Auckland barrister Warren Pyke runs the rule over the government’s response to COVID-19, the law and its enforcement
In 2002 and 2006 the New Zealand Parliament passed legislation designed to meet the requirements of emergencies, including epidemics.
This article reviews this legislation in the context of government measures taken during the present COVID-19 emergency. The law is stated as of midnight on 5 April 2020.
A nationwide state of national emergency was declared on 25 March 2020 at 12:21pm. This declaration was made under s 66 of the Civil Defence Emergency Management Act 2002. Under s 70 of this Act, a state of emergency expires seven days after the time and date on which it came into force, although this may be extended. Parliament was adjourned on 25 March 2020 until 28 April 2020.
A statutory notice and a director-general’s order to combat COVID-19
On 24 March 2020, the Prime Minister, with the agreement of the Minister of Health, issued an epidemic notice under s 5 of the Epidemic Preparedness Act 2006. This permits, by notice in the Gazette, the making of a declaration that she is satisfied the effects of an outbreak of a stated quarantinable disease are likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand.
The disease was COVID-19, which is also a quarantinable diseases. COVID-19 was added on 11 March 2020, by clause 3(2) of the Infectious and Notifiable Diseases Order (No 2) 2020 (LI 2020/31). It was also listed as an infectious disease on 11 March 2020, by clause 3(1) of the Infectious and Notifiable Diseases Order (No 2) 2020 (LI 2020/31).
On that same day, the Director-General of Health made an order under s 70(1)(m) of the Health Act to require the closing of all premises except those listed in the appendix to the order (which excluded private residences), and forbids people from congregating outdoors, unless maintaining physical distancing as defined in the appendix to the order.
“Essential businesses” were excepted, meaning those for the provision of the necessities of life and those listed on the government’s covid19.govt.nz website. “Physical distancing” means remaining at least two metres away from each other, although people may be within two metres of each other for no more than 15 minutes.
The order remains in force until replaced or revoked. A breach is an offence against s 72 of the Health Act, attracting upon conviction a maximum penalty of six months’ imprisonment, a fine not exceeding $4,000, or both.
Regular ministerial review required
Under s 9 of the Epidemic Preparedness Act 2006, the Director-General of Health must keep under review, and keep the Prime Minister and the Minister of Health informed of the situation out of which the making of an epidemic notice arose. If no longer satisfied that the effects of the outbreak concerned are likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand (or the parts of New Zealand concerned) significantly, the Prime Minister must promptly revoke the epidemic notice.
Powers of modification of enactments under the Epidemic Preparedness Act do not affect the High Court’s jurisdiction in judicial review; the Bill of Rights Act 1688 (which among other things requires the frequent sitting of parliament, and protects the “true, ancient, and indubitable rights and liberties of the people”); the New Zealand Bill of Rights Act 1990 (which preserves freedoms of assembly, association and movement), or other key constitutional enactments.)
A special oversight committee chaired by Opposition leader Simon Bridges, with most sitting members being from opposition parties, was established by consent to sit during the period of the state of emergency. The committee has powers that usually reside with a privileges committee, such as the ability to send for people and papers.
This was described during the sitting on 25 March by the Hon. Gerry Brownlee as enabling parliamentarians to ensure that groups in our society who could be left out and left in quite miserable conditions are not overlooked, saying: “These are all the things that we need to look at, because, while we don't want the potential death toll to come from the virus, we also don't want people's lives to be compromised to that extent because of the other choices that we have to make as a nation.”
The oversight committee took advice from Professor John Hopkins of Canterbury University as to the adequacy of the legal measures. He observed that no New Zealand government had previously exercised powers to place the whole of the population under quarantine, which he opined carried legal risks.
The committee also heard about a lack of accessible information for the public as to the legal basis for the measures. This information is now available in a drop-down menu on the website, covid.govt.nz.
A National Quarantine Order made by the director-general on 3 April 2020
On Friday 3 April 2020, the incoming Police Commissioner observed there was potential for the “health notice to be revisited”. By 6 pm that day a further order was issued under s 70(1)(f) of the Health Act by the director-general.
It was more prescriptive in its terms than the previous order; it ordered “all persons within all districts of New Zealand to be isolated or quarantined” at “their place of residence”, except to access essential businesses nearest to their home, or within the territorial authority boundaries of their home (including supermarkets); it allows for access arrangements to be carried out for children, for travel for emergencies and authorised travel.
