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Cassie Nicholson – Legal First Responder
Government legal counsel Cassie Nicholson, perhaps the key legal figure behind the mountain of legal work required to be climbed during the Covid-19 pandemic, is LawFuel’s Lawyer of the Year for 2020.
Drafting unprecedented, urgent legislation and legislative ‘orders’ in the midst of a pandemic was the principal challenge facing Cassie Nicholson and her team during 2020.
Working in the unglamorous-sounding Parliamentary Counsel Office with a team of 35 government lawyers, she was at the coal face dealing with pandemic legislation involving around 110 pieces of legislation and other legal instruments.
As Deputy Chief Parliamentary Counsel, Cassie Nicholson had to marshall not only her legal and leadership skills, but also her ability to inspire a team facing a world-changing pandemic.
Described by one senior lawyer as a lawyer well known in government circles for being one step ahead, she is an inspirational figure for lawyers, regardless of age or experience.
As a colleague commented to LawFuel: “As a parliamentary counsel drafter her efforts do not often get recognised as she works behind the scenes ensuring a positive and robust footing for legal requirements.
“Whether it’s putting in place contingency planning for emergency resurgence or highlighting where bills and other draft instruments can be improved, she displays honesty, integrity in all her work, including the people she works with.
Her work helping lead the legal ‘charge’ for COVID has perhaps been the most challenging role of her significant legal career.
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A conversation with Cassie Nicholson
spoke with Cassie Nicholson about her role during one of the most eventful and challenging years ever.
What was the nature of the drafting work the PCO did for the pandemic?
There were two main types of drafting work needed for COVID:
First, legislation was needed to implement the lockdowns across our whole economy and place controls at our borders. The main tool used was a type of secondary legislation – relatively short legislative “orders” (though they have grown in length over time).
In addition, a new Act was enacted before we went to alert level 2 so as to provide a more targeted approach to deal with this pandemic, particularly so containing the more proportionate or lower level controls could be implemented for alert levels 2 and 1.
Secondly though, legislation was needed to manage the impacts of the lockdowns and other effects of the response to COVID-19 – for example, since most people were working remotely we needed to remove some requirements for things to be done “in person”.
: That was obviously high-pressure work. How many pieces of legislation needed to be drafted?
Our PCO staff worked at a high level of intensity – many without breaks for many weeks and (of course) while working remotely – to enable 9 Bills and 31 pieces of secondary legislation to be both drafted and enacted (including with short intense select committee processes) within the first 3 months of the pandemic.
One Bill alone was 163 pages long and amended 45 other Acts to enable businesses, local government, and others to manage the impacts of COVID-19 and to mitigate potential impacts on the economy and society.
We had a huge team of drafters, and countless other lawyers across the public sector, working on that.
The first 3 months was the most intense phase of the legislative response, but the COVID order work has actually continued.
Of course changes continue to be needed to adjust testing requirements or border settings as risks change or the understanding of the pandemic develops. PCO staff have been vital in all aspects of this COVID order work – not just in doing the drafting itself, but working with others across government to coordinate responses requiring many different agencies’ involvement often in very tight timeframes.
How did you actually work out the practicalities of how to draft this legislation in these unprecedented circumstances?
: We have had to work very differently to do the COVID order work particularly.
There were many late night zoom conversations amongst teams of people to test multiple scenarios in different contexts.
The orders themselves were unprecedented in recent times – particularly in the early days, we had some really challenging judgement calls. We also had to think carefully how to impose these stringent controls across the entire economy but still try to build in appropriate exceptions and flexibility. There were many late night zoom conversations amongst teams of people to test multiple scenarios in different contexts.
People pitched in from all across the public sector to make it work.
And each time we finished one order, we would know that we had to start the process again almost immediately as each order only lasted for about 2 weeks before it was likely to be amended or replaced as the alert levels changed.
What were the specific challenges you faced apart from the intensity of the legislative drafting work?
The main challenge for good law-making throughout has been the speed with which decisions need to be made and implemented so that – for example – NZ can move to a lower alert level as quickly as the conditions allow it.
This has meant that we have frequently had 4-5 drafters working closely with different roles on an order so it can be done in time – where normally we would just have one drafter. These drafters have also been supported by teams of lawyers from Crown Law, the Ministry of Health and other agencies to help get the legal analysis done and the draft legislation reviewed.
Working closely together on this across government has been vital.
The speed required must have also imposed real challenges in terms of safeguards and other issues?
The need for speed has made it really hard to run all our normal processes, but we have tried to do as much as possible in parallel or with shortened processes. With each order process or resurgence, we adapted and improved processes further.
And there have been lots of safeguards despite the speed. There has been transparency on decision-making with Cabinet papers being proactively released. There was significant commentary from academics on the legislative response and the legality of it, and this influenced further thinking on safeguards.
