GUEST BLOG: Ian Powell – When forensic lawyer forgets forensic mind

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On 2 November BusinessDesk published my article on the politics of the Labour government’s pandemic traffic lights: 

I argued that the traffic lights were an important part of an after the event narrative to publicly rationalise a major error by the Government to take Auckland out of Level 4 lockdown too early.

This decision was also contrary to the advice of its modellers. The effect was to help let the delta variant of Covid-19 run amok and most likely lead to the combined length of lockdown (Levels 3 and 4) being a month longer than it needed to be.

This led to a published firm rebuke from high profile Queen’s Counsel Hugh Rennie. Although I don’t know Rennie personally (two brief discussions over three decades from recollection) I know his reputation as an admirable lawyer with a forensic mind. One would not relish being cross-examined by him in court.

Flattered but…

In a strange kind of way I felt flattered that such an impressive figure would deign to respond to something written by a mere mortal. But I was also struck by the lack of forensic analysis in his response. I would have anticipated better.

Rennie’s response is repeated below in full:

The weakness in this analysis is that it assumes that the government had the actual ability to enforce a Level 4 lockdown when you say it should have occurred, and (even more relevantly) that under such a Level 4 lockdown the public could live viably with jobs to go back to. Neither was the case. The government had to balance the calculations of the scientists (mathematics not modified for the real world) against what the community would accept, the authorities could enforce, and the country could afford.

What is world leading this time around is the remarkable tolerance shown by the vast majority of New Zealanders, when the need now for that tolerance ais [sic] caused by very late vaccinations programmes which should have been well advanced months ago. 

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Politics did not replace the health of the population as you claim, but rather pragmatism has prevailed over unworkable theory.

Dissecting his critique is revealing as it represents a thought process based on assumptions and anecdote rather than rigorous forensic analysis.

Level 4 lockdown

Rennie claims I assumed that “…the government had the actual ability to enforce a Level 4 lockdown when you say it should have occurred…”

If the Government had followed the expert advice of its modellers (as it had previously with success) then this would have been for a little over two weeks followed by a shorter time in Level 3.

The Government was commending public compliance with Level 4 at the time it lowered the alert level. It was open about its confidence on the success of Level 4 and how Level 3 would then work. However, the immediate effect was to increase people movement, a pre-condition for virus spread.

Further, the Government’s articulated confidence had the inadvertent effect of encouraging public complacency.

The inevitable outcome was significantly increasing daily infections rates that have continued ever since. There was a leadership failure to recognise that Level 3 was ineffective once delta was widely circulating. It was getting close to effective containment at least but was not quite there when it lowered Auckland’s alert level.

The length of lockdown increased more than might have otherwise been the case reinforcing virus spreading growing non-compliance and public protests.

Economy and jobs

Rennie then asserts I assumed that “…under such a Level 4 lockdown the public could live viably with jobs to go back to.” In doing so he falls into the trap of a false dichotomy between health and economic performance.

No less than the Organisation for Economic Cooperation and Development (OECD) has debunked the notion that the two are opposites or opposed to each other. It ranked New Zealand as the best performing member country under the pandemic for both the health of its population and economic performance including our unemployment rate.

There is a greater likelihood under the current delta outbreak that had Level 4 continued in Auckland a little longer then the total lockdown length would have been less (perhaps by a month) and as a result better protected the job market.

Putting down scientists

Next Rennie creates an artificial construct by putting down the scientists. He declares that the “…government had to balance the calculations of the scientists (mathematics not modified for the real world) against what the community would accept, the authorities could enforce, and the country could afford.”

By his demeaning description of scientists (he may as well stereotyped them as ‘pointy heads’) Rennie diminishes the fact that these scientists were wide-ranging well beyond mathematicians. They included specialists in epidemiology, immunology, infectious diseases, respiratory systems and intensive care.

From the beginning of the pandemic it was their advice that the Government accepted leading to the saving of thousands of lives and the best economic performance in the OECD. This may not be Rennie’s real world but it is Aotearoa’s.

Vaccine rollout

Rennie then proceeds to repeat a misleading claim on the vaccine rollout in a clumsy sentence blaming the current situation of delta spread on “…very late vaccinations programmes which should have been well advanced months ago.”