Recreation outside of a person’s residence is permitted only if it is outdoors and in a readily accessible place from their residence, and if physical distancing is observed. Specified risky activities, examples being ocean swimming and tramping, are banned. The order is set to expire on 22 April 2020, unless earlier revoked (cf the 25 March order which does not specify an expiry date).
The director-general’s orders are disallowable instruments
The director-general’s orders are legislative instruments that are disallowable within the meaning of sections 38 and 39 of the Legislation Act 2012 (this Act and the Interpretation Act 1999 will be altered when the Legislation Act 2019 comes in to force by Order in Council yet to be made).
This is so partly because of the temporal effect (see s 40 of this Act), but principally because they fall within s 39, as having:
“a significant legislative effect if the effect of the instrument is to do both of the following: (a) create, alter, or remove rights or obligations; and (b) determine or alter the content of the law applying to the public or a class of the public.”
The orders must be presented to the House of Representatives not later than the 16th sitting day of the House of Representatives after the day on which they are made. This means the longer Parliament remains adjourned, the longer this time period runs. In this case it will run beyond the specified date in the 3 April order (noting that Parliament has the power of disallowance or amendment of the instrument before the 16-day period ends). Disallowance has the effect of revocation.
Enforcement of the director-general’s orders and the emergency directions
"Police cannot lawfully use traffic stops
as a pretext to interrogate motorists as to
compliance with the emergency measures"
While a state of emergency is in force, a national controller, a group controller or constable may under s 91 of the Civil Defence Emergency Management Act “direct any person to stop any activity that may cause or substantially contribute to an emergency”, and “request any person, either verbally or in writing, to take any action to prevent or limit the extent of the emergency”.
This language means a direction must be compiled with, but a request need not be. Constables and enforcement officials or officers ought to be clear in their language and explain the legal basis for any directions or requests they may make.
Section 71A of the Health Act empowers constables to enforce the orders. However, the emergency legislation, the Health Act and the orders are silent on what triggers a constable's powers, meaning the position is that enforcement must be observe other limits to police powers.
For example, vehicles may be stopped only if reasonable grounds exist to suspect a breach of the order (s 9 Search and Surveillance Act 2012); roadblocks must be authorised for proper purposes (s 30 of the Search and Surveillance Act); traffic related stops must come within s 113 of the Land Transport Act.
Stopping or arresting pedestrians can occur only if reasonable grounds exist to suspect a breach of the orders, or if they are doing something that, within the meaning of s 91 of the Civil Defence Emergency Management Act 2002, substantially contributes to the emergency.
Police cannot lawfully use traffic stops as a pretext to interrogate motorists as to compliance with the emergency measures. Without first forming reasonable cause to suspect a breach of the orders, police cannot interrogate people who are acting lawfully in a public place, nor can they direct people to go home, if they are observing physical distancing while in a public place. Any calculus as to distance from a person’s home, and identification of a person’s home, makes that requirement difficult to enforce. People observed to be undertaking prohibited activities can be warned or arrested, as can people who are not observing physical distancing. Police officers must give people their rights when questioning them about a suspected offence.
The validity of the 3 April director general’s order
"I consider the effects of the health orders
to be an issue of public importance,
which needs to be aired"
I argue that some quarantine regime is justified, just not this one. I will put forward points which are tied to the legal validity of the orders. There are no doubt contrary arguments or scientific conjectures (based on modelling or otherwise), some of which I have tried to address.
If this offends those who think science or doctors are to be deified, so be it. My focus is on the law. I have recited some legal provisions and points that would not favour an argument advanced by an advocate, and I have done so consciously. I consider the effects of the health orders to be an issue of public importance, which needs to be aired.
Section 70 of the Health Act was amended when the Epidemic Preparedness Act 2006 was passed. Parliament can therefore be taken to have considered and adjusted the scope of the powers under s 70 of the Health Act, to conform to the design of the later Act.
