The New Zealand response

Introduction

New Zealand experienced its first reported case of Covid-19 on 28 February 2020 and reached zero reported cases on 8 June 2020. During that time, there were 1,504 confirmed and probable cases of Covid-19 and 22 deaths attributed to the virus. The New Zealand Government’s stated approach to Covid-19 was to “go hard, go early”. Unlikely many other countries, the New Zealand Government aimed to eradicate the virus rather than simply to alleviate the burden on its healthcare system by “flattening the curve”. On 8 June 2020, New Zealand succeeded in that goal, becoming one of only nine countries at that time in the world to have eradicated the virus in the community.

Measures taken by the New Zealand Government

Before the first reported domestic infection, the Government’s response was primarily focused on border control and public health guidance. On 3 February 2020, the Government implemented border restrictions requiring non-citizens seeking to enter the country from China to self-isolate for 14 days. Quarantine measures were not introduced at this point. These border restrictions were extended to Iran on 28 February 2020 and were gradually extended to other countries over time. On 14 March 2020, the Government extended self-isolation border restrictions and measures to all persons entering the country (including New Zealand citizens and residents).

As early as 13 February 2020, the Ministry of Health had issued guidance and advice to the public on self-isolation and measures to reduce the spread of disease, including social distancing and hygiene practices.

On 16 March 2020, the Government advised event organisers to cancel gatherings of more than 500 people. This advice was extended to gatherings of more than 100 people on 19 March 2020.

On 21 March 2020, the Government announced the Covid-19 Alert System. The Alert System has four alert levels:

  • Level 1 – Prepare. This level includes border measures, intensive testing, contact tracing of identified cases, self-isolation requirements and hygiene requirements.
  • Level 2 – Reduce. This level additionally includes social distancing requirements, restrictions on large events, and restrictions on how businesses can operate.
  • Level 3 – Restrict. This level additionally includes an instruction to stay home and not associate outside an exclusive group of close family; restrictions on interregional travel; closure of businesses involving physical interaction with customers; closure of public venues; closure of certain educational facilities; and restriction of funerals and weddings to 10 people.
  • Level 4 – Lockdown. This level additionally includes an instruction to stay home and not associate outside the household; restrictions on non-safe recreational activities restrictions on non-local travel; closure of all non-essential businesses; closure of all educational facilities; rationing of supplies and requisitioning of facilities; and reprioritisation of healthcare services.

At the same time as announcing the Alert System, the Prime Minister stated that New Zealand was at level 2, and that the levels would be actively managed.

On 23 March 2020, the Prime Minister announced that New Zealand had immediately moved to alert level 3 and would move to alert level 4 on 25 March 2020 for an initial period of four weeks.

On 9 April 2020, the Government announced that people returning from overseas were to be placed in quarantine facilities or managed isolation facilities, rather than being allowed to self-isolate in their homes. All persons arriving in New Zealand were required to submit to medical examination and testing for diagnostic purposes.

New Zealand moved back to alert level 3 on 27 April 2020, to alert level 2 on 13 May 2020, and finally to alert level 1 on 8 June 2020.

Legislation underlying the measures

Section 70(1) of the Health Act 1956 provides a medical officer of health, including the Director-General of Health, certain special powers for “the purpose of preventing the outbreak or spread of any infectious disease”, including the power to require persons to “submit themselves for medical examination” and to “be isolated, quarantined, or disinfected”. Other powers include forbidding people to congregate and requiring premises to be closed. These powers may only be exercised with authorisation of the Minister of Health, or when an epidemic notice is in force, or when a state of emergency has been declared.

The early border restrictions were based on an order made on 16 March 2020 under s 70(1)(f) and (h) of the Health Act requiring all persons arriving in New Zealand to be isolated or quarantined for 14 days. The later quarantine requirements for people returning from overseas were based on an order made on 9 April 2020 under s 70(1)(e), (ea) and (f) of the Health Act.

