First, this piece was written over a period end of January to the beginning of February 2022. The day before it was finalized the Prime Minister announced the gradual opening of New Zealand’s borders and the end of the iniquitous MIQ system for New Zealand citizens. That said, the effect of the 2021 Air Border Order and no doubt other Orders that will follow to give effect to the opening of the borders still provide for conditional entry to New Zealand that is contrary to the principles set out in the Immigration Act and the New Zealand Bill of Rights Act.
Secondly ,this is not the type of analysis that would pass muster in a peer reviewed academic journal. I have tried to simplify complex legal concepts for a lay audience (and for myself) with the goal of providing some insights into the way in which the labyrinth of COVID-19 legislation and rules may be navigated and explained.
Among the tasks which [Minos] confided to Daedalus was that of constructing a labyrinth in which to confine the Minotaur, the dreadful creature which for some years had preyed upon the people of the kingdom. With great patience and ingenuity Daedalus planned and built a maze of masonry so intricate that nobody who reached the centre could hope ever to find their way out again, and in the centre was the abode of the man-eating monster.
The legal framework which has been put in place for the management of the COVID-19 pandemic is voluminous and complex. It consists of empowering statutes which authorize the making of rules and regulations by Ministers and at times officials. The various pieces of legislation and the various orders and notices may be found on the Unite Against Covid website in the section setting out the key legislation, the COVID-19 Public Health Response Act orders and notices and notices made pursuant to the Health Act, the Epidemic Preparedness Act and the Civil Defence Emergency Act. A full collection of legislation and orders may be found on the Parliamentary Counsel’s Office website and includes legislation and orders that are no longer in force.
Early in 2020 and before the pandemic reached New Zealand there were three pieces of legislation available that provided certain powers to deal with epidemics – the Health Act 1956, the Epidemic Preparedness Act 2006 and the Civil Defence and Emergency Act 2002.
The COVID-19 website lists fourteen statutes enacted in 2020 that specifically addressed the pandemic. The prime piece of legislation is the COVID-19 Public Health Response Act 2020.
The COVID-19 website notes that there are 21 Public Health Response Act Orders and Notices. There are also 30 Orders which have been revoked along with 26 expired Gazette notices.
The website notes that were also orders that were made pursuant to the Health Act 1956 that have since been revoked or replaced by orders made under COVID-19 Public Health Response Act 2020. Seven notices were made pursuant to the Epidemic Preparedness Act along with 8 modification orders under that Act. There were seven declarations of a State of National Emergency made pursuant to the Civil Defence Emergency Management Act.
It will be clear that there are a large number of statutes and regulations which deal with aspects of the pandemic and its management. It is not proposed to address all of them. Rather this paper is more of a guide – Ariadne’s thread if you will – to working through some of the main passages of the labyrinth of statutes and orders that have been enacted and put in place and to provide a specific example to illustrate how it all works.
A matter that is of concern is that the Government’s “go to” website for COVID-19 information headed Unite Against COVID-19 does not provide full information. In the section on legislation and key documents only a selection of the legislation and orders are available. This must be a matter of concern. Citizens who might gravitate towards the Government “go to” website might find only part of the story.
An example of the deficiency surrounds a question that I had about whether there was a legislative or regulatory power that enabled the Government to “consolidate” orders of Rapid Antigen Test kits. The closest Order that I could find after a search was found on the NZ Customs Service website and referred to the COVID-19 Public Health Response (Point of Care Tests) Order 2021. This order does not appear on the Government’s “go to” website although it is available on the Parliamentary Counsel’s website.
The absence of material from the Government’s “go to” website seems to suggest a concerning lack of transparency. Indeed, the information presented is incomplete and in that respect is detail and context are lacking. This selective publication of information tells only part of the legislative story and in the minds of some might amount to a form of misinformation – a selective presentation of valid material.
The Parliamentary Counsel’s website is a much more accurate and therefore reliable resource although it does not distinguish between enactments and orders which are no longer in force and those that are. It is necessary to view individual documents to confirm their current status. The sheer volume of material available on this resource demonstrates the labyrinthine nature of the legislative response.
Outlining the Discussion
As I researched the material it became clear that some of the powers that have been put in the hands of ministers and officials are very wide and impinge to a considerable degree upon the civil liberties of citizens and override the rights guaranteed by the New Zealand Bill of Rights Act 1990. Although critics of the Government’s management of the pandemic and those who advocate for “freedom” are dismissed as purveyors of misinformation, some of their misgivings may be justified and I shall comment upon scope of ministerial and official powers in this paper.
