1.  New Zealand is a unitary, parliamentary democracy. It does not have a complete written or supreme constitution. However, constitutional rules are set out in a variety of different instruments and other sources, such as a skeletal constitutional statute, a handful of important statutes, a statutory bill of rights, letters patent issued under the prerogative, a cabinet manual containing executive conventions and protocols, and a treaty agreed with indigenous Māori.¹ New Zealand is formally a constitutional monarchy, with Queen Elizabeth II in the United Kingdom reigning as Sovereign. However, in reality, head of state functions are performed by a local Governor-General.

2.  Parliament is unicameral, with a House of Representatives of 120 members of Parliament, elected every three years under a proportional electoral system (mixed-member proportional (MMP)). At law, Parliament has full power to make law, which it does by enacting primary legislation (statutes).

3.  Cabinet, led by the Prime Minister and made up of around 20 ministers, is the main decision-making body of executive government. A handful of ministers outside Cabinet and parliamentary under-secretaries also hold executive roles. The Prime Minister and other ministers are formally appointed by the Governor-General following elections. By convention, the Governor-General appoints the party or group of parties within Parliament able to command the confidence of the House. Proportional representation means multi-party government is almost always required, with government parties entering full coalition agreements or more limited support agreements. The Prime Minister determines ministerial portfolios, subject to matters agreed in coalition and support agreements. It has been common recently for support parties to hold ministerial portfolios outside Cabinet and for those ministers to be subject to limited collective responsibility. Ministers direct a non-partisan public service made up of government departments and other agencies.

4.  Many powers of executive government are formally vested in the Governor-General, on behalf of the Sovereign. However, in reality and by convention, the Governor-General exercises those powers in accordance with the advice of the government, so long as the government maintains the confidence of the House. Other powers are vested by statute in ministers and/or officials. Whether ministers and government have a residual freedom to act—beyond statute law, common law, or the prerogative—akin to the power of natural persons continues to be debated.² Ministers and others within executive government have various powers to enact secondary legislation, including regulations, statutory instruments, and orders. Non-statutory guidance may also be provided through policies, advice, and other soft law.

5.  The judiciary is made up of senior courts (High Court, Court of Appeal, and Supreme Court), as well as district and other specialist courts. The senior courts determine applications for judicial review of administrative action and other similar public law claims. Although the courts can invalidate administrative decisions and secondary legislation, they cannot strike down primary legislation. The courts also develop the common law through adjudication in individual cases. Prosecution of offences, other than the most serious, takes place in the District Court, at the instigation of constables.

6.  Policing is undertaken by constables as part of the New Zealand Police, headed by the Commissioner of Police. The Commissioner and constables must act independently of ministers when undertaking operational policing activities.³

7.  The Ministry of Health, headed by the Director-General of Health, leads public health protection throughout the country, in conjunction with district health boards.⁴ District health boards (20) are partly-elected by local residents and are responsible for delivering health services and running public hospitals within their districts, as funded by central government through the Ministry of Health. District health board-owned public health units (12) deliver many public health services, in conjunction with a range of non-government organizations; key statutory officials, including medical officers of health, are employed in these units.

8.  Local authorities (78) have a broad community wellbeing mandate within their districts and some responsibility for environmental health (eg, food hygiene, noise, sanitary buildings); however, they have no direct role in public health generally, social welfare or education.⁵

9.  These institutional arrangements did not materially change during the pandemic, other than the pandemic fuelling dynamics, and occasionally heightening friction, between some institutions.

10.  New Zealand law does not provide for any formal declaration of an emergency under its constitutional law. However, health and civil defence legislation allow for declarations of emergency (see Part II.B below). There is limited power under this legislation for notices and orders to override primary legislation but these powers were not heavily used.

11.  New Zealand is formally dualist at international law but with some monist practices.⁶ It has not derogated from any relevant international treaties because of the pandemic. Some international treaties have been implicated during the pandemic but have not been central in civic discourse. The International Covenant on Civil and Political Rights has been implemented in a statutory bill of rights, the New Zealand Bill of Rights Act 1990, and the consistency of the government’s response with the Bill of Rights Act has been a key concern.⁷ International obligations have also been relevant to border restrictions; for example, the Covid-19 Public Health Response (Maritime Border) Order 2020 restricts the entry of foreign ships but reserves two narrow exceptions in accordance with the United Nations Convention on the Law of the Sea.⁸

12.  As a member of the World Health Organization (WHO), New Zealand is bound by the International Health Regulations 2005 (IHR), without reservation, and has agreed to fully implement the regulations.⁹ The WHO’s 2018 report assessed that New Zealand ‘has comprehensive legislation in line with IHR requirements’ and ‘benefits from a system and culture of continuous, collaborative improvement through learning from exercise and real-world events that has led to continued investment in preparedness’.¹⁰ The International Health Regulations are referenced in planning documents, including the government’s influenza pandemic plan and national civil defence emergency management plan, but have not been directly relied on in Covid-19 legal instruments or otherwise been obviously referenced in official guidance.¹¹

13.  A network of regulatory and other emergency powers were used in response to the virus. Health or Covid-19 orders, issued under powers activated by particular emergency declarations, were the main instruments used to impose nationwide and case-by-case restrictions (as explained further in Part II.C below).¹² Civil defence and epidemic legislation was also engaged to unlock emergency powers and fortify the health response.

14.  The Civil Defence Emergency Management Act 2002 is the primary ‘all hazards’ emergency regime.¹³ It allows for the declaration of states of national or local emergency, if an emergency has occurred or may occur. An emergency is defined as a ‘situation’ that results from ‘any happening’ (broadly defined to include things like earthquakes, eruptions, floods and other natural disasters, infestations, epidemics, and warlike acts or attacks) that ‘causes or may cause loss of life or injury or illness or distress or in any way endangers the safety of the public or property in New Zealand or any part of New Zealand; to qualify as an emergency, the situation must be one that cannot be dealt with by emergency services or otherwise requires a significant and coordinated response.¹⁴ National, as opposed to local, emergencies are those of such an extent, magnitude, or severity that require management beyond the resources of local emergency management groups.¹⁵ The declaration of a state of national emergency allows the coordination of the response by the Director of Civil Defence Emergency Management and activates various directive and requisition powers reposed in civil defence controllers and constables. A state of emergency may also trigger special powers in other more specific emergency statutes, such as the infectious diseases regime in the Health Act 1956. States of emergency last for seven days unless renewed, and can be renewed multiple times.¹⁶ Transition periods may also be declared, allowing some special powers in order to support a transition from the immediate emergency response to a recovery phase.¹⁷ Transition periods last for 90 days and are renewable.

