls their everyday operation, and individual rights delineate the outer limits of their powers. Governance must be exercised through rules and not simply through threats or use of force.

‘The rule of law’ is supposed to protect persons by subjecting governmental power to the requirements of legal rules and principles, and the supervision of legal institutions. However, circumstances of emergency challenge the law’s control over government action. The need for a decisive response challenges constitutional structures, favouring swift executive action over slower legislative processes. The extraordinary character of the emergency calls into question the adequacy of the usual legal restrictions on administrative power and the ordinary balance between the empowerment of government and the protection of individual rights.

In NZ an epidemic notice was issued by the prime minister under section 5 of the Epidemic Preparedness Act 2006. A state of national emergency was declared under section 66 of the Civil Defence Emergency Management Act 2002, and the Covid-19 Public Health Response Act 2020 was enacted. A state of emergency can challenge the law and its protections.

This happened for the MCNZ when a recommendation for conference to move to an online zoom format was affirmed. A review of the MCNZ law and the legality of an online conference was to ensure that there were no impediments of any constitutional matters on the rights and privileges of the Ministry or Laity. These are important challenges to the law, justified as exceptions to the rule of law under exceptional circumstances. It is an ideal of legality that goes beyond mere conformity to the rules or status quo because of barring situations.

Exceptions to the rule of law governed by responses to emergency

Legal rules, including those found in statutes, regulations and court decisions, are central to the ordinary operation of modern law. Even in ordinary times, however, legal rules do not fully determine governmental action or judicial decision making. Administrative agencies and courts often employ the exercise of discretion, with varying degrees of constraint. Discretion is inevitable and often a valuable part of the life of the law, especially when there is a state of national emergency. Deviation from the rule of law is granted for narrow and limited use under exigent circumstances only, when the existence of rules and their ability to guide behaviour are prominent features of ordinary legality. Thus, due to the demands of justice or exigency, some balance between the rule of law and discretion is required. Any balance will face challenges of that time because emergencies are often unpredictable but we can be prepared through the experience of the past and prediction of the future.

New Zealand’s current position in the rule of law

NZ has a rich history of an unwritten constitution following in the Westminster tradition. However, there is increasing discussion about the need for a written constitution as our nation develops and matures, especially considering states of emergencies. Any drafting process for a durable constitution should be able to survive situations of turmoil. Most constitutions internationally have provisions that allow for extraordinary powers to be granted, and some basic rights to be derogated from, in situations of emergency, for the public order to be restored as soon as possible.

There are some situations where the normal separation of powers and legal process is not capable of delivering a timely response to an imminent threat to the nation, or the required response requires a temporary departure from legal norms. Any written constitution for New Zealand should have a provision for such emergency measures for the constitution to remain relevant in times of turmoil. Emergency provisions often allow the executive to take extreme measures with fewer, if any, checks from the other branches of government. Although this helps to facilitate a timely response, this power is open to potential abuse. Therefore, it is important that any provision inserted into a constitution for New Zealand is drafted in a manner that limits any potential for abuse, whilst remaining sufficiently wide in scope for necessary actions to be taken when there is an emergency.