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New Zealand: New COVID-19 Public Health Response Legislation Enacted

(May 28, 2020) On May 13, 2020, the COVID-19 Public Health Response Act 2020 was enacted in New Zealand. The act provides a new legal framework for making and enforcing orders containing restrictions and requirements for businesses, gatherings, and movement in response to COVID-19. It was enacted in time for the country’s move to “Alert Level 2” status under the government’s four-level alert system for responding to the pandemic. Previously, the government utilized various orders and other instruments made under existing laws, including the Health Act 1956, Civil Defence Emergency Management Act 2002, and Epidemic Preparedness Act 2006, to make and enforce rules for Alert Levels 3 and 4. New Zealand entered full lockdown, at Alert Level 4, on March 25, 2020, and moved to Alert Level 3 on April 28, 2020.

Upon the introduction of the legislation on May 12, the attorney-general explained that “[t]here will be fewer restrictions under Alert Level 2 but those remaining still need to be enforceable. We don’t want these narrower controls to rely on a National State of Emergency.” Upon its passage by the Parliament on May 13, he stated that “[t]he COVID-19 Public Health Response Act will ensure controls on gatherings of people and physical distancing are still enforceable while narrowing the Police powers from those that applied under Level 3 and Level 4.”

The act empowers the minister of health and director-general of health to make various orders (“section 11 orders”) related to, for example, the movement and association of people, physical distancing, isolation or quarantine, gatherings, medical examinations, provision of information for contact tracing, and specified actions that must be taken on premises or other places. Such orders must be approved by a resolution of the House of Representatives under section 16 of the act and are also disallowable instruments, according to section 17 of the act.

The act provides for various enforcement powers under sections 20 to 25, including powers of entry without a warrant, the power to give directions, powers to close roads and stop vehicles, the power to direct a person to give identifying information, and the power to direct a business to close. It also contains offenses and infringement notice procedures under sections 26 to 32. Offenses may be punished with fines of up to NZ$4,000 (about US$2,480) or imprisonment for up to six months. Infringement offenses may be set out in section 11 orders and are subject to an infringement fee of NZ$300 (about US$186) or a court-imposed fine of up to NZ$1,000 (about US$620).

The act was passed under parliamentary urgency procedures and was the subject of public controversy, both for the speed of its passage and its contents, particularly with respect to the powers of warrantless entry granted to police. In response to these concerns, the government decided to refer the legislation to a parliamentary select committee for review, with the review to be completed within the 90-day period specified in the act, after which Parliament must consider whether to renew the act.

An order made under the act, the COVID-19 Public Health Response (Alert Level 2) Order 2020, came into effect on May 14, 2020. It permits gatherings of up to 10 people, provided those people all know each other (being friends or family) or records are kept to enable contact tracing. Up to 50 people are allowed to gather for funerals. Businesses are required to ensure, to the greatest extent possible, that people entering their premises remain two meters (about 6.6 feet) away from each other unless they are part of a group of fewer than 10 friends or family, although workers can be at least one meter apart, and must keep records for contact tracing purposes.

On May 25, 2020, the government announced that, from May 29, gatherings of up to 100 people will be permitted, including “gatherings at your home, events outside of home and public venues – including church services, weddings and, funerals and tangihanga.” An amendment to the original order was subsequently published on May 27, permitting the larger gatherings and reducing the physical distancing requirements to one meter for businesses, among other amendments.

The May 25 announcement also stated that the cabinet will review the settings for Alert Level 2 on June 8 and will consider a move to Alert Level 1 no later than June 22.

As of May 26, 2020, New Zealand had 22 active cases of COVID-19, with one person hospitalized. The total number of confirmed or probable cases was 1,504, including 21 deaths. Only one new case had been added to that total in the previous week.