COVID-19 Public Health Response Bill

  • enacted

COVID-19 Public Health Response Bill

Government Bill

246—1

Explanatory note

General policy statement

This Bill is an omnibus Bill that amends more than 1 Act and is introduced under Standing Order 263(a) because the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy. That single broad policy is to establish a fit-for-purpose legal framework for managing the unprecedented circumstances of the COVID-19 epidemic in a co-ordinated and orderly way, even if there is no longer a national state of emergency. To this end, this Bill establishes standalone legislation that provides a different legal framework for responding to COVID-19 over the next 2 years or until COVID-19 is sooner brought under control.

In addition to this, the Bill—

(a)

will apply to all Alert Levels under the COVID-19 Alert Level Framework; and

(b)

addresses the need for some enforcement powers for certain restrictions that may be applied so that these restrictions do not rely on powers provided by a state of national emergency—at Alert Level 2 this may include gatherings and distancing; and

(c)

establishes decision-making processes that are more modern and consistent with recommended practice by legal academics and others; and

(d)

has limited retrospective effect to enable the Alert Level 2 order to be prepared and commence immediately, if needed; and

(e)

does not provide retrospective validation of actions already taken on previous orders.

The measures in the Bill take account of the particular characteristics of COVID-19 such as its contagious nature and potential for asymptomatic transmission, which create the risk of spread and a need to impose restrictions at an aggregate as well as an individual level.

The Bill also amends the Civil Defence Emergency Management Act 2002. The objectives of those amendments are to ensure a nationally consistent approach to the response to and management of risks arising from COVID-19 and to better deal with concurrent emergencies during the COVID-19 response.

Purpose

The purpose of the Bill is to support a public health response to COVID-19 that—

  • prevents, and limits the risk of, the outbreak or spread of COVID-19 (taking into account the asymptomatic and contagious nature of COVID-19); and

  • avoids, mitigates, or remedies the actual or potential adverse effects of the COVID-19 outbreak (whether direct or indirect); and

  • is co-ordinated, orderly, and proportionate; and

  • has enforceable measures in addition to voluntary measures and public health and other guidance.

Power to set enforceable measures

The Bill aims to achieve this purpose by providing that, following the declaration of a state of emergency, the issuing of an epidemic notice, or an authorisation of the Prime Minister, the Minster of Health is given powers to issue orders to give effect to the public health response. This is a change to the position under the Health Act 1956, which made the Director-General of Health (exercising the powers of a medical officer of health) the decision maker for orders. The reasons for making the Minister of Health the decision maker are—

  • it is more consistent with existing legislative conventions. The scale and wide-ranging implications (health, economic, and social) of the decision making lend themselves to ministerial-level accountability, where a wider range of ministerial portfolios can have input. This positions Cabinet and the Director-General of Health in a more conventional decision-making relationship:

  • it allows for public health expertise to remain at the centre of decision making. It does this by providing that the Minister of Health is the decision maker, and requiring that the Minister of Health have regard to the advice of the Director-General of Health:

  • it allows for a wider range of Ministerial portfolios to have input, while allowing the advice of the Director-General of Health to be focused on public health needs and medical expertise.

The power to make orders under the Bill—

  • is broadly based on the powers in sections 70 and 92I of the Health Act 1956:

  • can be expressly exercised in respect of classes of people, businesses, and other activities (such as sporting events, weddings, funerals, etc), and may apply nationally or to a specified area:

  • allows for the same kind of measures to be put in place that have been imposed under the various Health Act 1956 orders to date and that are envisaged under the COVID-19 Alert Level Framework:

  • contains the ability to place conditions on the controls made under the orders.

The Minister must be satisfied that the order is appropriate to achieve the purpose of the Bill.

Safeguards

The Bill includes a number of safeguards around the exercise of the Minister’s power to issue orders. Before issuing an order, the Minister must have regard to advice from the Director-General of Health. The Minister may also have regard to any government decision on the risks. The Minister must consult the Prime Minister and the Minister of Justice, and may consult any other Minister that the Minister of Health thinks fit.