To the extent that he might be referring to low vaccination rates in more economically deprived and geographically isolated communities (disproportionately Maori and Pasifika), he has a point. There was a failure to engage effectively with Maori and Pasifika health providers early on and we are now in desperate catch-up.

But, as far as vaccine supply is concerned, Rennie is off-beam. New Zealand is a small economy with limited bargaining leverage with monopolistic international pharmaceutical companies and we are a long way from vaccine producing countries.

Our vaccine rollout was (past tense) very low within the OECD but perspective is required. Most OECD nations are in the European Union which negotiated as a block. Other countries like the United Kingdom, United States and Canada are far bigger economies that New Zealand.

The only comparable OECD country with a similar population size not in either situation is Costa Rica.

Unworkable theory

Rennie concludes his rebuttal by confidently asserting that “…pragmatism has prevailed over unworkable theory.” Empiricism says otherwise.

Of the six Australian states, four (around 42% of Australia’s population) continued with the elimination strategy (zero tolerance of the virus rather than zero cases). Where the delta variant appeared it was effectively dealt with quickly by a hard lockdown, much shorter than Auckland’s. By preventing its spread it meant that subsequent delta cases have been dealt with by much small localised public health measures.

By his logic New Zealand should have followed New South Wales and Victoria (something the Government said at the beginning of the delta outbreak it would not do!

I for one much prefer the forensic Rennie to his non-forensic twin.

Ian Powell was Executive Director of the Association of Salaried Medical Specialists, the professional union representing senior doctors and dentists in New Zealand, for over 30 years, until December 2019. He is now a health systems, labour market, and political commentator living in the small river estuary community of Otaihanga (the place by the tide). First published at Otaihanga Second Opinion

14 COMMENTS

  1. Problem for the academics is that the level 4 lockdown compliance was no longer being adhered to. Police numbers in New Zealand are 12K. Victoria with an extra 1M people have 21K serving officers (and a sack full of riot control gear extra than NZ police). Reason the virus spread south was the inability to control the southern border west of Tuakua. The river became a crossing point for people all material things (including KFC and cash!). Hence the out breaks along and west of the Waikato river.

    Another issue for the state to consider was the huge increase in the black market (cash only) for all goods and services you would need. That stopped tax and GST payments dead in its track. Will that black market dry up (revert back to tax paying entities) as lockdown restrictions ease? The state hopes so, but who is sure.

    You want a hair cut, no problems, house calls and $150 cash. You want your car fixed, no problem, the roller door slides up in the workshop and rolls back down again, cash passed over, the roller door goes up and you drive away. Parts come in from Hamilton if required.

    But perhaps the biggest reason a level 4 lock down fails in New Zealand is the brazen allowance by the authorities to allow some sections of the community to flaunt the lockdown rules. Possibly weak Police response and lack of willing by the justice system to corral the offenders.

    People notice.

    And Aucklanders notice that the academics don’t live here or even deemed to know how the people in the lock up regions were in regards mental, physical and monetary health. They pontificate from afar, safe to be able to mix and mingle denied to 1.4M fellow New Zealanders. Try living in Clover Park and locked up (east of the motorway as you pass from Takanini to Manurewa in case you are wondering).

    • Gov’ts faith in trust would never work for the small feral minority who don’t give a fuck.
      Auckland’s borders at L4/3 should have been sealed to all but the double vaxxed including loop holes like the Tuakau bridge.
      Plenty of academics in Auckland including Hendy, whose projections were much closer to the reality than any JAFA whingers willing to risk the health and safety of their customers by demanding back to business.
      Govt from the start of Delta was the opposite of authoritarian or ‘communist’ but bending to mounting pressure of the business backlash and finally buckled on 23 Sept and went down to L3 when cases were down to about 20.
      John Key’s ‘hermit kingdom’ media release at 5am 26 Sept rallied the Alt right and licensed abuse of L3 rules.
      Tamaki’s first Domain rally 2 Oct publicly abuses the rules.
      Police look for wet bus tickets as Covid leaks out of Auckland and rises to 200 plus today.
      At least the vaccine works and the ferals are backing into an ever deepening rabbit hole.
      But look for another breakout as the Govt concession to anti-vaxxers accepting 72 hr tests and random checks for JAJFAs leaving AKL for Xmas will see another breakout among the unvaccinated.
      But of course this is all in the name of ‘freedom’ to ‘do what we want’.
      Make a great TV series about the fallout of neo-liberalism vs the youth vanguard of XR.