15.  A state of national emergency was declared on 25 March 2020 under the Civil Defence Emergency Management Act 2002 and renewed six times, until finally expiring on 13 May 2020.¹⁸ On expiration of the state of national emergency, a national transition period was declared and applied until terminated on 8 June 2020.¹⁹

16.  The Epidemic Preparedness Act 2006 is specific emergency legislation addressing epidemics, supplementing general civil defence legislation. The Prime Minister may, on advice of the Direction-General of Health and agreement of the Minister of Health, issue an epidemic notice declaring that the effects of ‘an outbreak of a quarantinable disease’ are likely to ‘significantly disrupt’ essential governmental and business activity.²⁰ The issue of an epidemic notice automatically triggers the infectious diseases regime in the Health Act 1956 (discussed further below). An epidemic notice also allows ministers to activate specific dormant emergency provisions previously embedded in social security, immigration, penal, parole, and other legislation.²¹ An epidemic notice also unlocks a (limited) Henry VIII power, allowing ministers to issue notices to ‘modify’ (ie relax) requirements or restrictions in legislation.²² An epidemic notice lasts for three months but can be renewed.²³

17.  An epidemic notice notifying an outbreak of Covid-19 was also issued in late-March 2020 under the Epidemic Preparedness Act 2006.²⁴ As at 15 December 2020, the epidemic notice has been renewed twice and continues in force.²⁵

18.  The declaration of the state of emergency and issue of an epidemic notice were, as required, subsequently notified to Parliament and subject to debate, although Parliament has no role in approving these emergency declarations.²⁶

19.  The Health Act 1956 contains a specific infectious diseases regime.²⁷ The regime, amongst other things, gives medical officers of health special directive powers in order to prevent the outbreak or spread of an infectious disease; these powers are activated when a state of emergency has been declared, an epidemic notice issued or when otherwise authority by the Minister of Health.²⁸ Directions are usually issued in written form—but, except for one particular power, need not be—and became commonly known as health orders. These special powers are traceable back to the turn of last century, then used to combat outbreaks of the plague, polio, and tuberculosis.²⁹

20.  Covid-19 was declared to be a qualifying infectious disease on 9 March 2020.³⁰ Numerous health orders were issued (as explained further in Part II.C below).

21.  The Covid-19 Public Health Response Act 2020 was passed in May 2020 to provide specific emergency health powers to combat Covid-19.³¹ The new regime was designed to supersede the special powers to combat infectious diseases under the Health Act 1956, although the latter powers remained available. The principal mechanism under the Act is the issue of Covid-19 orders, requiring people to comply with public health restrictions and measures (see Part II.C below). While the Health Act 1956 regime had been practically effectual, the Covid-19 Public Health Response Act 2020 is more bespoke, contains a wider range of powers and is built on a more modern and robust deliberative framework; the new Act also avoids the doubts that had been raised about the legal underpinnings of some of the health orders made under the Health Act 1956 (see Part II.C below).³² The bill was passed in two days (12–13 May 2020), fast-tracked under urgency, without the usual select committee scrutiny and public consultation.³³

22.  The Opposition—the group of political parties and MPs not in government—opposed the bill, raising process, design, civil liberties, and enforcement concerns.³⁴ The response from civil society organizations and the public was mixed: concern was raised about human rights and inadequate accommodation of the views and interests of Māori; however, there was also acknowledgement of a need for a more tailored and democratic framework for restrictions.³⁵ The swift passage of the legislation, under urgency and without public consultation, was strongly criticised. As a result, the government prompted an immediate select committee inquiry into the Act and its operation—an innovative initiative that was welcomed.³⁶

23.  The Covid-19 Public Health Response Act 2020 is subject to a sunset clause: it must be renewed by a resolution of Parliament every 90 days and lapses finally within two years (section 3). In addition, Covid-19 orders may only be enacted if emergency settings have been triggered, that is, by an epidemic notice, state of emergency, or prime ministerial authorisation (section 8).

24.  The Covid-19 Public Health Response Act 2020 has been renewed twice; the motions renewing the legislation were passed by majority, with the main opposition party opposing on both occasions.³⁷ Since being enacted, minor amendments have been made to the Act twice.³⁸

25.  The Covid-19 Public Health Response Act 2020 is now the main legislative framework for imposing public health measures and numerous Covid-19 orders have been issued (as explained further in Part II.C below).

26.  Other legislation was also passed to assist with the response. Six budget-related statutes provided some economic and social assistance;³⁹ a number of other bills provided further support or implemented temporary pandemic-related governance and administrative arrangements.⁴⁰ Most of these bills were fast-tracked and passed under urgency, although budget-related statutes are ordinarily passed under expedited processes.

27.  The primary mechanisms for executive rule-making imposing public health measures have been the powers to issue health and Covid-19 orders under the Health Act 1956 and Covid-19 Public Health Response Act 2020 respectively.

28.  Under section 70 of the Health Act 1956, a medical officer of health may, among other things, require people to isolate or be quarantined, close premises (other than dwelling houses and specified civic premises), and forbid congregation in public. This power may only be used if emergency prerequisites are met (ie state of emergency, epidemic notice, or ministerial authorisation) and only for the purpose of ‘preventing the outbreak of spread of an infectious disease’; no other deliberative considerations are prescribed. During the pandemic, the Director-General of Health, as a designated medical officer of health, exercised these powers throughout the entire country.⁴¹ The location of the key regulatory power in an unelected senior health official was not without difficulty and some concern was expressed about its appropriateness.⁴² Care needed to be taken to avoid the exercise of the statutory power of regulation being unduly dictated by ministers. A pragmatic approach was adopted. The policy direction for the response to the virus was set by the Prime Minister and Cabinet, through an extra-legal alert level framework (see Part II.D below), and concomitant restrictions were promulgated by the Director-General of Health. When making changes to alert levels, Cabinet worked closely with the Director-General, in the light of his expert advice and willingness to modify lockdown conditions.

29.  Under the Covid-19 Public Health Response Act 2020, a designated minister—and, in limited circumstances, the Director-General of Health—may issue Covid-19 orders requiring people to take or refrain from ‘any specified actions’ or comply with ‘any measures’ in order to prevent the risk of the outbreak or spread of the virus (sections 9, 10, and 11). Originally the legislation mandated the Minister of Health as decision-making; however, the legislation was amended to mandate the minister responsible for the administration of the Act after portfolio responsibilities for the Covid-19 Response and Health were split following the election.⁴³ The requirements may include, without limitation, isolation, quarantine, restricted movement, physical distancing, medical testing, restricted business activities, and contact tracing. The Act sets out a number of matters that must be considered and assessed by the minister before making an order, namely, satisfaction that orders achieve the statutory purpose (including proportionality in the response); consideration of any advice from the Director-General of Health; consultation with the Prime Minister, Minister of Justice, Minister of Health, and other relevant ministers; consideration of government decisions already taken, ie Cabinet decisions on alert levels; and satisfaction of rights-consistency (section 9). Covid-19 orders must be publicly promulgated at least 48 hours before they come into force, except when urgency is required or when restrictions are being removed or reduced (section 14). Orders must be confirmed by Parliament within 60 days or else they lapse (section 16).