It is doubtful that s 70(1)(f) authorises the director-general to make an order quarantining the whole population of the country. Section 70(1)(f) must be read together with its surrounding provisions and in the context of the Act as a whole, along with the triggering event which was the issuing of an epidemic notice. The order itself is expressly premised on the issuing of an epidemic notice. Section 70(1)(f) empowers the director-general as follows:
70 Special powers of medical officer of health
(1) For the purpose of preventing the outbreak or spread of any infectious disease, the medical officer of health may from time to time, if authorised to do so by the minister or if a state of emergency has been declared under the Civil Defence Emergency Management Act 2002 or while an epidemic notice is in force,— …
(f) require persons, places, buildings, ships, vehicles, aircraft, animals, or things to be isolated, quarantined, or disinfected as he thinks fit:
The following qualification was added by s 112AA, in Part 3A of the Health Act (added in 2006, when the Epidemic Preparedness Act 2006 was enacted):
112AA Sections 70 and 71 and this part operate independently
The powers conferred by sections 70 and 71 and the powers conferred by this part [Part 3A] may be used in respect of the same situation; and—
(a) nothing in section 70 or 71 limits or affects the powers conferred by this part; and —
(b) nothing in this part limits or affects the powers conferred by section 70 or 71.
Part 3A focusses on individuals in relation to the control of infectious diseases, of which COVID-19 is one.
Looking first at the text of s 70(1)(f), the last four words do not enact an unfettered discretion. What the medical officer “thinks fit” is controlled by the preceding words, including the surrounding text. Directions under section 70 must be purposed to prevent the “spread of any infectious disease”: there must be some empirical foundation for such a wide-reaching measure. So little testing of the population has been done so far that it cannot be empirically established that widespread public infection presently exists.
That “persons” is a reference to identifiable infected or possibly infected persons is indicated by attending to another word in section 70(1)(f) – ie, that is not included in the wording of the 3 April order: namely, that persons may be required to be “disinfected”.
It would be arbitrary if a medical officer required a whole population to be disinfected, without regard to empirical facts, or individual medical conditions or circumstances. The 3 April quarantine order is similarly arbitrary. For example, it means that elderly or infirm people are often unable to access essential services (the people that concerned the Hon. Gerry Brownlee when he made his statement in the House), and that uninfected and low risk people’s lives and businesses are being damaged if not wrecked by such a draconian restriction.
Section 70(1)(f) may be compared to section 70(1)(m), which inter alia prohibits the congregating together of people, but which prohibition must be “by order published…[through certain media]”. This mandatory publication condition is tailored to address requirements which are to be made of the public at large. Section 70(1)(f), by contrast, does not mandate publication, nor does it provide for a mechanism for publication. This is a further indication that s 70(1)(f) was not intended to enable an order to be made against the public at large.
Despite s 112AA, the interpretation of s 70(1)(f) may be informed (but not rigidly constrained) by the principles as to management of infectious diseases under Part 3A.
Those principles provide that the paramount consideration is the protection of public health, that individuals must be treated with respect for their dignity, that individuals must be given the opportunity to voluntarily comply with any measures, and be encouraged to take responsibility for their own health and, to that end, to participate in decisions about how to protect and promote their own health and the health of their communities.
If the provisions can be applied harmoniously, so that individual rights are respected, that ought to be the preferred interpretation. Measures applied to an individual in relation to an infectious disease must be proportionate to the public health risk.
Individuals who no longer carry a risk of acquiring or causing infection cannot justifiably be locked down on any scientific basis, but such individuals are irrationally subjected to the 3 April order.
These factors strongly point to any order under s 70(1)(f) being available only in relation to identifiable individuals, being individuals who actually, not just hypothetically, pose a risk to the public health.
Further, that Parliament has not intended the use of section 70(1)(f) as a vehicle for a population-wide “lock down”. The problem is that testing has been slow to roll out. But that does not justify isolating everyone.
A logical alternative is to make a health order that focusses on tightly isolating potentially infected people along with a voluntary regime for the vulnerable to observe (matched with effective measures of support for them). As one commentator observed, this type of targeted measure would stop the placing of innumerable lit matches into small boxes of tinder and is consistent with the goal of limiting infection in those who could get seriously ill or die from it, and thereby prevents the hospitals from being overwhelmed. Such alternatives are, of course, for those in authority to carefully consider.
The 3 April 2020 order ought to be disallowed by Parliament
There has not been vested in the Director-General of Health a law-abridging power – only parliament has that power. The appropriate mechanism for any abridgement is under the modification provisions of the Epidemic Preparedness Act 2006.
Even though an epidemic notice was issued, rights to freedom of assembly, association and movement under the New Zealand Bill of Rights Act 1990 are legally preserved and cannot be modified (see s 15(3) of that Act).
A cogent reason why the 3 April order ought to be disallowed is that it purports to abridge, in relation to all people within New Zealand, fundamental rights of peaceful assembly, association, and movement guaranteed by sections 16 to 18 of the New Zealand Bill of Rights Act 1990, in circumstances where the specific epidemic legislation cannot be used by a higher power to do so (legislation which the director-general incoherently relies upon as a foundation for the making of the 3 April order).