Orders are also disallowable instruments and will be automatically revoked if not confirmed by the House of Representatives. Orders must also be published in the Gazette and on an Internet site maintained by the New Zealand Government 48 hours prior to coming into force unless they need to come into force urgently to prevent or contain the outbreak or spread of COVID-19. Orders must also be presented to the House of Representatives as soon as practicable after they are made.

Enforcement

As with the orders made under the Health Act 1956, non-compliance with orders provided for in the Bill may result in imprisonment or a fine on conviction. A mental element (for example, the person acted intentionally) has been included in these offences to reflect the severity of conviction as a penalty. To further support the enforcement of health measures in the orders and to promote greater compliance, infringement offences have been added for non-compliance with orders. Businesses that do not comply with orders (for example, by not ensuring physical distance requirements are met by customers and staff) can be ordered to close for up to 24 hours. The policy objective underpinning these enforcement measures is to enable a graduated response approach to offending.

To enable enforcement of the measures in orders, the Police are given a power to enter premises, including private dwellinghouses and marae, without a warrant if they have reasonable grounds to believe that people have gathered there in contravention of an order and entry is necessary for the purpose of giving people a direction to comply with the order (for example, giving an order to disperse). Enforcement officers can enter without a warrant any premises other than private dwellinghouses and marae if they have reasonable grounds to believe that a person is failing to comply with any aspect of an order.

Departmental disclosure statement

The Department of the Prime Minister and Cabinet is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The Treasury has determined that this Bill is a direct COVID-19 response and has suspended the RIA requirements (in accordance with CAB-20-MIN-0138).

Clause by clause analysis

Clause 1 relates to the Title.

Clause 2 relates to commencement. This Bill comes into force on Royal assent.

Part 1Preliminary provisions

Clause 3 provides that the Bill is repealed on the earlier of the date that is 2 years after the date of its commencement and a date appointed by the Governor-General by Order in Council.

Clause 4 states that the purpose of the Bill is to support a public health response to COVID-19 that—

  • prevents, and limits the risk of, the outbreak or spread of COVID-19 (taking into account the contagious nature and potential for asymptomatic transmission of COVID-19); and

  • avoids, mitigates, or remedies the actual or potential adverse effects of the COVID-19 outbreak (whether direct or indirect); and

  • is co-ordinated, orderly, and proportionate; and

  • has enforceable measures in addition to the relevant voluntary measures and public health and other guidance.

Clause 5 defines certain terms used in the Bill.

Clause 6 provides that the transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

Clause 1 of Schedule 1 provides that certain orders made under section 70 of the Health Act 1956 prior to the commencement of this Bill continue in force as if made under the Bill for the purpose of being amended, extended or revoked.

Clause 2 of Schedule 1 provides that action taken by the Minister of Health or the Government in relation to a section 11 order prior to Royal assent are treated as having been taken by the relevant person under and for the purposes of this Bill (as if this Bill were already enacted and in force).

Clause 3 of Schedule 1 provides that existing proceedings are unaffected by this Bill.

Clause 4 of Schedule 1 provides for transitional matters relating to the amendment of the Civil Defence Emergency Management Act 2002.

Clause 7 provides that the Bill binds the Crown.

Part 2Provisions to limit the risk of outbreak or spread of COVID-19

Subpart 1—Section 11 orders

Clause 8 sets out prerequisites for all orders made under clause 11 (section 11 orders). An order may be made—

  • while an epidemic notice under section 5 of the Epidemic Preparedness Act 2006 is in force for COVID-19; or

  • while a state of emergency or transition period in respect of COVID-19 under the Civil Defence Emergency Management Act 2002 is in force; or

  • if the Prime Minister, by notice in the Gazette, after being satisfied that there is a risk of outbreak or spread of COVID-19, has authorised the use of section 11 orders (either generally or specifically) and the authorisation is in force.