      • Yep, calling us Aucklanders “feral’ just about does it. Why the heck should anyone take notice of you when Aucklanders get called “feral”, “Jafa’s” and the like. The small “feral” minority is actually much larger than you think. But denigration will surely see them side with the you and the XR youth.

        As for a vanguard of youth? Ha, not likely. So woke they apologise for being a member of the race being sent to Coventry.

        Was accosted by one XS member wearing a nice nylon puffer jacket. She had no clue that the nylon jacket she was wearing was manufactured from fossil fuels. Chided her for not wearing a Swandri.

        Went totally over her head. No idea, no preconception, no common sense.

        XR and reality are two contradictory terms.

        But if the marxist in you sees XR as the way forward; go for it. Just don’t let them wear puffer jackets. Swandri’s all the way. I guess the red and black ones are most fetching for marxist XR members.

        • I am an Aucklander, a Westie to be more accurate.
          I have worn Swanndris – bushshirts, pea jackets and bomber jackets – since they 1970s.
          Ferals are those who think only of themselves and to hell with anyone else’s rights.
          Of course they puff themselves up they are fighting for ‘freedom’.
          But they don’t compare with the left political protests of recent years, especially the antiwar anti TPPA.
          A young person wearing a puffer jackets is an outrage but nothing compared with the battles they will fight to save the human race.
          And they don’t apologise for being ‘white’ only for the racist record of the white colonisers.

    • And excellent comment Gerrit. In addition:

      1. I wonder if the experts would have promoted an extended level 4 lockdown if it was *their* wages, mortgages and marriages on the line?

      2. Another problem I have with these hyperspecialized wonks is their sole focus is on preventing Covid 19 infections. Meanwhile out there in the real world there are broader issues to consider. These include economic and mental health harm as well as many parallel medical issues. Now that Victoria has at long last come out of it’s lockdowns it is reported that they’re 60,000 elective surgeries behind schedule. In addition to that, how many breast scans, cervical smears, colonoscopies, prostate checks, skin cancer checks and other diagnostic tests have been missed? It’s not hard to imagine a wave of preventable deaths occurring in the next 2-5 years thanks to this one-eyed focus on the virus.

    • If you look at the stats, you’ll see that they rose every time the government loosened the rules. Delta got into NZ when the bubble with Australia was opened. It leaked into Waikato when Auckland was dropped to level 3.

      This is about government signalling as Dr. Power has alluded to.

      As for the notion that when people see others flaunting the rules or getting off lightly being a reason to do it themselves; this is pretty childish really isn’t it? Do people not have the maturity or the moral integrity to do the right thing even if they see a few others not doing the right thing? I suppose it’s an indictment of our society. Very dysfunctional.

  2. Rennie sounds like a partisan of Plan B.
    @Te_Taipo during November published daily graphs on twitter documenting the reversal of the downward trend into a strong upward trend on going from L4 to L3.

  3. Don’t take it personally Mr Powell. Hughan B Rennie’s a lawyer – QC even, having had many years experience in the way things work – not unlike you. It’s probably simply that he’ll be cheerleading in the knowledge that the alternatives are far far worse. Go and knock on his Wadestown door (if that’s where he still is – Oban St me thinks) and have an adult chat – bloke to bloke. Could be that you have a lot in common

    • As a lawyer he should have just stuck to his knitting. It’s a classic case of an expert in his own field, straying into another field and perhaps, expecting the be regarded as an expert there as well.

  4. With you 100% Dr. Powell.
    I believe the government was spooked into this crazy shift, including the opening of a bubble with Australia which let Delta in. Spooked possibly by Key’s outburst shortly beforehand.

    • It was clear to me there was a direct correlation between govt change in strategy when JK spouted off his opinions publicly along with business whinging pressures. It was all on like Donkey Kong from there when elimination was clearly abandoned, right when cases were on a clear trend down. Who knows what we might have achieved had that fucker just shut the fuck up

  5. Yes Ian, QC…. “gun for hire”, maybe somebody in the upper echelons of the Auckland (or Queenstown) business community threw him a bone ( a large one) to go into to bat for them to discredit the your contribution, so maximum push back required & what better than a legal man after all they are supposed to be the height of probity.

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