30.  Numerous health and Covid-19 orders were issued imposing a variety of restrictions, such as mandatory isolation, quarantine, closure of premises, physical distancing, restrictions on gatherings, and contact tracing requirements (see Parts IV.A.3 and IV.A.8 below). As at 15 December 2020, 10 health orders were made under the Health Act 1956, with one remaining in force; 24 Covid-19 orders (including amendment orders) were made, with 14 remaining in force.⁴⁴ Only one order imposing restrictions, in relation to the regional outbreak in Auckland, has been made urgently without the standard 48 hour notice period.⁴⁵ So far, all Covid-19 orders considered by Parliament have been confirmed.⁴⁶

31.  As secondary legislation, health and Covid-19 orders may be invalidated by the courts, if they are contrary to their empowering statute or unjustifiably limit protected rights under the New Zealand Bill of Rights Act 1990.⁴⁷ Covid-19 orders prevail over statutes other than these to the extent of any inconsistency.⁴⁸ Health and Covid-19 orders are also subject to parliamentary scrutiny by the Regulations Review committee and may be disallowed by the House of Representatives.⁴⁹

32.  Some early health orders were judicially reviewed (unsuccessfully), mainly to test whether section 70 of the Health Act 1956 allowed the Director-General of Health to require all people in the country to isolate, regardless of whether they were infected or suspected of being infected (see Part IV.A.1 below).⁵⁰ Health and Covid-19 orders were also scrutinised by the Regulations Review committee (see Part III.A below) but none has been disallowed.

33.  In addition to regulating health risks through health and Covid-19 orders, ministers may issue modification orders under the Epidemic Preparedness Act 2006 modifying, suspending, or waiving any legislative requirement or restriction. Such orders can be made if modification is necessary to enable the ‘effective management’ of a quarantinable disease (sections 11 and 14) or reasonably necessary to address requirements or restrictions that are ‘impossible or impracticable’ to comply with due to a serious outbreak of disease (sections 12 and 15). Modification orders can be made with immediate or prospective effect. Immediate modification orders must be presented to the House of Representatives promptly; orders are subject to scrutiny by the Regulations Review committee and may be disallowed by the House. Epidemic management notices may activate dormant statutory provisions designed for arrangements during an epidemic and any prospective modification orders (section 8).

34.  The government issued a number of notices and orders under the Epidemic Preparedness Act 2006, modifying a variety of requirements dealing with matters such as oaths, wills, collective bargaining, social security, and administrative processes.⁵¹

35.  Guidance and communications have been central to the government’s response, in combination with strict legal restrictions imposed through health and Covid-19 orders.⁵² At the heart of the communications strategy was an extra-legal ‘alert level framework’ publicly signalling the prevailing pandemic conditions and expected restrictions on day-to-day life:⁵³

• •  Level 4: Full lockdown, with limited permissible movement.

• •  Level 3: Lockdown, with more extensive permissible movement.

• •  Level 2: Some restrictions on comingling, especially the size of gatherings, physical distancing requirements for businesses and hospitality, and other low-level restrictions (sometimes subject to change).

• •  Level 1: Largely restriction-free, other than border controls and contact tracing requirements.

36.  The alert levels were, by-and-large and with at least one major exception discussed below, also reflected in the rules promulgated in the applicable health and Covid-19 orders (see Part IV.A.1 below). In this sense, the alert level guidance is intended operate as a shorthand for the applicable legal rules and recommended voluntary precautions. Alert level lexicon is now common parlance.

37.  The alert level framework was announced by the Prime Minister on 21 March 2020, days before alert levels were elevated and a nationwide lockdown was imposed.⁵⁴ The general framework has remained stable over time but there have been some minor adjustments to the nature of restrictions expected in some of the alert levels, although much of this detail is addressed in the health and Covid-19 orders, not the framework itself.

38.  Guidance was also provided by the Prime Minister, other ministers, Director-General of Health, and officials at (widely broadcast and watched) daily media briefings.⁵⁵ Both the Prime Minister and Director-General were feted for their charismatic and effective communications during these briefings.⁵⁶ Key guidance and health precautions were advertised on television, radio, billboards, and stickers in public places. On the eve of the lockdown, a national emergency management agency alert was sent to all mobile phones in the country, advising people to ‘follow the rules and stay at home’.⁵⁷

39.  Dissonance between official advice and underlying legal obligation was an ongoing concern. Some guidance was intended to be advisory and non-binding only. Many instances of advisory and non-binding guidance were legitimate and authentic, such as early travel advisories, health precautions for those at high risk or displaying symptoms, encouragement to wear masks while in public, or hand-washing reminders. Other guidance had a mandatory character, suggesting legal enforcement for non-compliance. Most guidance reflected underlying legal obligations but, in some instances, other urgings did not. Emblematic was the direction that people should isolate at home in their household bubbles which, for the first 9 days of lockdown, was not reflected in an operative health order.⁵⁸ The High Court declared these statements unlawful and in breach of New Zealand Bill of Rights Act 1990 (see Part IV.A.1 below).⁵⁹ Some other instances of dissonance were also evident, especially on the scope of permissible activities during lockdown, aspects of gathering rules and arrangements at educational institutions.⁶⁰ Over time, the government sought to reduce the instances of dissonance, particularly by more clearly explaining when health precautions were only advisory and non-binding.⁶¹

40.  Parliament was heavily involved in holding the government to account during the pandemic.⁶² Proceedings of the House of Representatives were only disrupted for a short period, from 25 March 2020 to 28 April 2020; some pragmatic innovation to the operation of select committees provided ongoing scrutiny while the House itself was not sitting (Part III.B below).

41.  Much of the business of the House provided opportunities to scrutinise the government’s response. The Prime Minister and ministers made a number of ministerial statements to the House about the pandemic and response—such statements are debateable by other party leaders.⁶³ Daily oral questions continued, with most questions focusing on the pandemic and response.⁶⁴ General debates continued, usually weekly, again focusing on the pandemic and response.⁶⁵ Legislative debates often focused on the pandemic and response, especially given the large amount of pandemic-related bills progressed. Written parliamentary questions continued, with arrangements slightly modified during the lockdown.⁶⁶

42.  Select committees kept up their scrutiny of government and other legislative work (see Part III.B below). The oversight work of three committees was especially notable.

43.  An Epidemic Response Committee, chaired by the leader of the opposition and with an opposition majority, was established on 25 March 2020 to scrutinise the government’s response to the pandemic.⁶⁷ This innovative committee effectively became New Zealand’s ‘parliament-in-miniature’ during the alert level 3 and 4 lockdown. It met three mornings a week, questioning key ministers and officials, as well as hearing from experts and those adversely affected. The committee was quite effective, especially in its first few weeks of operation, and played an important agenda-setting role in political discourse. But its proceedings eventually became more partisan and a little less constructive once the height of the emergency passed. The committee was disestablished on 26 May 2020, once usual parliamentary conditions were fully restored.⁶⁸

44.  The Regulations Review Committee scrutinised health and Covid-19 orders. The Committee routinely reviews all secondary legislation and hears complaints from the public, assessing secondary legislation against constitutional and legislative design principles set out in standing orders; it also reviews regulation-making powers in bills.⁶⁹ The Committee commenced an inquiry into pandemic-related instruments.⁷⁰ The Committee raised a number of concerns about initial health orders—presaging some of the concerns later litigated in subsequent judicial review proceedings—and invited the government to clarify a number of matters in later Covid-19 orders.⁷¹ The positive influence of the Committee’s advice can be traced in later health orders; for example, the alert level 3 health order reflected the Committee’s recommendation about greater clarity and avoiding inappropriate incorporation by reference.⁷² No orders were referred to the House of Representatives for disallowance.