Clause 9 sets out prerequisites for section 11 orders made by the Minister of Health. The Minister—

  • must have had regard to advice from the Director-General; and

  • may have regard to any decision by the Government on how to respond to those risks and avoid, mitigate, or remedy the effects of the outbreak or spread of COVID-19 (which decision may have taken into account any social, economic, or other factors); and

  • must consult the Prime Minister and the Minister of Justice, and may consult any other Minister that the Minister of Health thinks fit; and

  • must be satisfied that the order is appropriate to achieve the purpose of this Bill.

Clause 10 enables the Director-General of Health to make section 11 orders that apply only within the boundaries of a single territorial authority district, are urgently needed to prevent or contain the outbreak or spread of COVID-19, and are the most appropriate way of addressing those matters at the time (as compared with an order made by the Minister of Health).

Clause 11 enables orders to be made for the purpose of dealing with the risk of the outbreak or spread of COVID-19. Two broad areas may be the subject of an order, as follows:

  • an order may relate to actions of persons, by imposing requirements or prohibitions relating to matters including where they can stay, who they can associate with, physical distancing between individuals, carrying out activities involving close personal contact, circumstances requiring them to be isolated or quarantined, their participation in gatherings, and medical examination or testing in specified circumstances. These requirements could relate to classes of people or corporate bodies or other entities:

  • an order may relate to any places, premises, crafts, vehicles, animals, or other things, require actions to be taken, require compliance with any measures, or impose prohibitions relating to matters including their closure in specified circumstances, their entry into any port or place, gatherings in specified circumstances, their isolation, quarantine, or disinfection, or their testing.

The Minister’s order can also specify which requirements or prohibitions (made by either the Minister or Director-General) are infringement offences for the purposes of clause 25.

Clause 12 contains general provisions that apply to orders under clause 11. In particular, orders may—

  • impose different measures for different circumstances and different classes of persons or things:

  • apply generally to all people in New Zealand or to any specified class of people in New Zealand:

  • apply to any class of things or to all things for which a section 11 order may be made:

  • apply to different areas (subject to the area limitation for section 11 orders made by Director-General):

  • grant or provide for exemptions and authorisations.

However, no section 11 order may apply only to a specific individual or close premises described in section 70(1A) of the Health Act 1956, namely, a private dwellinghouse, any premises within the parliamentary precincts, a courtroom or Judge’s chambers, a court registry, or a prison.

Clause 13 states the legal effect of orders under clause 11. An order may not be held invalid just because it is inconsistent with the Health Act 1956 or any other enactment relevant to the subject matter of the order, or it confers any discretion on any person. However, a section 11 order—

  • does not limit or affect the application of the New Zealand Bill of Rights Act 1990:

  • does not prevent the filing, hearing, or determination of legal proceedings in relation to the making or terms of an order.

Subpart 2—Further provisions relating to section 11 orders

Form of orders, etc

Clause 14 states formal requirements that apply to section 11 orders, including requirements about their publication and duration. A section 11 order made by the Director-General expires 1 month after it comes into force, unless it is sooner revoked or extended. There is no automatic expiry for orders made by the Minister, but orders must be kept under review (and see clause 16 for the requirement for Parliamentary approval for an order to continue).

Clause 15 provides for the amendment or extension of orders.

Parliamentary approval

Clause 16 provides that a section 11 order made by the Minister is revoked (unless it is earlier revoked) on the expiry of the relevant period specified in the clause if no motion to approve the order is agreed to by the House of Representatives within that period.

Application of Legislation Act 2012

Clause 17 provides that section 11 orders are disallowable instruments for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives as soon as practicable.

Subpart 3—Enforcement, offences, and penalties

Authorised persons

Clause 18 provides for the authorisation of persons, and classes of persons, for the purpose of enforcing section 11 orders.

Clause 19 requires enforcement officers who are not constables in uniform to produce evidence of their identity when exercising powers under this Bill.

