Saturday, December 4

What are the limits of dissent as NZ locks in, vaccinates and prepares to ‘open up’?

By Andrew Gillespie * from The conversation

The conversation

Analysis – As New Zealand struggles to control a Delta outbreak and accelerate the deployment of vaccination, social cohesion is vital to a successful elimination strategy.

    Prime Minister Jacinda Ardern and Chief Health Officer Dr Ashley Bloomfield are leaving after the Covid-19 response and vaccine update in Parliament.

Photo: Pool / NZME

The political consensus on elimination has endured until now. Unlike the anti-mask and anti-vaccination movements elsewhere, the majority of New Zealanders continue to back the prime minister’s decision to place the country under the strictest blockade.

But tensions over public consensus are beginning to show, with a less-than-ideal parliament, some rejection against closures and agitation to “open up.”

These debates will become more urgent as the government moves toward difficult discussions about an exit strategy and targets for vaccination rates.

Dissent and debate in Parliament

At the highest level, the country has been let down on all sides.

During last year’s national shutdown, the prime minister created the epidemic response committee. It reflected a government confident enough to be questioned in public through a parliamentary body that it did not control. The opposition was constructive in finding the best ways forward. This was the best constitutional government.

This time, all sides of the political spectrum have failed. It began with the decision to suspend the parliamentary session, on the advice of the director general of health. Any such advice should have been given in conjunction with the attorney general, as it has important constitutional consequences.

The epidemic response committee was not resurrected. After a wave of criticism, the government presented a virtual option. Opposition parties rejected this, forcing the government to withdraw a truncated Parliament with improved social distancing rules.

As a result, very few politicians are in parliament; and smaller parties stay away for (non-constitutional) health reasons. This is a bad example of how our country should be governed in a time of emergency.

Dissent in the wider community

Dealing with protests outside Parliament during this pandemic is equally difficult. The important point here is that people have rights, but these rights may be subject to reasonable limits.

All New Zealanders have the right to peacefully assemble in public to protest, but this may be limited by the conditions of where, when and how. Fundamentally, no one has the right to publicly protest in the midst of a national shutdown.

Other rights, such as freedom of expression, remain intact, pandemic or not. However, this is not without limits either. For example, promotion is allowed in a speech about vaccination in a public space, but it cannot be misleading or objectively incorrect.

The above examples generally refer to situations where a minority group is trying to influence the opinion of the majority. But the debate becomes more complex when the majority try to get smaller groups to do things that they disagree with.

Compulsion and harm to others.

Vaccination is likely to bring this problem to a head. The government has published a plan for the gradual opening of the border, based on its elimination strategy. The plan would eventually allow vaccinated travelers from low-risk countries to enter without quarantine.

This will only be possible once a large proportion of New Zealanders are vaccinated. An earlier model shows that for the alpha variant of Covid-19, around 80-85 percent of the population would need to be vaccinated before New Zealand can relax border controls. For the most transmissible Delta strain, the source of the current New Zealand outbreak, we would need to reach 97 percent of the population.

While Australia and other countries are now discussing how to adapt to the continued presence of Covid-19, accepting deaths and hospitalizations, New Zealand so far maintains elimination as a strategy “to eradicate the virus and keep our options open.”

Whatever vaccination goal is necessary, getting there from the current level of 21 percent of the fully vaccinated population will be challenging. The government will likely need to use incentives and some degree of coercion.

Free vaccines, when administered safely and conveniently as part of a public health education campaign aimed at overcoming vaccine concerns, are an effective tool. Lowering the age for vaccines will also increase the overall absorption rate. If all else fails, even cash incentives can help increase voluntary vaccination.

But the compulsion could become necessary. While the general rule is that people can refuse medical treatments, in times of emergency this can be overcome and regulations could be introduced to enforce vaccination. This is where we must be careful. The temptation will be to use compulsion or heavy-handed pressure (such as restricting social welfare) against those who choose not to get vaccinated.

So far, the government has only introduced a law to make it mandatory for certain workers, such as those at the border, to be vaccinated. This is done to reduce the risk to others and is the correct measure to use.

If people choose not to be vaccinated and run the risk of harming others, the government must intervene, explaining the risk posed by the unvaccinated, in addition to their potential self-harm. Then you should pass laws that allow reasonable levels of discrimination against people who refuse the vaccine.

This means that if a risk of harm to others can be demonstrated, it may be acceptable to prevent unvaccinated people from entering restaurants, but not buying food from a supermarket (although strict safety measures can be insisted on). On the contrary, if an unvaccinated person runs the risk of harming only himself, the government should allow him to bear all the consequences of his choice.

* Alexander Gillespie is a professor of law at the University of Waikato.

Gillespie does not work for any company or organization that benefits from this article, does not consult, own stock, or receive funds from any company that benefits from this article, and has disclosed no relevant affiliations beyond his academic appointment.

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