The instruments are secondary legislation and were reviewed by our Parliamentary Regulations Review Committee and at times adjusted as a consequence. New safeguards were also put in place once the new COVID Act was enacted – in particular, the orders self-repeal if they have not been confirmed by a parliamentary resolution within a set time period.
The other major issue of course was the need to communicate effectively with these major and urgent changes. How was that process managed?
The other really challenging aspect to the COVID orders has been the close interrelationship of the communications and the law:
First, clear comms were vital for the Government’s response and we had the very clear alert level systems. But part of the challenge was to tease out what was appropriate as an actual legal requirement and could be enforced practically as a law, and what should remain good guidance. This was particularly hard to know early on in the response.
Secondly, agencies had to work closely together to make sure that changes to the orders were fed back to those managing the comms.
From a rule of law perspective keeping the comms and the law consistent was vital.
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The whole constitutional and rule of law issue must also have been front-of-mind?
There were some difficult judgements at times. But figuring out how to implement what was needed for health outcomes in the law, but also in a way that was constitutionally fit for purpose, has been vital to the credibility of the response and peoples’ acceptance and compliance with it.
On top of that the Government’s use of its legislative powers has been judicially reviewed (with the appeal still to be heard). It’s been a fascinating time for legislation and the rule of law.
From PCO’s perspective, people felt really good about being able to help and enable the Government’s response in such a critical way. But the work – and responsibility- was gruelling, particularly when everyone was working remotely.
The whole process has stress-tested your office and our own preparedness for pandemics. What are your observations on our situation now and when the pandemic broke?
COVID-19 has not just been a health pandemic that tested our health systems, office and home emergency response systems, but it has also required a massive emergency response from the law-making process itself.
In emergency response terms, I’d say that legislatively speaking NZ was not completely “pandemic-unprepared” but it would have been hard to forsee everything that would be needed for this particular type of pandemic. We had some legislation on the books and some legislative preparation work had been done as the news had been coming and things had been looking grimmer.
But our Health Act is 1956 and the relevant powers have an even older heritage, being similar to ones to control smallpox in 1913. Our Epidemic Preparedness Act (which enabled other laws to be modified if there was an epidemic) had been developed “in peacetime” as it were, and was limited in its scope in various ways.
First – the clear, science-based and apolitical nature of the response. This combined with the clear communication was vital to broad compliance with the response by ordinary NZers.
Institutionally, we were also lucky. We don’t of course have the complexity of a federal system. We had one national response that could be implemented relatively quickly.
Though we found it immensely challenging to centralise decision-making people worked hard across the public sector and make sure the issues across the economy could be considered in making a 4-5 page order.
So we had some existing advantages to deal with a crisis of this magnitude?
I would say that these political and institutional advantages did really help. We needed to stay agile and respond legislatively to the specifics of the crisis as it developed.
So ultimately we enacted a new bespoke COVID Act.
There were 2 main drivers for this. Paradoxically the existing Health Act powers allowed for more significant intrusive measures (stay-at-home orders at alert levels 4 and 3) but not for the more nuanced behaviourial controls needed at lower alert levels – like requiring masks or stopping people from gathering for parties in their homes.
Secondly, the existing Health Act needed modifying with new safeguards, given his scale of epidemic. sufficient criteria or safeguards. The new COVID-specific law moved us into better settings with Ministerial-level accountability, more criteria for making the orders, and other protections.
What are your general reflections on how things were handled and how things could be handled better or differently given the benefit of what you now know?
With COVID-19, we have learned a lot now about what we need to have fit for purpose emergency legislation for pandemics, but also how important the rule of law and good safeguards are
I’m not sure we can ever be ready legislatively for the kinds of powers you need in an emergency of this kind. The Regulations Review Committee has cautioned before against enacting generic emergency legislation. It would certainly be very hard to predict the type of powers you would need or how the safeguards should work.
In fact one risk if we tried to do this may be that we would enact legislation that was too narrow because the breadth of powers might be unacceptable in the abstract or not work in practice. In my experience, while we can learn (and have learned) from each emergency and be better prepared as a result, each emergency has its own features and needs.
For example, bespoke emergency legislation was required for both the Christchurch and Hurunui/Kaikoura earthquakes. This legislation had similar elements, but involved quite different powers and important differences in safeguards.
With COVID-19, we have learned a lot now about what we need to have fit for purpose emergency legislation for pandemics, but also how important the rule of law and good safeguards are to New Zealanders acceptance of that emergency legislation.
I think this has been integral to the success of the response.
What would you say to lawyers considering a career in legislative drafting or in other policy or legal roles in government?
It’s not all public emergencies, thank goodness. But helping to turn policy ideas into law that works for New Zealanders is one of the most satisfying legal jobs there is.
You are in the heart of government – so you get to work on fascinating issues that really affect our world and help analyze and solve problems, all while collaborating closely with great policy thinkers and lawyers from across the pubic sector.
LawFuel’s 2019 Lawyer of the Year: Tiana Epati
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