The correct approach to determining the rights interpretation issue has been authoritatively set forth in Hansen v R  NZSC 7,  3 NZLR 1.
This is law that has become familiar, so I summarise it only. No enactment shall be held to be invalid by reason only of inconsistency with any provision of the Bill of Rights Act, but wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights Act, that meaning shall be preferred; lastly, the rights and freedoms contained in the Bill of Rights Act may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Hansen holds that if the natural meaning of a statutory provision appears to limit a guaranteed right, the appropriate next step is to consider whether that limit is justified in terms of s 5 New Zealand Bill of Rights Act 1990.
It is only when the natural meaning fails the s 5 test that section 6 may displace such a meaning, if a more rights-consistent alternative is genuinely open in the light of the provision's text and purpose. If the words of the provision are not capable of supporting a different and Bill of Rights consistent meaning, s 4 requires the court to give effect to the provision in accordance with its natural meaning. When considering what is “demonstrably justified in a free and democratic society”, there are three aspects: rational connection between means and objective; minimal impairment of the right; and proportionality of the limit to the objective.
The statutory provision is s 70, and the health orders issued thereunder. While it may be that individuals or specified infected persons can be lawfully subject to the director-general’s orders, because these requirements may, in identifiable closed categories, represent reasonable limits to an individual’s rights, this was not the purpose or effect of the 3 April order.
There is nothing in the legislation that supports an interpretation that the director-general may suspend the operation across the land of fundamental rights. The 3 April order is inconsistent with the explicit savings to the scope of the modification of legislation in the Epidemic Preparedness Act 2006, set out above: the limits to these epidemic powers inform the interpretation of s 70, and the issue of justified departure.
A wholesale suspension of three fundamental civil rights is unlawful: it sets an ominous precedent, and rests upon an unjustifiably broad and incoherent reading of the applicable powers under the Health Act and the Epidemic Preparedness Act 2006.
My interpretation gives effect to the protection of the fundamental civil rights of assembly, movement and association, particularly as it accords with an interpretation that is open in the light of the text and purpose of s 70 of the Health Act. While a contrary argument is that the limits to these rights can in present circumstances be justified because there is an epidemic, this only goes so far to allow for the abridgement of rights of individuals, against whom it can be demonstrated that they pose a risk of spreading the infectious disease.
A further argument is that the 3 April order is contrary to parliamentary sovereignty and democracy alike, particularly as it has been issued while Parliament was adjourned (therefore it is beyond parliament’s immediate oversight – the mere activity of a special oversight committee is not enough to answer this point).
The importance of Parliament’s role, and the need for it to sit, as a check on executive power, was recently emphasised by the UK Supreme Court in R (Miller) v Prime Minister (SC (E & Sc))  UKSC 41,  3 WLR 589: as Professor John Craig, of St John’s College, Oxford observed when commenting on Miller, “All power is bounded” (see Paul Craig, “Prorogation: principle and law, fact and causation”, Counsel, Oct 2019:26-28).
It might be argued that the policy underlying the 3 April order justifiably trumps other laws in an epidemic, when the “paramount consideration” is the protection of public health. But this argument can take the director-general only so far. For example, he could not by order made under s 70 conceivably abrogate the right to judicial review, the Constitution Act 1986, or the Bill of Rights Act 1688. It was observed long ago that: “Public policy is a very unruly horse, and once you get astride it you never know where it will carry you. It may lead you from sound law, and is never argued but when all other points fail.” (Mr Justice Burrough, in Richardson v Mellish (1824) 2 Bing 228).
That unruly horse will buck its rider if it transpires that the scope of the ‘lock down’ order was beyond the director-general’s powers: that serious ramifications will flow from such a conclusion is obvious.
I argue that the 3 April order in particular has offended two principles of the rule of law, namely law not discretion, and the exercise of power within its legal limits (identified by Sir Thomas Bingham in his book The Rule of Law, Penguin Books, 2011).
Given the importance to the country of the measures taken to address the COVID-19 epidemic, questions about their legality must be swiftly and authoritatively answered: the best place for that to occur is in parliament itself. For disallowance to occur, parliament would need to reconvene soon. A sufficiently motivated citizen might also commence a proceeding for judicial review, based on these or other arguments.
Warren Pyke is an Auckland barrister