I shall commence with an overview of the Covid Public Health Response Act 2020 and examine the rule making powers contained in that statute.
I shall then consider an order that has been made involving the border which impacts upon the rights and expectations of New Zealand citizens under the Immigration Act 2009 and the New Zealand Bill of Rights Act 1990 .
I shall conclude with some briefl observations about possible upcoming changes to New Zealand’s border arrangements
Beginnings and Endings
The COVID-19 Public Health Response Act 2020 (CPHRA) came into effect as from 13 May 2020 when it was given Royal Assent. It was enacted specifically to deal with the response to the COVID pandemic and contained specific powers relating to the pandemic that were not present in the Health Act 1956.
Importantly it has a “sunset clause”. This is a section which sets out when the effect of the Act ends and is automatically repealed.
Section 3 sets out two sets of circumstances by which the Act will be repealed.
The first involves a resolution to continue the life of the Act. Resolutions to continue the life of the Act must be made every 90 days or such other period determined by the House of Representatives.
Thus as matters stand the Act must be “revitalized” within a 90 day period.
The second way that the Act comes to an end is by the close of 13 May 2023 unless the Act is repealed sooner. This demonstrates that the life of the legislation is limited to the particular circumstances with which it deals.
The Purpose of the Act
The purpose of the Act is important. When Courts come to consider the way in which the Act should be interpreted they look at the purposes of the Act and interpret it in such a way that will give effect to the purpose of the legislation. This is known as a “purposive interpretation” and can be quite wide.
The purpose of the legislation 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 infectious 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
(ca) allows social, economic, and other factors to be taken into account where it is relevant to do so; and
(cb) is economically sustainable and allows for the recovery of MIQF costs; and
- has enforceable measures, in addition to the relevant voluntary measures and public health and other guidance that also support that response.”
The Act does not set out every situation or address every set of circumstances that might arise during the pandemic. It is a framework piece of legislation that provides powers to Ministers or named officials to make rules or orders that address particular circumstances.
The power to make rules does not require the approval of Parliament although section 16 of the CPHRA requires the approval of the House of Representatives for Orders once they have been made. As long as the person making the rule makes it within the ambit of the power that is given to him or her, that rule has the force of law and is backed not only by the rule itself but by the provisions of the CPHRA.
There is another important principle of interpretation that should be noted. Section 11 of the Legislation Act states that legislation applies to circumstances as they arise. This means that the law is considered as always speaking and must be interpreted in that light.
Making Orders Under CPHRA
The provisions setting out the way in which orders are made are set out in Part 2 of the CPHRA. There is some cross-referencing between sections but the important sections are section 8, 9, 11, 12, 13, 14 and 15.
Section 8 Prerequisites
The starting point is section 8. This sets out the pre-requisites for all COVID-19 Orders.
For a COVID-19 Order to be made there are three prerequisites.
- There must be an epidemic notice made pursuant to section 5 of the Epidemic Preparedness Act 2006. The notice must be in force.
- Alternatively there must be a state of emergency or transition period in respect of COVID-19 under the Civil Defence Emergency Management Act 2002 in force
- Alternatively, orders may be made if the Prime Minister,
- by notice in the Gazette,
- after being satisfied that there is a risk of an outbreak or the spread of COVID-19,
- has authorised the use of COVID-19 orders (either generally or specifically) and
- the authorisation is in force.
Orders that may be made by the Minister or the Director-General of Health under the CPHRA Act are set out in section 11 which I shall discuss shortly.
For an order to be made under section 11 a number of requirements set out in section 9 or section 10 must be fulfilled.
Section 9 sets out the requirements that the Minister must fulfil in making a section 11 order. Section 10 sets out the circumstances in which the Director General may make orders.
Section 9 Requirements
- The Minister must have regard to advice from the Director-General about
- the risks of the outbreak or spread of COVID-19; and
- the nature and extent of measures (whether voluntary or enforceable) that are appropriate to address those risks;
- The Minister may have had regard to any decision by the Government on the level of public health measures appropriate to respond to those risks and avoid, mitigate, or remedy the effects of the outbreak or spread of COVID-19
- The Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms contained in the New Zealand Bill of Rights Act 1990
- The Minister
- must have consulted the Prime Minister, the Minister of Justice, and the Minister of Health; and
- may have consulted any other Minister that the Minister (as defined in this Act) thinks fit
- Before making the order the Minister must be satisfied that the order is appropriate to achieve the purpose of the CPHRA Act
The Minister is not required to receive specific advice from the Director-General about the content of the proposed order or any proposal to amend, extend or revoke the order.