Enforcement

Clause 20 provides enforcement officers with powers of entry to enforce compliance with orders. An enforcement officer can enter, without a warrant, any land, building, ship, aircraft, or any other place or thing if they have reasonable grounds to believe that a person is failing to comply with any aspect of an order. However, entry onto a private dwellinghouse or marae without warrant is permitted only by a constable and if the constable has reasonable grounds to believe that people have gathered there in contravention of an order and entry is necessary for the purpose of giving a direction under clause 21.

Clause 21 enables enforcement officers to give directions to enforce compliance with orders.

Clause 22 enables constables (or persons acting under the authority of a constable) to close roads and public places for the purpose of enforcing related measures contained in a section 11 order. This clause also enables constables to stop vehicles for the purpose of enforcing an order that provides for restriction of movement.

Clause 23 enables enforcement officers to direct persons to provide identifying information.

Clause 24 enables enforcement officers to close businesses and undertakings that are operating in contravention of an order or contrary to any conditions imposed on their operation by an order. Closure may not exceed 24 hours in duration. This clause provides a right of appeal to a District Court Judge against the order to close the business or undertaking, which is based on the right of appeal in section 266 of the Sale and Supply of Alcohol Act 2012 against the closure of licensed premises.

Offences

Clause 25 creates a criminal offence of intentionally failing to comply with a section 11 order and the penalty is imprisonment for up 6 months or a fine of up to $4,000. This clause also creates an infringement offence of failing to comply with a section 11 order and the penalty is an infringement fee of $300 or a fine imposed by a court not exceeding $1,000.

Clause 26 creates offences relating to the exercise of enforcement powers. The penalties for these offences are the same as the penalties for a criminal offence under clause 25.

Provisions relating to infringement offences

Clauses 27 to 31 contain standard provisions relating to infringement offences. Schedule 3 sets out forms for infringement notices and reminder notices, which apply in the absence of forms prescribed by regulations made under clause 32.

Subpart 4—Miscellaneous provisions

Clause 32 contains regulation-making powers relating to forms for infringement notices and reminder notices, and to administrative matters.

Clause 33 applies section 129 of the Health Act 1956 to persons acting under the authority of this legislation and confers on those persons immunity against civil and criminal proceedings (except when acting in bad faith or without reasonable care).

Part 3Amendments to Civil Defence Emergency Management Act 2002

Clause 34 provides that Part 3 amends the Civil Defence Emergency Management Act 2002 (the Act). Each of these amendments is repealed automatically when this Bill is repealed.

Clause 35 amends section 66 of the Act to provide that, if a state of national emergency for COVID-19 is declared after the commencement of this clause, any local state of emergency for other emergencies that are not related to COVID-19 are not terminated.

Clause 36 amends section 68 of the Act to require the approval of the responsible Minister before a state of local emergency may be declared under section 68 for COVID-19. This will not prevent a state of local emergency being declared for any other emergency that is not related to COVID-19.

Clause 37 amends section 94B of the Act to prevent notice of a local transition period being given for any part of New Zealand for COVID-19 without the prior approval of the responsible Minister. This will not prevent notice of a local transition period being given for any other purpose.

Clause 38 amends section 94E of the Act to provide that a national transition period that relates to COVID-19 is not terminated if a state of local emergency is declared as a result of an emergency that is not related to COVID-19.

Part 4Amendment to Oranga Tamariki Act 1989

Clause 39 provides that Part 4 amends the Oranga Tamariki Act 1989 (the Act).

Clause 40 amends section 272 of the Act, which relates to the jurisdiction of the Youth Court and children’s liability to be prosecuted for criminal offences. This clause amends section 272 in relation to the Youth Court’s jurisdiction over infringement offences against this Bill. If a young person is charged with an infringement offence against this Bill and any other offence for which the young person is required to be brought before the Youth Court to be dealt with, and the offences arise out of the same event or series of events, the offences are dealt with by the Youth Court.