The rapid spread of the COVID-19 pandemic was an unprecedented global disaster. Entire nations were forced to go into lockdown, requiring its residents to stay at home for an undefined amount of time. The New Zealand Government responded promptly to the pandemic with the first confirmed case of COVID-19 in New Zealand being 28 February 2020 and the implementation of the Level 4 Alert Lockdown by 25 March 2020.
The enforced lockdown raised legal questions around human rights including freedom of movement, right to refuse to undergo medical treatment and the right to be free from unreasonable search and seizure. The Government’s response to this was the urgent passing of the COVID-19 Public Health Response Act 2020 (“the Act”), with a purpose to create a bespoke legal framework for managing the public health risks posed by COVID-19. The backdrop to the Act is an unprecedented public health emergency that required several exceptional powers that would be unlikely to be justified in ordinary circumstances. Therefore, the Act is a temporary measure and is repealed on the earlier date of either two years after the date of commencement, or on the expiry of a period of 90 days if no resolution is passed to continue the Act by the House of Representatives. This demonstrates the extraordinary circumstances of COVID-19 and justification of the exception powers that are extended in the Act.
The Act is broadly based on the powers set out in the Health Act 1956 and allows the Minister of Health, and the Director-General of Health in some circumstances, to make enforceable orders relating to people, business and activities. It enables the Government to take a precautionary approach in an effort to prevent and limit the risks of potential outbreaks of COVID-19 in New Zealand. The Act further recognises the highly contagious nature of COVID-19 and allows for continued applicability of necessary public health measures.
Section 11 is arguably the most important section of the Act as it details the orders which can be made by the Minister or Director-General of Health. Some of these orders include: requiring persons to stay in a specified place or refrain from going to any specified place; refrain persons from travelling to or from any area; be isolated or quarantined in any specified place and to report for medical examination or testing. Further, s20 allows for the enforcement of any s11 order by granting an enforcement officer the power to enter, without a warrant, any land, building, craft, vehicle, place or thing if they have reasonable grounds to believe that a person is failing to comply with any aspect of a s11 order. Any person who commits a serious offence relating to non-compliance of s11 orders is liable on conviction for a fine of up to $4,000 or imprisonment of up to six months. Minor offences of non-compliance can cost an individual a fine of $300 or a business can be ordered to close for up to 24 hours.
As the COVID-19 situation continues to develop and we attempt to adapt to the unprecedented times ahead, questions remain unanswered and the COVID-19 Public Response Act is likely to be in the firing line with additions and amendments required.