The following observations need to be made. First, the five matters noted above are expressed conjunctively. That means that the word “and” joins each clause. It means that all the requirements must be satisfied. If the word “or” was used the clauses would be disjunctive and the Minister may have alternatives that he or she could consider.
Secondly I have highlighted the words “must” and “may” that appear in the requirements. The use of “must” is directive. The Minister cannot ignore or overlook a directive requirement. The situation is different with the use of the word “may”. In that case the Minister has a discretion as to whether he or she complies with the requirement.
Thirdly, section 9 makes it mandatory that the Minister must be satisfied that the order either does not limit the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 or amounts to a justified limit on those rights and freedoms.
The New Zealand Bill of Rights Act 1990 (NZBORA) is not what could be called “super legislation”. It does not overrule other statutes. In fact if there is an inconsistency between the provision of a statue and the NZBORA a court cannot hold that the provision is implied repealed or revoked, nor can it decline to apply any provisions of the statute.
Furthermore the rights and freedoms that are set out in the NZBORA may be subject to reasonable limits prescribed by law that may be demonstrably justified in a free and democratic society. This “justified limitation” section demonstrates that the rights and freedoms may be limited and are therefore not absolute. That concept appears in the use of the words “justified limit” in section 9 (1)(ba) CPHRA. However, the language of the subclause makes it clear that it is mandatory for the Minister to undertake that consideration.
However the language of section 9(1)(ba) explicitly indicates that Parliament envisaged, in passing the Act, that orders may be made which limit the rights and freedoms under the Bill of Rights if the limit is justified. The level of justification is that required by section 5 NZBORA – it must be a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society. NZBORA and its application will be discussed at a later stage in this paper.
Section 10 Requirements
The Director-General can make orders under section 11 but they can only be made in accordance with the provisions of section 10.
There are four major requirements.
- Any order made by the DG may apply within the boundaries described in the order that
- are relevant to the circumstances addressed by the order; and
- are described in a practical way, whether by reference to roads, geographical features (such as rivers or ranges), or in any other way that enables the boundaries to be readily ascertained
- The DG must be satisfied that the order
- is urgently needed to prevent or contain the outbreak or spread of COVID-19; and
- is the most appropriate way of addressing those matters at the time
- the DG must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990
- The Director-General must be satisfied that the order is appropriate to achieve the purpose of this Act.
Once again the four requirements are expressed conjunctively. They are linked with the word “and”. That means that all the requirements require compliance. Furthermore there are some mandatory matters that the DG has to consider, indicated by the use of the word “must”.
Section 11 – Orders that May be Made Under the Act
The first thing to note is that section 11 sets out the purposes for which orders may be made. It does not specifically prescribe the wording those orders may contain. Rather it provides a framework within which orders may be made and the general subject matter of those orders.
Section 11 is lengthy. It contains six subsections and a large number or subclauses.
Once there has been compliance with section 9 or 10 the Minister or the DG may make order for one or more of the purposes set out in section 11.
These purposes are:
- To require persons to refrain from taking specified actions,
or to take specified actions,
or to comply with specified measures,
so as to contribute to either or both of the following
- preventing, containing, reducing, controlling, managing, eliminating, or limiting the risk of the outbreak or spread of COVID-19:
- avoiding, mitigating, or remedying the actual or potential adverse public health effects of the outbreak of COVID-19 (whether direct or indirect)
Examples of the first purpose are:
- stay in any specified area, place, or premises or refrain from going to any specified area, place, or premises (including in specified circumstances or unless in compliance with specified measures):
(ia) permit entry to any specified areas, places, or premises only in specified circumstances or in compliance with specified measures
- refrain from associating with specified persons:
- stay physically distant from any persons in any specified way
- refrain from travelling to or from any specified area or place, or refrain from travelling to or from any specified area or place in specified circumstances or unless in compliance with specified measures (for example, refrain from leaving an area unless the person has a COVID-19 vaccination certificate):
- refrain from carrying out specified activities (for example, business activities involving close personal contact) or carry out specified activities only in any specified way or in compliance with specified measures:
- be isolated or quarantined in any specified place or in any specified way:
- refrain from participating in gatherings of any specified kind, in any specified place, or in specified circumstances:
- report for and undergo a medical examination or testing of any kind, and at any place or time, specified and in any specified way or specified circumstances:
- provide, in specified circumstances or in any specified way, any information necessary for the purpose of contact tracing:
- satisfy any specified criteria before entering New Zealand from a place outside New Zealand, which may include being registered to enter an MIQF on arrival in New Zealand:
- The second stated purpose relates to an MIQF or other place of isolation or quarantine. The order
may require specified actions to be taken
or require compliance with any specified measures
for the purpose of managing the movement of people to, from or within MIQF or other place of isolation or quarantine or place of self-isolation or quarantine.