The level 4 lockdown measures were initially based on three legislative procedures initiated by the Government on 24 and 25 March 2020:

  • The Prime Minister issued an epidemic notice pursuant to section 5 of the Epidemic Preparedness Act 2006.
  • The Minister of Civil Defence declared a state of national emergency pursuant to section 66 of the Civil Defence Emergency Management Act 2002. The state of national emergency was to last for seven days but it was extended several times until 13 May 2020.
  • The Director-General of Health issued an order under section 70(1)(m) of the Health Act requiring that all premises be closed and forbidding people to congregate in outdoor places of amusement or recreation of any kind or description.

These procedures were supplemented by an order under section 70(1)(f) of the Health Act issued by the Director-General of Health on 3 April 2020, which required all persons to remain at their current place of residence, except as permitted for essential travel, and to maintain physical distancing except from fellow residents or as necessary to access or provide an essential business.

The alert level 3 measures were based on the Health Act (COVID-19 Alert Level 3) Order 2020, which was issued pursuant to section 70(1)(f) and (m) of the Health Act by the Director-General of Health on 24 April 2020.

On 12 May 2020, Parliament passed the COVID-19 Public Health Response Act 2020 under urgency (and within a single day), which provided the underpinning for all subsequent measures as New Zealand moved back to alert level 2.

Judicial comment

There have so far been three proceedings challenging aspects of the New Zealand Government’s response to Covid-19.

The first comprised two applications for habeas corpus (under the Habeas Corpus Act 2001) that claimed the (self-represented) litigants had been “unlawfully detained” under the lockdown restrictions applicable at alert level 4. The applications were declined at first instance by the High Court. On appeal, the Court of Appeal held that detention under the Habeas Corpus Act requires the applicant to be held “in close custody or in a similarly restrictive environment not shared by the public”. The Court observed that both applicants had been able to leave their respective homes to go to a supermarket and to undertake exercise. As such, there was no “detention” and it was not necessary for the Court to consider whether the measures adopted by the Government were lawful.

The Court observed that, in any event, an application for habeas corpus was not the appropriate procedure to challenge the lawfulness of these measures, which raised “complex legal issues that are not amenable to the truncated procedures” of the Habeas Corpus Act. The Court observed that there were “unresolved questions” about the lawfulness of the Health Act notices, as noted by two of New Zealand’s leading public law academics (discussed further below), and suggested an application for judicial review was the appropriate procedure to consider those matters.

In the second proceeding Oliver Christiansen had returned to New Zealand from overseas and was required to remain in self-isolation for 14 days, although he displayed no symptoms of illness. The reason for his return was that his father was dying. Mr Christiansen applied for a limited exemption from the 14-day self-isolation requirement to visit his dying father. He relied on elements of the Health Act order that allowed exemptions on compassionate grounds and for exceptional reasons. His application was refused by the Ministry of Health which considered that a visit to a dying relative was not permitted. The High Court held that the Ministry had construed the categories of exemption too narrowly. Given the urgency of the matter, the Court granted interim mandatory relief allowing Mr Christiansen to travel to see his father.

The third proceeding is an application for judicial review that is currently awaiting hearing before a full court of the High Court. That proceeding has been brought by a retired parliamentary draftsman.It includes claims that the Health Act notices were unlawful because they went beyond the scope of the relevant empowering provisions, as well as claims that the alert level system was in breach of the New Zealand Bill of Rights Act 1990 because the restrictions placed on several rights guaranteed by it were not “prescribed by law” within the meaning of section 5 of that Act. Interestingly, even though the measures imposed by the New Zealand Government, in particular the level 4 lockdown, involved the curtailment of many of the rights affirmed by the New Zealand Bill of Rights Act and by international human rights instruments, the applicant has conceded that the measures were not unreasonable for the purposes of his challenge. The matter will be heard in the week commencing 27 July 2020.

That means that the question of whether the restrictions implemented by the Government can be demonstrably justified (including, for example, whether they were rationally connected to the objective of eradicating Covid-19 and whether those measures were proportionate to that end) will not be addressed by the Court.

