A more civil vaccine policy

The easy answer is to dismiss the protest, judging it by its worst members. That would ignore many other discontented but peaceful New Zealanders who were there and those who supported them.

Make no mistake, there were those who swung nooses at journalists, shut down businesses already hammered by COVID restrictions for two years, and harassed young women just walking to school. But the overall majority of protesters were peaceful people who were simply and justifiably hurt by being ostracised. They felt they’d done their bit, leaning in to help build a society. Then that society had turned its back on them.

That division has created confusion, some of it put about deliberately. I’m proud to be the only party leader in Parliament who tried to bridge the gap between the protest and Parliament. When I met with protest leaders I said MPs should meet them, if they let businesses function and stopped the threats and abuse.

I was criticized by all other parliamentary party leaders for this meeting. The very next day, they agreed with me, they too would meet the protest if it met the conditions I proposed. There is now a mythology that I somehow opposed meeting them, the basic facts are I was the only one trying to bring the sides closer together, and made more progress than anyone else.

This article is for people who may or may not have been vaccinated, but know the division and violence of March 2, 2022 should never happen again. It’s about how the Government could and should have avoided turning a difficult policy problem into a national disaster.

It draws on a proper understanding of what the job of Government is. Namely, it’s to help mediate genuine conflicts between citizens that can’t be mediated any other way. It’s also to collect taxes and use them to provide effective and efficient services only when those services can’t be provided any other way.

When vaccines arrived as a tool for battling the COVID-19 pandemic, Government needed to mediate the conflict between citizens who wanted the vaccine to protect themselves from the virus, and those who did not. It also needed to minimize the impact of COVID-19 on the healthcare services it provides, especially ICU beds it was constantly short of.

To take the first job, there was a genuine conflict between citizens over the vaccine, and it created real problems for nearly everyone. Imagine a (real) example of a small business owner, a hairdresser. It’s September 2021. Hammered by the Government’s illogical COVID restrictions for nearly two years, there’s trouble brewing amongst her five staff and many customers.

Two staff are vaccinated but don’t really care about vaccination. Two have been vaccinated, and do not want to be in contact with people who haven’t. One believes that vaccination threatens her health, and pressuring her to have it undermines her human rights.

Her customer base is from a suburb where nearly 90 per cent are vaccinated already, and it won’t be long until they reach over 95 per cent. Other businesses, including her competitors, will soon have signs saying ‘we’re vaccinated’ in response to customer demand.

The problems she faced were multiple. Health and Safety at Work Legislation requires a Person Conducting a Business Undertaking (i.e. owner) to take ‘all reasonable steps,’ to prevent harm. Vaccination reduced transmission of early variants, so some staff and customers could rightly claim others getting vaccinated reduced their chance of getting COVID.1

Privacy legislation meant they might not be able to ask if someone was vaccinated, even if it was a health and safety requirement. Employment legislation was unclear on what would happen if the pro or anti vax staff decided to raise a grievance. It was unclear whether asking someone to be vaccinated to comply with health and safety legislation would be ‘justifiable in a free and democratic society’ under human rights legislation.

Now, ACT disagrees with most of these laws. Employment and health and safety legislation are too complex and costly. They make us all poorer than we would otherwise be. But, the reality in late 2021 was that they were the law. Businesses already hammered by COVID restrictions needed to function, now faced with the new challenge of vaccine politics.

What should she do? The conflict is genuine, and she needs to get back trading because she’s using her home equity to support the business right now. That was the problem facing small businesses across New Zealand in 2021. There was a role for Government in helping mediate the conflict, which I’ll come to, below.

Meanwhile, the Government faced its own problem with delivering health services. Due to a series of madcap decisions and general mismanagement, it had fewer ICU beds in late 2021 than when COVID first kicked off. The one thing it could not afford, politically at the very least, was pictures of people gasping for air outside overwhelmed hospitals.

Remember pictures like that out of places like Italy at the beginning of 2020? That’s what created the state of fear that swept country after country. Vaccination reduced severe illness from early COVID variants by around 95 per cent. 2 Instead of 20 people going to hospital, there could be one. The hospitals wouldn’t be overwhelmed. People with other health problems would have a better hope of a hospital bed.

Jacinda Ardern and Chris Hipkins had an answer to these two problems that was simple and wrong. It was summed up by Ardern’s menacing comments in December 2021 ‘if you want to do x, y, or z, get vaccinated!’ They would use exclusion and ostracism to get as many people vaccinated as possible.

Whole professions would be mandated. Activities, such as gathering in groups over a certain size, would be mandated. For many people, large parts of life as they knew it would depend on getting vaccinated. I remember at the time saying ‘she’s gone too far now,’ but I doubt she realized she’d set the timer on her career.

This approach also solved the conflict between people in workplaces and other settings. Everyone would be vaccinated. However, it was the bluntest and most divisive possible way of resolving the conflict.