A non-exclusive list of three possible orders follows. It should be noted that this does not limit any other orders that may be necessary to fulfil this purpose.
The non-exclusive list is:
- giving directions that relate to the movement of people to, from, and within the MIQF, other place of isolation or quarantine, or place of self-isolation or quarantine:
- imposing restrictions and conditions that relate to the movement of people to, from, and within the MIQF, other place of isolation or quarantine, or place of self-isolation or quarantine:
- permitting people to leave their rooms in the MIQF, other place of isolation or quarantine, or place of self-isolation or quarantine in accordance with any requirements or conditions specified in the order:
- Orders may be made relating to places, premises, craft, vehicles or other things.
The orders may require specified actions to be taken.
They may require compliance with specified measures
They may impose specified prohibitions.
The purpose for these orders is to contribute or be likely to contribute to either or both of the following:
- preventing, containing, reducing, controlling, managing, eliminating, or limiting the risk of the outbreak or spread of COVID-19:
- avoiding, mitigating, or remedying the actual or potential adverse public health effects of the outbreak of COVID-19 (whether direct or indirect):
Five examples of the types of orders are provided. These are:
- requiring any places, premises, craft, vehicles, or other things to be closed or only open if specified measures are complied with:
- prohibiting any craft, vehicles, or other things from entering any port or place, or permitting the entry of any craft, vehicles, or other things into any port or place only if specified measures are complied with:
- prohibiting gatherings of any specified kind in any specified places or premises, or in any specified circumstances:
- requiring any places, premises, craft, vehicles, or other things to be isolated, quarantined, or disinfected in any specified way or specified circumstances:
- requiring the testing of any places, premises, craft, vehicles, or other things in any specified way or specified circumstances:
- Orders may be made relating to laboratories that undertake COVID-19 testing. These orders may:
- set quality control measures and minimum standards:
- require COVID-19 test results to be reported to the Director-General’s public health national testing repository:
- manage the supply of testing consumables (such as reagents and swabs) used by the laboratories:
- provide differently for different classes of testing laboratories (for example, different provisions for laboratories depending on whether they are funded publicly or privately)
- Orders may be made relating to the owner or person in charge of a specified laboratory that undertakes COVID-19 testing. These may require the owner or the person in charge to:
- deliver or use, in accordance with directions given under the order, specified quantities of COVID-19 testing consumables that the Minister considers necessary for the purposes of the public health response to COVID-19:
- undertake COVID-19 testing solely for the purposes of the public health response to COVID-19 while subject to the order, whether or not the laboratory is contracted by the Crown for that purpose
- Orders may be made requiring persons to permit individuals to enter a place or receive a service irrespective of their vaccination status or the presentation of a vaccination certificate.
- Orders may be made specifying the evidence that may be required to be produced to demonstrate that a specific measure has received compliance. The example is given of the requirement for the presentation of a COVID-19 vaccination certificate. Such order may provide for any prohibitions or duties that apply in respect of the use or production of that evidence
- Orders may be made specifying the required doses for each COVID-19 vaccine or combination of COVID-19 vaccines.
- As may be expected, orders may be made dealing with COVID-19 vaccination certificates. The orders
- May specify who is eligible to be issued with a COVID-19 vaccination certificate:
- May specify how an application for a COVID-19 vaccination certificate must be made, and the information required to accompany that application:
- May provide for the issue, renewal, and extension of COVID-19 vaccination certificates by the Director-General or by the use of automated electronic systems (which certificates are to be treated as if they were issued, renewed, or extended by the Director-General):
- May provide for the form and content of COVID-19 vaccination certificates to be determined by the Director-General:
- May specify the period for which COVID-19 vaccination certificates are valid, or the conditions under which COVID-19 vaccination certificates may expire.