45.  The Finance and Expenditure Committee undertook a review into the Covid-19 Public Health Response Act 2020, hearing submissions on the just-passed legislation and its subsequent operation.⁷³ The Committee endorsed the need for the legislation and spoke favourably about the checks-and-balances it incorporated. It also recommended a number of improvements but, as at 15 December 2020, none has as yet been implemented.

46.  Other subject select committees also scrutinised the government’s response. For example, the Minister of Health and Director-General of Health were questioned by the Health committee on the response when the term of Parliament was extended slightly.⁷⁴

47.  Parliament’s business was only slightly disrupted during the pandemic.⁷⁵ Modified arrangements did not significantly affect the effectiveness or operation of Parliament, although much of its business was expedited.

48.  The House of Representatives adjourned for just over a month during the alert level 4 lockdown (from 25 March 2020 to 28 April 2020). The House resumed at alert level 3, sitting for three working weeks while the country was still locked down. Sessional orders were adopted to accommodate physical distancing and other health requirements.⁷⁶ For example, the proxy voting rule was relaxed (ordinarily a party whip may cast all their party’s votes so long as 75% of the party’s MPs are present in the parliamentary precinct; the presence threshold was removed in its entirely) and only a quarter of MPs attended in person. Unlike some other Parliaments, the House did not need to adopt virtual or hybrid proceedings or enable electronic voting as almost all votes are conducted as party votes where votes are cast on behalf of MPs by their party whips. Over this period, the business of the House was mainly focused on the budget and pandemic-related legislation, along with scrutiny of the executive’s emergency response. There was one embarrassing instance where the wrong version of a bill was passed into law, fast-tracked under urgency through all three readings in one day, before anyone noticed.⁷⁷

49.  Select committees continued to perform their usual functions during the alert level 3 and 4 lockdown, considering draft bills (often pandemic-related) and scrutinising the operation of government. Many committees continued to meet by electronic means with remote participation—as authorised by the Speaker—and later in-person when alert levels allowed.⁷⁸

50.  Usual operation of Parliament resumed in mid-May 2020, as the country moved to alert level 2 on 14 May 2020. Proceedings continued without interruption until Parliament was eventually dissolved for the general election on 6 September 2020—slightly later than originally scheduled, due to the four week delay to polling day after the small regional outbreak in Auckland.⁷⁹

51.  The operation of the courts reflected the conditions of the pandemic, while recognising their essential constitutional function. The Chief Justice, New Zealand’s most senior Supreme Court judge and head of the judiciary, recorded that courts were ‘an essential service’ and ‘must continue to uphold the rule of law and to ensure that fair trial rights, the right to natural justice and rights under the New Zealand Bill of Rights Act are upheld’.⁸⁰ A series of protocols, practice notes, and guidelines were issued for the various courts setting out special arrangements during lockdown and elevated alert levels.

52.  During the alert level 3 and 4 lockdown (25 March 2020 to 14 May 2020), ‘priority’ and ‘urgent’ proceedings continued to be heard.⁸¹ The relevant criteria was expressed differently for different courts but generally included proceedings dealing with the liberty of individuals, personal safety and wellbeing, and other matters in which resolution was time-critical. Some courts also continued to hear proceedings without witnesses that could be conducted by remote means. Specialist courts not dealing with priority matters, such as the Environment Court, were adjourned. Courts operated as much as possible with virtual proceedings and remote hearings. During alert level 2, from 14 May 2020 onwards, proceedings generally resumed (other than jury trials), subject to health precautions and physical distancing requirements.⁸²

53.  Jury trials were suspended during the height of the emergency, from 28 March 2020 to the end of July 2020.⁸³ No remote jury trials were conducted. Jury trials resumed from 1 August 2020, apart from a short suspension in Auckland during the regional level 3 lockdown (11 August 2020 to 7 September 2020).⁸⁴ Concerns have been raised about the backlog created by this temporary suspension of jury trials.⁸⁵

54.  Rules governing court proceedings were modified to take account of the pandemic and associated disruption. Emergency provisions allowed judges to modify any rule of court to take account of the effects of a quarantinable disease, when necessary in the interests of justice.⁸⁶ A number of judges modified rules in ad hoc instances.⁸⁷ The High Court and Family Court rules were amended, providing for the closure of registries, mode of participation in hearings, and modified arrangements for the swearing, filing, and service of documents;⁸⁸ similar modifications were made to civil proceedings in the District Court through the issue of a practice note.⁸⁹

55.  An existing regime allowed remote participation and the courts made heavy use of virtual hearings both during and after the lockdown.⁹⁰ Some concerns were raised about the appropriateness of the arrangements for remote hearings, including the adequacy of the technology adopted.⁹¹

56.  Courtrooms, judges’ chambers, and court registries were statutorily exempt from the closure of premises under health and Covid-19 orders.⁹² During the level 4 lockdown, travel to court was intended to be exempt from isolation requirements. Whether this was properly legally mandated was unclear due to clumsy drafting; while travel to access essential businesses was permitted, the relevant health order did not define courts as an essential business because the courts were statutorily exempt from closure.⁹³ During level 3 lockdown, travel to attend court was specifically prescribed as permissible personal movement.⁹⁴ Other than for those required to attend, public access to courthouses was restricted during alert levels 2, 3, and 4.⁹⁵

57.  The judiciary’s response to the pandemic was led by a Judicial Steering Group on Covid-19, commissioned by Winkelmann CJ and chaired by Miller J, allowing the protocols and arrangements to be coordinated amongst heads of bench.⁹⁶ The arrangements were generally seen as essential and pragmatic. However, the legal basis for some of the protocols and guidelines—other than those formalised in practice notices or rule amendments—was unclear, especially given the power to regulate proceedings is usually vested in individual judges.⁹⁷ In practice, a singular and coordinated response was achieved, although the management of proceedings during the pandemic is understood to have exacerbated tensions between the judiciary and Ministry of Justice court staff.

58.  The courts heard a number of challenges to action taken by government during the pandemic, most significantly, a partly successful judicial review of the level 3 and 4 lockdown (discussed in Part IV.A.1 below).

59.  The general election was originally scheduled for 19 September 2020 but was briefly delayed after a small regional outbreak of the virus.⁹⁸ As Parliament had not been formally dissolved (although was set to be the day after the outbreak emerged), the Prime Minister retained exclusive power to advise the Governor-General on dissolution of Parliament and specification of polling day, subject to the maximum term of Parliament.⁹⁹ After consulting other political parties—most of which, including coalition and support parties, favoured a delay—and electoral officials, the Prime Minister deferred the election for four weeks until 17 October 2020.¹⁰⁰ Parliament was dissolved for the general election on 6 September 2020, sitting for three weeks further than anticipated.