Rule of law issues

Several rule of law issues have been raised concerning the New Zealand Government’s Covid-19 response. Many of these were identified by Professor Andrew Geddis of the University of Otago and Professor Claudia Geiringer of Victoria University of Wellington, in an article written for the UK Constitutional Law Association on 27 April 2020. Many of these issues have been incorporated into the pending judicial review proceeding.

The first arises from the fact that the legal powers in the Health Act, upon which the Government relied, were provided by Parliament to the Director-General of Health, a public servant. However, many of the decisions were in reality being made (and announced) by the Prime Minister and her Cabinet. Professors Geddis and Geiringer suggest this may have amounted to “a purported suspending of the law without consent of Parliament contrary to the Bill of Rights 1688”. Alternatively, the Director-General of Health could be accused of acting under the direction of Ministers in violation of the independence of the public service as enshrined in the State Sector Act 1988.

The second concern relates to the meaning of “essential business” in the Health Act orders, which determined those businesses permitted to operate under alert level 4. While the orders were made by the Director-General of Health, it was officials from the Ministry of Business, Innovation & Employment who determined whether individual businesses were properly classified as essential.

The third concerns the passing of the COVID-19 Public Health Response Act 2020 under urgency. On 12 May 2020, the Human Rights Commission said it was deeply concerned about the lack of scrutiny and rushed process for this bill. It said the Government had “not allowed enough time for careful public democratic consideration” of the legislation, which introduced “sweeping police powers unseen in this country for many years”. It particularly highlighted the lack of a provision requiring decisions under the new law to be made in accordance with national and international human rights obligations. The Bill originally contained a two-year sunset clause, but this was subsequently reduced to 90 days after the Human Rights Commission expressed its concerns.

  1. New Zealand continues to have a small number of active cases in managed isolation as New Zealanders return home from countries with Covid-19.
  2. A v Ardern [2020] NZHC 796; and B v Ardern [2020] NZHC 814.
  3. Nottingham v Ardern [2020] NZCA 144 at [20].
  4. At [29].
  5. At [28].
  6. Christiansen v Director-General of Health [2020] NZHC 887. On 16 June 2020, after two individuals granted a compassionate exemption from managed isolation subsequently tested positive for Covid-19, the Director-General announced a blanket suspension of the compassionate grounds exemption. In Hattie v Attorney-General HC Auckland CIV-2019-404-303, 8 July 2020, the applicant’s father passed away before he could challenge the refusal to grant a compassionate exemption from his managed isolation. Muir J observed “there appears an urgent need for the Director-General to readdress” the appropriateness of that suspension.
  7. Borrowdale v Director-General of Health
    HC Wellington, CIV-2020-485-194.
  8. Those rights include the right to refuse medical treatment, the freedom of peaceful assembly, the freedom of association and the freedom of movement.
  9. See https://ukconstitutionallaw.org/2020/04/27/andrew-geddis-and-claudia-geiringer-is-new-zealands-covid-19-lockdown-lawful/. See also reply by Professor Geoff McLay and Dr Dean Knight of Victoria University of Wellington: https://ukconstitutionallaw.org/2020/05/11/dean-r-knight-and-geoff-mclay-is-new-zealands-covid-19-lockdown-lawful-an-alternative-view/.
  10. My thanks to James Tocher, junior barrister to Thorndon Chambers, for his assistance in the
    preparation of this paper.

Biography

Dr Andrew Butler is a highly experienced appellate advocate with frequent appearances before the New Zealand Supreme Court and Court of Appeal. He has authored or co-authored in excess of 50 law review articles and monograph chapters. His writing has appeared in leading law journals in New Zealand, the United Kingdom, Australia South Africa and Ireland. His writing has covered a range of subjects, but largely focused on his areas of expertise including public law and human rights. Andrew is also a popular seminar presenter and is in high demand for continuing legal education presentations. As with his academic writing, the seminars focus on his areas of expertise, in particular public and administrative law, and human rights.

Introduction

Analysis

Conclusion