In addition the Minister may specify the circumstances where a breach of an order may be considered an infringement offence and may specify which class of infringement offence a breach may fall under.
The section also clarifies that things include animals, goods, businesses, records, equipment, and supplies for the purposes of section 11 and section 12.
Goods prohibited from import under a Covid-19 Order fall within the ambit of the Customs and Excise Act 2018 and are deemed to be among the goods prohibited from import under section 96 of that Act.
Section 11(5) and (6) clarify that a COVID-19 order made under section 11 or authorizing the DG or Chief Executive to do anything specified in section 12(1)(d) – which I shall discuss shortly – is secondary legislation and is subject to the publication requirements contained in Part 3 of the Legislation Act 2019.
This means that Parliamentary Counsels Office (PCO) must publish all secondary legislation drafted by the PCO and notify the making of such legislation by publishing information required by regulations in the Gazette. The PCO may also publish legislation that has not been drafted by the PCO.
The notes to Section 11 contained on the legislation.govt.nz website also clarify the requirements of the Legislation Act 2019 regarding secondary legislation.
Section 11 has been subject to amendment but it is not my intention to discuss the provisions of section 11A which relates to compensation or payment relating to requisitions, section 11AA which sets out the requirements for making COVID-19 Orders under section 11AB or section 11AB which provides for the purposes for making orders under the Act relating to specified work.
Summary of the Provisions of Section 11
- Section 11 allows orders to be made for specific purposes.
- These orders may be made by the Minster or the DG.
- The first set of orders relate to people. These Orders may
Require persons to refrain from or undertake specific actions to prevent contain or reduce the spread of COVID-19 or avoid adverse public health effects of the outbreak
- Examples of such orders may be:
Restricting or regulating entry to premises
Refraining from associating with specified persons
Travel restrictions to certain areas
Restrictions of certain specified activities
Isolation and quarantine requirements
Restrictions or prohibitions on gatherings
Requirements to report for medical examination or testing
Provision of information for contact tracing
Satisfying entry criteria before entering NZ including registration at an MIQF
- Orders may address issues surrounding the management of MIQF including restrictions on movement to and within an MIQF
- The second set of Orders relate to certain actions that may or may not be taken relating to premises, craft and vehicles.
- Examples of such orders may be
Requiring closing or opening subject to conditions
Prohibiting entry or craft of vehicles into ports or places
Prohibiting gatherings at certain specified premises
Requiring places, premises, craft or vehicles to be quarantined or disinfected
Requiring testing of places, craft or vehicles
- Orders may be made relating to COVID-10 testing laboratories or the people responsible for management of such premises
- Orders may be made requiring access to premises or services with or without a vaccination certificate and the type of evidence necessary to demonstrate compliance with a specific measure
- Orders may specify doses and/or combination of vaccinations
- Orders setting out the details of application for, form and issue of vaccination certificates
The above is a very brief summary only and is intended to give a idea of the flavour of COVID-19 Orders that may be made.
The discussion now moves to a consideration of section 12 which sets out the general provisions relating to COVID-19 Orders.
Section 12 – General Provisions relating to COVID-19 Orders.
Section 12 sets out the sort of matters that may be covered in a COVID-19 Order made under section 11. It also sets out certain limitations that may apply to COVID-19 Orders.
- A COVID-19 order may set out different measures that may be imposed upon persons for example depending on whether or not they have a vaccination certificate or upon their vaccination status.
These measures may include requirements, restrictions, directions, and conditions, for different circumstances and different classes of persons, places, premises, craft, vehicles, or other things.
- A COVID-19 Order may specify the evidence that may be required to demonstrate compliance with a requirement, restriction, direction or condition.
- A COVID-19 Order may apply to certain people or classes of people, locations or areas.
These details are:
- in relation to persons, generally to all persons in New Zealand or to any person or specified class of persons in New Zealand:
- in relation to places, premises, craft, vehicles, or other things, to any class or to all of them:
- in relation to anything else,—
- generally throughout New Zealand
- in any area, however described
- A COVID-19 Order may set out the circumstances where an Order may not apply even if the provision is beneficial.