60.  Once Parliament dissolves and an electoral writ is issued, the power to delay the election shifts from the Prime Minister to the Chief Electoral Officer. In the case of ‘unforeseen or unavoidable disruption’, including disruption caused by an epidemic, polling day can be delayed by three days and then by (unlimited) periods of up to seven days.¹⁰¹ Reliance on these emergency provisions was anticipated if any further outbreak arose but in the end this did not prove necessary.

61.  The general election, combined with two policy referendums, took place on 17 October 2020, while the country was at alert level 1. A Covid-19 order was promulgated providing for contact tracing and physical distancing at polling booths, as well as overriding any travel and gathering restrictions in any other health orders, although none applied on polling day.¹⁰² Other health precautions, such as disposable pens to mark ballots, were also adopted. Voter turnout was not affected by the pandemic; over 82% of the voting population voted.¹⁰³

62.  The governing Labour party significantly increased its support (from 36.9% to 50.0%) and was returned to power as the lead party of government—absent its former coalition partner, NZ First, but continuing in cooperation with the Green Party.¹⁰⁴ The main opposition party, National, fared poorly (down from 44.5% to 25.6%), after polling at 46% in the month before lockdown.¹⁰⁵ The election result is widely interpreted as a strong endorsement of the government’s response to the pandemic.¹⁰⁶

63.  The response to the pandemic was managed on an all-of-government basis, initially as part of the civil defence’s National Crisis Management Centre and subsequently as a business unit within the Department of Prime Minister and Cabinet.¹⁰⁷ Scientific advice was generated from a number of sources including from public health officials in the Ministry of Health (through the Director-General of Health and Director of Public Health, in accordance with usual responsibilities)¹⁰⁸and the Prime Minister’s Chief Scientific Advisor.¹⁰⁹ These officials drew heavily on university academics for modelling reports.¹¹⁰

64.  The Director-General of Health, as chief executive of the Ministry of Health, leads and coordinates ministry advice; they are expected to act independently when making certain public health decisions and recommendations mandated by statute—such independence arising from common law principle rather than explicitly directed by statute.¹¹¹ The Director of Public Health assists the Director-General in providing advice to ministers on public health matters; the independence of the Director of Public Health—from the Director-General of Health and, implicitly and consequentially, ministers—when providing advice is enshrined in legislation.¹¹² The office of the Prime Minister’s Chief Scientific Advisor is not recognised in legislation; their role is established through the Department of the Prime Minister and Cabinet, where they are appointed as the sole member of a Science Advisory Committee.¹¹³ The terms of reference recognise their independence when providing scientific advice, other than the application of the ‘no surprises’ principle for public statements. Much of the scientific advice provided by officials and others has been made public, as part of standard Cabinet and department proactive disclosure practices.¹¹⁴

65.  Pandemic legislation specifically requires ministers take into account advice from the Director-General of Health. For example, the Prime Minister must receive and consider a written recommendation from the Director-General before issuing an epidemic notice,¹¹⁵ ministers may only make some types of modification orders if the Director-General has recommended them and states they are necessary,¹¹⁶ and the Minister for the Covid-19 Response must have regard to advice from the Director-General about the risks of the virus and appropriateness of any measures before making a Covid-19 order, but need not receive specific advice on the proposed order.¹¹⁷ Cabinet’s key decisions about alert levels under the extra-legal alert level framework are also based on recommendations from the Director-General of Health.¹¹⁸ Scientific advice is usually provided in the form of a report for consideration; however, the pressing context also meant some advice was provided in other forms, such as amalgamation into ministerial or all-of-government reports or orally at key meetings.¹¹⁹

66.  Te Rōpū Whakakaupapa Urutā, a group of Māori medical and health experts, also independently generated advice and guidance on Covid-19 especially for Māori, partly catalysed by concern the government’s response failed to reflect the interests and expertise of Māori.¹²⁰

67.  Press reportage was not restricted during the pandemic. News production and broadcast media were treated as an essential business during the levels 3 and 4 lockdown.¹²¹ Daily government briefings were broadcast live by media organizations and remain accessible, with many transcribed.¹²²

68.  Statutory provisions governing freedom of information requests set out in the Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 were not amended during the pandemic. However, the processing of requests reflected the disruption and additional demands on departments; it was not uncommon for departments to extend the timeframe for making decisions on requests under existing statutory provisions. The Ombudsman, who is responsible for hearing complaints about official information requests—in addition to maladministration complaints (see Part III.G below)—adopted informal arrangements, including a triage system, to ensure proper disclosure of important and pressing official information, while also avoiding placing undue administrative pressure on departments.¹²³

69.  All Cabinet papers and minutes relating to the pandemic were released month-by-month, with only minor redactions.¹²⁴ Strictly speaking, this proactive disclosure of Cabinet documents has been routine for a couple of years;¹²⁵ however, the process assumed heightened significance during the pandemic and generated some in-depth reportage.¹²⁶

70.  The Ombudsman has the power to inquire into maladministration of departments and officials; recommendations made by them as a result are almost always accepted and implemented by departments.¹²⁷ The Ombudsman upheld a few complaints relating to pandemic measures including, for example, complaints about a failure to consult residents about use of apartment hotels for managed isolation;¹²⁸ and cancellation of face-to-face access between mother and son in state care.¹²⁹ The Ombudsman is also responsible for monitoring the treatment of people in health and disability places of detention, for the purposes of the Optional Protocol to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. During the level 3 and 4 lockdown, the Ombudsman inspected prisons, aged care facilities, and mental health and addiction facilities.¹³⁰ While generally positive, the Ombudsman raised some concerns about the conditions and treatment of prisoners, eg lack of access to fresh air. The Ombudsman has also started inspecting managed isolation and quarantine facilities.¹³¹

71.  The Controller and Auditor-General is responsible for monitoring government expenditure, undertaking performance audits of departments and inquiring into the use of resource by public entities.¹³² One instance of (relatively minor) unauthorised spending was identified.¹³³ An inquiry was undertaken into the Ministry of Health’s management of personal protective equipment (PPE), concluding with a number of adverse findings and recommendations for improvement.¹³⁴ A performance audit of the management of the government wage subsidy has also commenced.¹³⁵ The Controller and Auditor-General also provided advice and guidance to public entities about governance during the pandemic.¹³⁶

72.  The Independent Police Complaints Authority is responsible for investigating complaints about police misconduct.¹³⁷ As at 1 November 2020, the Authority has not reported any investigations about policing during the pandemic.

73.  New Zealand has ultimately adopted an elimination strategy to combat the pandemic, that is, ‘a range of control measures in order to stop the transmission of Covid-19’.¹³⁸ Initially, until May 2020, the government adopted a suppression strategy based on an existing influenza pandemic plan.¹³⁹ The aim was to flatten the curve of cases and delay the epidemic peak through a range of mitigation measures, thereby reducing the health effects of the virus. The central mitigation measure was a strict nationwide lockdown, imposed for seven weeks to break the chain of transmission. From May 2020, following a high degree of success in avoiding community transmission and stamping out the virus, the government moved to an elimination strategy.¹⁴⁰ Elimination does not mean eradicating the virus permanently; it means confidence that chains of transmission have been eliminated for at least 28 days and any imported cases from overseas can be contained. The ongoing strategy involves: (a) border controls; (b) robust case detection and surveillance; (c) effective contact tracing and quarantine; and (d) strong community support of control measures.¹⁴¹

74.  Public health measures directed at the community were implemented through a series of health and Covid-19 orders made under section 70 of the Health Act 1956 and section 9 of the Covid-19 Public Health Response Act 2020. These orders were generally aligned with alert levels set as part of an extra-legal framework (see Part II.B above). In other words, the different alert levels operated as a shorthand for the applicable legal restrictions and recommended voluntary precautions.