It’s important to note that the mandates’ legal basis was the COVID-19 Public Health Response Act. We opposed that law. It was Labour, the Greens and New Zealand First who voted the COVID-19 Public Health Response Act through. Without it, there would have been no legal basis for the mandates. At least one of those parties has either forgotten this fact, or really hopes you will.

History may never repeat, but sometimes it rhymes. One day something like this, not quite the same but familiar enough, will happen again. The real question of this article is how to ensure it does not happen again. What would a more civil vaccine policy look like?

Thinking hard about the role of Government is helpful. Jacinda thought the role of Government was to get everyone vaccinated. That’s different from giving everyone the opportunity to be vaccinated. As ACT said throughout October and November 2021, December 1 should have been Freedom Day. We said at that time “[o]nce everyone has had the opportunity to be vaccinated, it’s time to get on with life.”

By that day, everyone who wanted to be vaccinated had already had time. Freedom Day would have meant lifting every restriction. If the Government had adopted ACT’s whole Freedom Day concept, the conflagration on Parliament’s lawn would never have happened. Vaccination rates would have been only a few per cent different from what they reached later in the year.

Had the Government taken the approach that its job was to ensure people had the chance to get vaccinated, as ACT proposed, rather than get everyone vaccinated, then most of the heat could have been taken out of the situation. However, two problems remained.

One, how to mediate conflicts amongst people who disagreed on vaccination in workplaces and other settings, even though there were no national mandates? Two, how to maximise vaccination to reduce the impact on scarce hospital resources?

The problem with managing conflicts was always going the be difficult, because people on all sides held their views so strongly. It existed even if there were no national mandates

because people within workplaces would still disagree. Businesses would still face the slew of health and safety, human rights, privacy, and employment law that all conflicted.

ACT’s policy, released in October 2021, was designed to solve this problem. It set out that each business or organization could make its own policy, based on the level of risk it perceived and the wishes of the people involved. It meant the hairdresser in our story probably would have been vaccine only, considering the views of her staff and customers. But other businesses wouldn’t have been, I’m sure there would have been unvaccinated gyms, hairdressers, and midwives operating.

That doesn’t mean the unvaccinated hairdresser needed to leave the salon in our story, though. As our policy also said, regular testing could be a substitute for vaccination. so if you tested negative 72 hours ago, that would have been more reassurance to people around you than if you were vaccinated six months ago.

With later variants such as Omicron, the vaccine did little to prevent transmission of COVID. Only not having COVID prevented its transmission, which RAT testing can quickly and easily prove.

One final way that conflicts could have been managed, as I said in Parliament in March 2022, was to allow doctors to use their professional judgement in granting exemptions. That would have allowed people like the man I spoke of at that time some relief. It will always be an extraordinary feature of the Government’s vaccine policy that the medical profession so easily allowed its professional integrity to be overridden by the Ministry of Health.

Had the Government adopted ACT’s approach of December 1, 2021 being Freedom Day, lifted restrictions, then allowed each company or organization to make its own rules including vaxx or test, and respected doctors’ professional autonomy, I don’t believe the protest would have happened.

That still left the Government needing to maximise vaccination. Clearly, ostracism was the wrong tool. How else could the Government have achieved its goal of maximizing vaccination rates? Many ways.

It could have engaged the community and built the roll-out ground up instead of top down. It also could have used the GP network, pharmacies, and community groups such as Iwi to help. People who know their patients and their community were largely an afterthought in the Government’s vaccine roll out that centred around large Government facilities.

It could have given a tax break to people who get vaccinated because they saved the taxpayer money. When you insure your car, you can get a discount for locking it in a garage and taking other steps that reduce your chance of making a claim and costing the insurer.

Government is the main health insurer in New Zealand. It could have said: ‘it’s your choice but there’s a cost to a hospital bed, so if you save us money by getting vaccinated, we’ll give you $250 back.’ That would have been far more civilized than what they actually said ‘if you

don’t we’ll marginalize you from society.’ Alas, Jacinda didn’t take up ACT’s vax tax credit suggestion.

Had Government worked hard to make vaccination available while respecting that the ultimate choice lay with the citizen, the protest would not have happened.

All of this still matters because something like it will happen again in our lifetimes. If the Government dealt with the difficult problems it faced starting from a belief in limited Government and individual choice, it could have achieved high levels of vaccination without ostracizing the people. These lessons are important for anyone who never wants to see the kind of division and despair that climaxed last March ever again.

ACT is a party that believes in an individual’s freedom of choice and minimal government intervention. Labour’s legislative overreach led to mandates and ostracism and the divisions that have hugely impacted our previously civil society.

If ACT has a say in the future of New Zealand this article is our promise that this overreach and the blunt medical mandates that came with it will never happen again.