The Order must set out the specified circumstances, whether the provision will not apply in a specified way, or to specified persons, places, premises, craft, vehicles or other things or a class of them.
- A COVID-19 may order the DG or the Chief Executive to do certain things by written notice. The power of the DG or the CE may be subject to any criteria or conditions of the Order.
The things that may be done by written notice are:
- specify, determine, designate, define, or approve any matters, impose conditions, or give directions, required for the operation of a provision of this Act or a COVID-19 order, including matters that affect or determine the application, operation, or scope of a provision:
- determine that any provision of this Act or a COVID-19 order (even if the provision is beneficial) does not apply in any specified circumstances, in any specified way, or to any specified persons, places, premises, craft, vehicles, or other things, or to any specified class of persons, places, premises, craft, vehicles, or other things:
- A COVID-19 Order may actually permit something to be done even although it could be prohibited under section 11 or section 11AB. However the Order must be subject to special conditions.
This is somewhat confusing. Section 11 (and 11AB) set out the framework for orders. The Orders themselves are the way in which the purposes set out in section 11 are given effect.
For example pursuant to section 11(1)(e) an order may prohibit gatherings or a particular type of gathering in particular places or premises.
If there has been no Order prohibiting, say, gatherings of more than 50 people at any theatre, the presumption is that gatherings of more than 50 people at a theatre would be permitted.
Even so such gatherings could potentially be the subject of a section 11 Order. If we were to apply a purposive interpretation to the legislation – that is to make it work so that it achieve the objectives or purposes of the Act – this provision of section 12 could authorize the making of an Order specifically allowing more than 50 people to gather at a theatre but only subject to the special conditions that such gatherings could not take place after 10:00 pm
The effect of this is that the gathering of more than 50 people at a theatre, which was not prohibited but which potentially could be prohibited, has had a limitation put on it by a section 12(1)(e).
Limitations on COVID-19 Orders
Section 12 sets out certain limitations on COVID-19 Orders.
They may not apply to a specified individual.
If they are made by the DG they may apply only within the boundaries set out in section 10(a).
Orders may not be made under section 11(1)(e)(i) in relation to
- Premises or parts of premises used solely as a dwellinghouse
- A prison
Orders may not be made under section 11(1)(e)(i) or (iii) in relation to
- Premises within the Parliamentary precincts
- Premises whose principal or only use is as a courtroom or Judge’s chambers or a court registry.
Finally the last two sub-sections deal with the circumstances where a breach of an order may take place notwithstanding that there has been the disapplication of a provision or requirement.
Section 13 is an important section because it deals with the legal effect of COVID-19 Orders. It deals primarily with the situation where there may be a conflict between COVID-19 Orders and other legislation or enactments.
A COVID-19 Order cannot be held to be invalid just because it has provisions that are inconsistent with the Health Act 1956. (s.13(1)(a))
A COVID-19 Order cannot be held to be invalid just because it has provisions that are inconsistent with any other enactment relevant to the subject matter of the Order. (s.13(1)(a))
A COVID-19 Order cannot be held to be invalid just because it confers a discretion on any person, or allows any matter or thing to be granted, specified, determined, designated, defined, approved, or disapplied by any person, or allows a person to impose conditions or give directions, whether or not there are prescribed criteria.
Significantly, section 13(2) specifically provides that s.13(1)(a) – provisions noted above – does not limit or affect the application of the NZBORA.
I have already made some brief observations on the provisions of NZBORA. Section 13(2) does not mean that NZBORA trumps COVID-19 Orders. The provisions of sections 4 – inconsistency with other legislation – and section 5 – justified limitations – still apply. What it does mean is that a Court is required to give an interpretation to the legislation or in this case the Orders that is as far as possible consistent with the NZBORA. I shall discuss this when I consider the validity of the Order relating to the Air Border below.
Finally section 13(3) makes it clear that noting in the Act prevents any legal proceedings in respect of the making or terms of any COVID-19 Order. This makes it clear that the Courts may scrutinize the validity of COVID-19 Orders.
Formalities for COVID-19 Orders
Covid-19 Orders are subject to certain formalities. These are set out in section 14 – 16 of the CPHRA and deal with the form, publication and duration of orders, the amendment and extension of orders and the revocation of Ministerial Orders if not approved by the House of Representatives.
I shall briefly set out these requirements section by section.
Section 14 – Publication Requirements
There are three mandatory requirements for COVID-10 Orders.