75.  Alert levels 3 and 4 require people to stay at home, in what was known as ‘lockdown’, with differing degrees of permissible movement and closure of businesses. Alert level 2 imposes restrictions on comingling, especially the size of gatherings and physical distancing requirements for businesses and hospitality. Alert level 1 is generally restriction free, other than provision for contact tracing, some personal precautions like face-masks in limited situations, and strict border controls. On a number of occasions, the rules applying under the different alert levels were adjusted during their application but the essence of the alert levels remained stable.

76.  The applicable levels and their duration were as follows:

77.  In late-March 2020, a strict nationwide ‘lockdown’—requiring all people to isolate at home—was implemented. This lockdown was largely effected through a series of health orders. The lockdown remained in place for seven weeks, spanning alert levels 4 and 3.

78.  The Prime Minister announced the move to an alert level 4 lockdown from 11:59pm on 25 March 2020 and the public were told to remain at home—to stay in what became known as their ‘household bubbles’.¹⁵³ This message was repeated in a national emergency management agency alert message sent to all mobile phones on the eve of lockdown.¹⁵⁴ The Director-General of Health issued a health order under section 70(1)(m) of the Health Act 1956 closing business premises other than those essential and forbidding congregation in public without physical distancing.¹⁵⁵

79.  No health order specifically directing isolation was made at the commencement of the lockdown. However, nine days into the lockdown, on 3 April 2020, the Director-General issued an isolation order under section 70(1)(f) of the Health Act 1956.¹⁵⁶ Although it was not immediately apparent at the time, the government initially took the view that such an order was not needed to effect the strict lockdown: the combination of a health order closing premises and prohibiting congregation, advisory messaging, and emergency directive powers provided sufficient basis for the lockdown and requirement that people staying at home in their household bubbles—but this proved incorrect, with the High Court subsequently ruling otherwise.¹⁵⁷

80.  When eventually issued, the isolation order required ‘all persons within all districts of New Zealand to be isolated or quarantined’, and in particular to ‘remain at their current place of residence, except as permitted for essential personal movement’. ¹⁵⁸ The use of the language ‘isolate’ and ‘quarantine’ in the health order reflected the language of section 70 of the Health Act 1956, although it was intended and understood to require all people to stay at home, regardless of whether they were infected or suspected of being infected. Essential personal movement was prescribed, including movement and travel for things like: (a) accessing or providing essential businesses; (b) limited recreation activities; (c) shared bubble arrangements (joint care responsibilities); (d) emergencies; and (e) compliance with court orders. The order also made provision for authorisation of travel in individual circumstances on compassionate grounds or to allow incoming travellers to return home.

81.  On 27 April 2020, the country moved to alert level 3 and the Director-General issued a further health order requiring isolation, as well as continuing the closure of premises and prohibition on public congregation.¹⁵⁹ This health order eased the lockdown slightly by allowing more businesses to operate and expanding the range of permissible personal movement. For example, people were allowed to adopt extended bubble arrangements: two or more households in the same or adjacent regions could agree to isolate together so as to keep familial connections, enable caregiving, or support persons living alone.

82.  On 14 May 2020 the nationwide lockdown was lifted, with a move to alert level 2.¹⁶⁰

83.  In mid-August 2020, a further regional level 3 lockdown was imposed in Auckland for 3½ weeks after a small outbreak of the virus. On 12 August 2020, the Minister of Health issued a Covid-19 order, imposing similar restrictions to the earlier nationwide level 3 lockdown restrictions imposed under health orders.¹⁶¹ This regional lockdown was lifted on 30 August 2020, when the Auckland region moved to alert level 2.¹⁶²

84.  During the nationwide lockdown spanning alert levels 4 and 3, doubts were expressed about its legal basis.¹⁶³ Its lawfulness was eventually challenged by judicial review in Borrowdale v Director-General of Health, but the proceedings were not heard and determined until sometime after the lockdown ended.¹⁶⁴ The High Court ruled that most of the lockdown and associated isolation measures were lawful, other than the stay at home messaging over the first nine days.

85.  The Court rejected an argument that the power in section 70(1)(f) of the Health Act 1956 to require people to isolate or quarantine could not be used on a universal basis and should only be used by medical officers of health on a case-by-case basis to isolate or quarantine those infected or suspected of being infected. The Court said the section 70 power was a long-standing emergency power that should be interpreted liberally, purposively, and ambulatorily. It also rejected an argument that the principle of legality—as mandated in section 6 of New Zealand Bill of Rights Act 1990—dictated a narrow, rights-consistent reading of the power: the history, context, and purpose of the power contemplated the limitation of rights by its widespread use in pandemics.¹⁶⁵ Thus, the health orders requiring all persons to isolate were validly made. Further, in the course of its reasoning, the Court observed that the lockdown was ‘a necessary, reasonable and proportionate response to the Covid-19 crisis at that time’.¹⁶⁶ However, strictly speaking, the overall rights-consistency of the lockdown was not in issue because the applicant did not challenge the lockdown on that basis.

86.  The Court, however, found that the early messages to stay at home were unlawful, for the first nine days of lockdown, until a health order specifically mandating isolation was made. The messages amounted to restrictive measures that limited people’s mobility rights protected by the New Zealand Bill of Rights Act 1990 and those limits were not ‘prescribed by law’ as required under the justified limitations clause. Thus, the Court declared that, for the first nine days of lockdown, those messages were contrary to the New Zealand Bill of Rights Act.¹⁶⁷ The judicial review proceedings did not seek to directly impugn any enforcement actions based on those messages and the ramifications of the declaration is uncertain. However, the light-handed approach to enforcement taken by the police in the early days of lockdown means it is unlikely anyone was arrested, warned, or prosecuted solely for breaching the messages to stay at home.¹⁶⁸

87.  The High Court’s ruling on the lawfulness of the health orders has since been appealed to the Court of Appeal, with a hearing expected some time in 2021.

