While we've all been hoping that COVID-19 would take the summer off, it's looking increasingly likely that there will be an unwelcome guest at this year's Christmas festivities. In light of that, and the Government's announcement this week that a Royal Commission will examine New Zealand's response to COVID-19, this update looks at the current status of New Zealand's legislative response to COVID-19. It discusses how things have changed since the pandemic began and the response powers the Government now has following the recent amendment to key COVID-19 legislation.
The legislative response to COVID-19 has been enormous. Hundreds of pieces of primary and secondary legislation were enacted to facilitate New Zealand's response to the pandemic. In the early days of the pandemic, decisions to move New Zealand into the Alert Level 3 and 4 lockdowns were made under the Epidemic Preparedness Act 2006 and the Health Act 1956. In May 2020, the Government put in place a new legal framework for its ongoing response to COVID-19, in the form of the COVID-19 Public Health Response Act 2020 (the Act).
The Act empowers the Minister for COVID-19 Response and the Director-General of Health to issue orders to implement public health measures to prevent the risk of the outbreak or spread of COVID-19. When first enacted, the orders that could be issued were very broad and were able to impose wide-ranging obligations on people and in respect of places and premises. Examples of these include:
- Setting the restrictions (such as requiring people to stay physically distant from others and limiting gatherings) that applied to different regions of New Zealand under the Alert Level System
- Establishing isolation and quarantine requirements for people entering New Zealand via the air or maritime border
- Requiring vaccine passports, vaccination and regular testing of certain workers, such as healthcare workers.
As the pandemic progressed, many orders were amended or repealed altogether. Notably, in November 2021, the Alert Level System was replaced by the Traffic Light System (under the COVID-19 Public Health Response (Protection Framework) Order). That Order, and the Traffic Light System, came to an end on 12 September 2022. These changes and other legislative amendments mean that there are no remaining requirements relating to vaccine mandates, vaccination passes or COVID-19-related travel and border restrictions.
Recent extension of, and amendments to, the Act
The Act was due to expire in May 2023. When setting the expiry date, it was anticipated that COVID-19 would be able to be managed through the powers in the Health Act 1956 and the Epidemic Preparedness Act 2006. However, it was subsequently decided that these powers would not be fit for purpose for managing the response (for example, mandatory mask requirements could not be implemented). The Government recognised a need to wind back the extraordinary powers available under the Act, while retaining a basic legal framework that gives the Government powers to contain the spread of the virus.
The COVID-19 Public Health Response (Extension of Act and Reduction of Powers) Amendment Act (Amendment Act) was therefore passed into law (under urgency) on 25 November 2022.
The key change the Amendment Act makes is to limit the Minister's order-making powers. As set out above, when the Act was passed, it gave the Minister and Director-General very broad powers to make orders, enabling implementation of a wide range of public health measures. The Amendment Act has narrowed the scope of those order-making powers, which now broadly are:
- Requiring self-isolation (for cases, household contacts, and close contacts)
- Setting requirements as to the use of masks
- Setting capacity/gathering limits
- Requiring that masks be used on inbound flights to New Zealand.
The Amendment Act also limits enforcement powers by (amongst other things):
- Removing the power for warrantless entry to private dwellings and marae, the power to close roads and public places and stop vehicles, and the power to direct a person to produce evidence of compliance with a specified measure
- Reducing the maximum penalties for offences committed under the Act (eg the maximum fine for an individual who fails to comply with an order has been reduced from NZ$12,000 to NZ$5,000)
- Repealing section 145 and Schedule 5 of the Residential Tenancies Act 1986, which prevented landlords from being able to terminate tenancies during lockdowns (lockdowns are not enabled by the Amendment Act)
- Removing all provisions relating to managed isolation facilities (except for a transitional provision to preserve the ability to recover existing MIQ debts).
The Amendment Act retains some of the existing safeguards of the Act, such as the prerequisites for COVID-19 orders, and the requirement that all COVID-19 orders be consistent with the New Zealand Bill of Rights Act 1990. It also:
- Removes the requirement for the House of Representatives to periodically resolve that the Act remain in force, and provides that it will remain in force for two years following Royal Assent
- Removes the power for the Director-General to make COVID-19 orders, which can now only be made by the Minister.
What else is left?
With the passing of the Amendment Act, it is useful to reflect on what measures are currently in place. These are:
- Masking requirements have almost all been repealed, except for those provided for in the COVID-19 Public Health Response (Masks) Order 2022, which requires masks to be worn in certain health premises
- Individuals with COVID-19 are still required to self-isolate for a period of seven days under the COVID-19 Public Health Response (Self-isolation Requirements) Order 2022
- The COVID-19 Public Health Response (Infringement Offences) Regulations 2021, which prescribes classes of infringement offences under the main Act, remains.
With more than 34,000 COVID-19 cases reported last week, it is clear the pandemic isn't going anywhere anytime soon. However, we are coming down the other side of the enormous wave of legislation enacted over the past two and a half years in response to the pandemic.
While the public health response to COVID-19 will continue, some of the more significant (and potentially controversial) powers that underpinned New Zealand's initial response have now been scaled back. It will be interesting to see whether the revised legislative framework will be sufficient to manage COVID-19 long-term, or if further adjustments will be needed.