- Orders must be in writing
- Orders must state the area to which they apply
- Orders must state when they come into force.
Orders must be published at least 48 hours before they come into force. Publication must be in the manner set out in Part 3 of the Legislation Act 2019.
However there is an exception to the 48 hour time requirement for publication.
The Minister or DG (as the case may be) need not comply with the 48-hour time limit if they are satisfied that
- the order should come into force urgently to prevent or contain the outbreak or spread of COVID-19; or
- the effect of the order is only to remove or reduce requirements imposed by a COVID-19 order.
In such a case the Order comes into force even if it has not been published.
The duration of orders made by the DG is limited. Orders made by the DG expire 1 month after the date upon which it comes into force unless it has been extended or earlier revoked.
Finally there is a directions that the Minister and the DG must keep their Orders under review.
Section 15 – Amendment or Extension of Orders
Section 15 deals with the amendment or extension of COVID-19 Orders.
The Minister has the power at any time to amend, extend or revoke any Order which he or she has made. In addition the Minister has the power to revoke any COVID-19 Order made by the DG
The DG has the power at any time, to amend, extend by up to 1 month on each occasion, or revoke any COVID-19 order which he or she has made.
The requirements that apply to the making of any COVID-19 Order apply to its amendment or extension with necessary modifications.
Section 15 makes it clear that amendments, extensions and revocations of COVID-19 Orders are secondary legislation and publication of secondary legislation is governed by Part 3 of the Legislation Act 2019.
If the amended or extended order authorises any person or class of persons to either grant an exemption or authorise a specified activity under section 12(1)(d) of the Act
- the exemption or authorisation is secondary legislation unless it applies only to 1 or more named persons or specified things; and
- the amended or extended order must contain a statement to that effect.
Section 16 – Approval of the House of Representatives
Section 16 sets out a requirement for the approval of the House of Representatives to COVID-19 Orders.
Section 16 defines what is called a “relevant period”. A relevant period is the longer of the following:
- the period of 10 sitting days of the House of Representatives after the date on which the order is made:
- the period of 60 days after the date on which the order is made:
- any other period specified by a resolution of the House of Representatives.
Thus, assuming that the time period has not been extended by the House, the maximum duration of a “relevant period” is 60 days (approximately 2 months) after the date upon which an order has been made.
Section 16 states that an Order made by the Minister is revoked is it has not been approved by the House within the relevant period. Thus, if a Minister’s Order is not submitted for approval within the 60 day period it is revoked by operation of law and ceases to be of any effect unless a resolution of the House says otherwise.
Revocation arising from the lack of approval of the House does not effect action taken to effect or enforce the order. Thus the revocation of the Order under section 16 is not retrospective. The Order is deemed to be in during (say) the 10 day period and officials are entitled to take steps to implement and enforce the order. Once the order has been revoked from that time is has not effect.
A resolution made under section 16 – say for approving an Order – is secondary legislation and is subject to the publication requirements set out in Part 3 of the Legislation Act 2019.
Section 16(6) directs that the Clerk of the House of Representatives must lodge a copy of the resolution with the Parliamentary Counsel Office for the purpose of publication under the Legislation Act 2019.
However, non-publication does not effect the validity that a resolution may have approving an Order or that an Order had been revoked or otherwise the subject of a resolution by the House.
Sections 8 – 16 as discussed are the most important operative sections of the CPHRA. The way in which the sections are expressed make it clear that Orders that may be made may be necessary and urgent given the circumstances of the pandemic. This does not absolve those making the Orders of the obligation to promulgate and publish Orders so that citizens may be aware of the authority that the Government or officials claim to be acting under in going about their business of enforcing the Orders or putting them into effect.
It will also be noted that the types of Orders that may be made are highly invasive and involve significant abrogations of the rights and expectations of New Zealand citizens and residents under NZBORA, any other legislation or under the common law. For this reason the CPHRA goes to some pains to emphasise the importance of the NZBORA and the necessity that the Minister and/or the DG apply their minds to the rights that are contained in NZBORA. It may well be – and it has been shown to be the case – that there has been an abrogation of a guaranteed right under NZBORA but one can assume that at least the scope of the abrogation has been considered and hopefully mitigated to the greatest extent possible by Ministerial or Official consideration.