88.  Refusals of compassionate exemptions to isolation rules—allowable, with the permission of the Director-General of Health, eg to support a person in a critical or terminal condition—were also successfully challenged, on the basis of misapplication of policy and fettering of discretion.¹⁶⁹ This led to decision-making processes for exemptions being reviewed and improved.¹⁷⁰

89.  Travel warnings, discouraging travel to China and elsewhere, were issued in late-January and early-February, and some specific travel restrictions were phased in—restricting, incrementally, arrivals from Wuhan, mainland China, and Iran.¹⁷¹ On 19 March 2020, the border was closed to travellers other than citizens and permanent residents.¹⁷² No restrictions were imposed preventing outbound travel. Incoming restrictions continue, as at 15 December 2020, however, provision has been made for limited ‘critical purpose’ exceptions, such as for partners of citizens, people with humanitarian reasons, health workers and other critical workers, and for re-entry for a limited number of overseas students.¹⁷³

90.  Those people arriving from overseas were initially directed to self-isolate in their homes for 14 days.¹⁷⁴ After concerns about the efficacy of self-isolation, all arrivals were subsequently required to isolate and quarantine at state-managed facilities—ie otherwise empty hotels—for 14 days.¹⁷⁵ Mandatory isolation in state-mandated facilities for arrivals continues, as at 15 December 2020.¹⁷⁶ Due to limited capacity in state-managed isolation, the government initially worked with airlines to manage flows of arrivals to match capacity. A mandatory pre-travel booking system was subsequently adopted, from 3 November 2020.¹⁷⁷ A cost-recovery regime for the cost of isolation was imposed, applying from 10 August 2020.¹⁷⁸ This regime was controversial, in part, because it potentially limited the rights of citizens to return to New Zealand.¹⁷⁹

91.  In early March 2020, large public gatherings and events were discouraged and cancelled.¹⁸⁰ The government asked organisers to cancel specific large—initially for 500 people or more, subsequently 100 people or more—events, backed up by the ability of medical officers of health to direct cancellation under the Health Act 1956. Event organisers complied with requests.

92.  During the alert level 3 and 4 lockdown, public congregation was prohibited and, from nine days into the lockdown, the health order requiring isolation effectively prohibited private gatherings other than with people within their household bubbles.¹⁸¹

93.  During alert level 2, the size of gatherings was restricted—but on an evolving basis.¹⁸² Initially, the maximum size was set at 10 people for intermingled gatherings within private households and for groups gathering in businesses serving food or drink (up to a maximum of 100 people within each business). Event facilities such as cinemas and theatres were also subject to a 100-person limit. Gatherings of up to 50 people were permitted for funerals and tangihanga (traditional Māori funerals)—a matter of some controversy. These limits were progressively loosened over time, for example, allowing social gatherings of up to 100 people.¹⁸³

94.  When the country moved to alert level 1, limits on the size of gatherings were lifted. Household isolation and gathering limits were briefly reinstated during and after the Auckland regional lockdown.¹⁸⁴

95.  Closure of premises was one of the main legal mechanisms used to effect the level 3 and 4 lockdown, initially through closure of premises other than those providing essential services and subsequently closure of premises unless operating with mandated infection control measures.

96.  During alert level 4, the Director-General issued a health order under section 70(1)(m) of the Health Act 1956 closing ‘all premises within all districts’ other than those specifically exempted.¹⁸⁵ In accordance with statutory exemptions, the order did not apply to private dwellinghouses, parliamentary precincts, courts, and prisons.¹⁸⁶ In addition, the order exempted premises ‘necessary for the performance or delivery of essential businesses’, namely, ‘businesses that are essential to the provision of the necessities of life and those businesses that support them, as described on the Essential Services list on the covid19.govt.nz internet site maintained by the New Zealand government’.¹⁸⁷ Schools and universities were not exempted from the closure order and thus were effectively closed—an emergency power to specifically close schools due to the pandemic did not appear to have been relied on.¹⁸⁸

97.  The manner in which premises were closed was unsuccessfully challenged in judicial review proceedings, with the High Court ruling a health order could close all premises subject to exceptions.¹⁸⁹ The decision has been appealed to the Court of Appeal.

98.  The nature and scope of the essential businesses exemption was problematic and contested. A list of essential services was maintained on the government’s Covid-19 website but this list was frequently updated, often in response to queries from businesses about whether they qualified as essential services.¹⁹⁰ Concerns were raised, including by the Regulations Review Committee, about inappropriate incorporation by reference and uncertainty through reliance on an evolving website specifying exempt essential businesses.¹⁹¹ In the judicial review proceedings challenging the lockdown, the applicant also argued the essential business exemption amounted to unlawful delegation.¹⁹² However, the High Court ruled, well after the lockdown had been lifted, that the definition of essential business should be read solely by reference to the core part of the definition, namely, ‘essential to the provision of the necessities of life and those business that support them’; the reference to a website listing was redundant and the website performed an advisory function only. The decision has been appealed.

99.  During alert level 3, from 27 April 2020, the closure of premises was recast to allow more premises to reopen. Prescribed categories of businesses or services were allowed to operate in accordance with infection control measures; statutorily exempt premises, namely, dwellinghouses, parliamentary precincts, courts, and prisons were also not subject to closure .¹⁹³ A matrix of business categories and applicable control measures were adopted. In general terms, essential businesses were able to continue to operate subject to physical distancing measures and, for some, prohibitions of on-site food and drink consumption; other businesses and services could operate but without allowing customers on site (businesses operated click-and-collect services or front-door counters); venue businesses were permitted to operate for controlled gatherings such as funerals, tangihanga, and weddings hosting up to 10 people. Schools were allowed to reopen for younger pupils but attendance was strongly discouraged. Only very limited activities with small groups were allowed to resume at universities.

100.  When the country moved to alert level 1, from 8 June 2020, restrictions on the operation of premises were lifted.¹⁹⁴ During the regional level 3 lockdown, from 12 August 2020 to 30 August 2020, premises in Auckland were again briefly closed, subject to exceptions.¹⁹⁵

101.  During alert level 4, from 25 March 2020, the Director-General issued a health order under section 70(1)(m) of the Health Act 1956 forbidding ‘people to congregate in outdoor places of amusement or recreation of any kind or description (whether public or private) in all districts of New Zealand’.¹⁹⁶ The term ‘congregate’ was further defined to exclude ‘people maintaining at all times physical distancing’, namely, ‘remaining two metres away from other people or if … closer than two metres, being there for less than 15 minutes’.¹⁹⁷

102.  During alert level 3, a further health order was issued forbidding congregation without physical distancing, in tandem with the generally applicable requirements to isolate at home except for essential movement and closure of premises except for those operating prescribed infection control measures.¹⁹⁸ The physical distance required varied according to where congregation took place. In most cases, the standard distancing requirements—at least two metres or, if closer than two metres, for not more than 15 minutes—continued to apply. For congregation at premises operating infection control measures, such as some essential businesses, public transport services, and schools, the distance required varied between one and two metres.

103.  During alert level 2, from 27 April 2020, the general prohibition of congregation—and consequentially the physical distancing requirements—was lifted; however, specific physical distancing requirements were incorporated in ongoing restrictions on the operation of businesses and services.¹⁹⁹

104.  Physical distancing requirements also returned briefly in August and September 2020 during the Auckland regional level 3 lockdown and level 2 restrictions elsewhere.²⁰⁰

105.  The physical distancing measures mandated avoided complexity and thus were capable of ready compliance. However, the temporal exception to physical distancing—ie for no more than 15 minutes—was problematic, because it potentially undercut the efficacy of the measures and made enforcement practically difficult.

106.  Mandatory face coverings or PPE were not compulsory during the nationwide level 3 and 4 lockdown. However, face coverings were required in very limited situations during and after the later Auckland regional lockdown. From 12 August 2020, face coverings were required while travelling by air, as a condition of exemption from physical distancing measures.²⁰¹ From 30 August 2020, face coverings were required while driving public transport services (buses and taxis but not Uber services) or while travelling by air, ferry, or bus.²⁰² This limited requirement to wear face coverings was lifted when the entire country returned to alert level 1 on 7 October 2020.²⁰³ The requirement to wear face coverings on public transport in Auckland and while travelling by air was reintroduced from 18 November 2020.²⁰⁴

107.  During the nationwide level 4 and 3 lockdown, while the entire country was required to stay at home, no special rules required those infected or those suspected of being infected to isolate or quarantine. In New Zealand, the nomenclature of ‘quarantine’ is usually used to describe the segregation of an infected person and ‘isolation’ for segregation of people with elevated risk of infection.²⁰⁵ People were managed in hospitals or aged residential care facilities, or continued to isolate or quarantine in their households. Infected travellers continued to be detained in managed isolation and quarantine.

108.  After the nationwide alert level 4 and 3 lockdown was lifted, those infected or suspected of being infected were managed by medical officers of health on an ad hoc basis, as necessary relying on directive case-by-case powers under the Health Act 1956. Generally, those infected or suspected of being infected (and sometimes their family members) have been relocated into state-managed isolation and quarantine, in order that they can be isolated and receive the necessary health care.²⁰⁶ Very occasionally, some infected people have been permitted to isolate or quarantine in their own homes, subject to close supervision.²⁰⁷

109.  Testing for Covid-19 has been a key part of the public health response to the pandemic.²⁰⁸ Testing has been strongly encouraged, especially for those at high risk of infection or exhibiting symptoms. However, submitting to a test has not been required, other than for international arrivals and workers at the border.

110.  Public health legislation contains various powers to require people to present themselves for testing, including Health Act 1956 (sections 70(1)(e) and (ea), 92K, and 92ZH) and Covid-19 Public Health Response Act 2020 (section 11(1)(a)(viii)). Despite this, health officials and the government have been reluctant to coercively require testing, especially because section 11 of the Bill of Rights Act 1990 enshrines the right to refuse medical treatment—although the position has not been settled, the government has assumed diagnostic testing qualifies as medical treatment.

111.  As part of border controls, international arrivals have been obliged to be tested during their time in state-managed isolation and quarantine, usually on days 3 and 12 of their 14 day detention.²⁰⁹ If a person refuses to consent to testing, the length of their period of quarantine is usually extended until officials are satisfied they are low-risk. Workers at international air and sea ports, air and ship crew, and managed isolation and quarantine facilities staff are also required to submit to regular testing—the definition of those workers subject to testing and mandated frequency has varied.²¹⁰ The testing regime, especially for border workers, has been subject to extensive scrutiny and some strong criticism about its roll-out and efficacy.²¹¹

112.  Although plans have been developed and arrangements made for purchase of various vaccines, a vaccination programme has not yet commenced as at 15 December 2020.²¹²

113.  The Ministry of Health and public health units are responsible for contact tracing following diagnosis of infections.²¹³ Close and casual contacts are generally contacted manually by phone, and encouraged or directed to isolate. Early in the pandemic, the system of tracing was poor but, following a review, its capacity was expanded and strengthened.²¹⁴

114.  A digital diary, based on scannable QR codes, was also adopted to assist with contact tracing. Under alert level 2, business and workplaces were required to maintain contact tracing systems for people entering their premises.²¹⁵ Initially, numerous private providers offered systems, alongside the government’s ‘NZ Covid-Tracer’ app.²¹⁶ From alert level 1, use of the government app was mandated and businesses, workplaces, and other premises are required to display its QR codes, along with an alternative physical register.²¹⁷ The app itself has basic functionality, recording premises visited via scanned codes and receiving notifications of outbreaks of the virus at any visited premises. From 9 December 2020, Bluetooth tracing functionality was added to the NZ Covid-Tracer app.²¹⁸ Nearly 2.5 million people have downloaded the government app, as at 15 December 2020, but day-to-day scanning has fluctuated wildly.²¹⁹

115.  Most deaths from Covid-19 were at aged care facilities. The Ministry of Health worked closely with providers on health precautions and issued detailed advice and guidance.²²⁰ The advice varied according to alert level, recommending measures such as screening of admissions, management and restriction of visits by family members, and use of PPE by workers. However, aged care facilities were not subject to specific regulation other than generally-applicable restrictions.

116.  Key offences and penalties include the following:

117.  The Covid-19 Public Health Response Act 2020 introduced infringement offences, allowing for the imposition of a (fixed penalty) fine for prescribed offences.

118.  The primary power to enforce health and Covid-19 orders lies with constables; authorised enforcement officers can also enforce Covid-19 orders—a matter of some controversy during the passage of the Covid-19 Public Health Response Act 2020.²²¹ Customs officers and Worksafe inspectors have been authorised as enforcement officers, with directive and search powers; members of the armed forces and aviation security have also been authorised and given directive powers but only in limited circumstances (border operations and managed isolated facilities).²²² More generally, nearly 900 members of the armed forces have been commissioned to assist at managed isolation facilities and the maritime border, providing logistical and security support in conjunction with police and health officials.²²³

119.  Constables have the power of arrest, without warrant, because the offences are imprisonable offences.²²⁴ Powers of entry under Covid-19 Public Health Response Act 2020 were controversial in the passing of the legislation, especially the power of constables to enter dwellinghouses without a warrant to enforce gathering rules and entry onto marae (Māori meeting grounds) generally.²²⁵

120.  In accordance with Operational Guidelines, police enforcement during the lockdown was relatively light-handed; a graduated response of ‘engage, educate, encourage and enforce’ was mandated.²²⁶ During the pandemic, up to 8 June 2020, the police prosecuted 998 people for offences and issued 6,352 warnings.²²⁷ Most breaches related to health orders, with a handful relating to directions under civil defence legislation. During the early days of the national lockdown, when there was some uncertainty about the legal underpinnings of the isolation requirement, the police approach was cautiously light-handed: only 25 people were prosecuted and only a couple of hundred warnings issued.²²⁸ Other notable strategic choices by the police relating to (non-)enforcement included, controversially, not taking action again Māori iwi (tribes) operating community checkpoints akin to roadblock during the alert level 3 and 4 lockdown,²²⁹ and not enforcing gatherings restrictions against protestors gathering for a Black Lives Matter marches, on the eve of a move to alert level 1.²³⁰ Some concern was raised about the discriminatory enforcement of lockdown rules against Māori and other minorities but full data is not yet available.²³¹

121.  The level of compliance with the stay at home requirement during the nationwide lockdown was very high, with retail and recreation traffic falling by 90%; compliance during the Auckland regional lockdown was also high but lower than previous.²³² Data on compliance with other measures, such as face coverings, is not yet readily available.

Dr Dean Knight, Faculty of Law and New Zealand Centre for Public Law, Victoria University of Wellington