Summarising the Process for Making an Order
In this section of the paper I shall set out a checklist summarizing the steps that must be taken in making an order and hopefully provide some guidance through the labyrinth of language and requirements that is the Order making process.
Let us assume that officials have recommended to the Minister that an Order be made pursuant to section 11 of the CPHRA.
- Any one of the three pre-requisites set out in section 8 must exist.
- If the Minister is making the Order the requirements set out in section 9 must be fulfilled – all 5 matters set out MUST be considered although one of the matters contains a discretion.
It is important to note that the Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms contained in the New Zealand Bill of Rights Act 1990
For many of the orders made there will be some limitation on one or more of the rights and freedoms in NZBORA. In such a case the Minister must apply a justified limitation test.
- In the event that the DG is making an Order the requirements set out in section 10 must be fulfilled.
A reading of section 10 would suggest that Orders made by the DG may have a geographical impact.
DG Orders may be required in cases of urgency or necessity.
Once again there is a requirement to measure the Order against NZBORA. the DG must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990. Once again if there is to be a limit on NZBORA rights the limitation must be justified.
Finally Orders made by the DG must be appropriate to achieve the purposes of the Act. “Appropriate” is a much used word and is somewhat slippery in meaning in that it reflects a subjective element as to what may be “proper”. In my view the word “necessary” would have been much more satisfactory.
- Once the prerequisites and requirements have received compliance the Order may be made.
- The Order must fall within the ambit of the types of Orders that may be made under section 11.
- Section 12 sets out the scope of or limitations upon the Orders that may be made. In making an Order the provisions of Sections 11 and 12 should be read together.
- Once the language of the Order has been settled the formalities provisions of sections 14 – 16 come into play.
- Orders must be in writing
- Orders must state the area to which they are applicable
- Orders must state the date upon which they come into force.
- Orders must be published in the manner set out in Part 3 of the Legislation Act 2019
- Publication must be within 48 hours of the time that the Order comes into force unless the urgency or removal or reduction exceptions apply.
- Orders made by the DG are of limited time duration. Both the Minister and DG must keep Orders under review.
- The Order must be approved by the House of Representatives within the “relevant period” defined by the Act.
If one wished to challenge the validity of an Order from a procedural point of view pursuant to section 13(3) CPHRA it would be necessary for the Crown to establish each of the steps (along with the detail) from compliance with pre-requisites to approval of the House of Representatives.
At the same time in considering such a question, and indeed in any challenge to Orders or processes under the Act or associated Orders, a Court would take into account the purposes of the Act and consider whether the Order or actions not only received procedural compliance but were within the wider ambit of the purposes of the Act.
Does an Order Override a Specific Statute?
This involves a consideration of section 13(1) of the CPHRA. I have already referred to this section in summary but for this discussion I set out the full section as follows:
- A COVID-19 order may not be held invalid just because—
- it is, or authorises any act or omission that is, inconsistent with the Health Act 1956 or any other enactment relevant to the subject matter of the order; or
- it confers a discretion on any person, or allows any matter or thing to be granted, specified, determined, designated, defined, approved, or disapplied by any person, or allows a person to impose conditions or give directions, whether or not there are prescribed criteria.
For the purposes of this discussion I have chosen to look at the COVID-19 Public Health Response (Air Border) Order (No 2) 2020, the New Zealand Bill of Rights Act 1990 and the Immigration Act 2009.
Section 13 of the Immigration Act states as follows:
- For the purposes of this Act, every New Zealand citizen has, by virtue of his or her citizenship, the right to enter and be in New Zealand at any time.
- However, to establish his or her right to enter New Zealand, a New Zealand citizen must prove his or her citizenship and establish his or her identity by complying with border requirements.
- Nothing in this Act (other than subsection (2)) abrogates the right declared in subsection (1), and—
- no provision of this Act that is inconsistent with that right applies to a New Zealand citizen; and
- no New Zealand citizen is liable under this Act to deportation from New Zealand in any circumstances.
- Without limiting subsection (3), no New Zealand citizen—
- requires a visa or entry permission; or
- may hold a visa, or be granted entry permission, except a New Zealand citizen who—
- is a national of 1 or more other countries; and
- wishes to enter New Zealand other than as a New Zealand citizen; and
- has not been granted New Zealand citizenship, been registered as a New Zealand citizen by descent under section 7(2) of the Citizenship Act 1977, or been issued with an evidentiary certificate under section 21 of the Citizenship Act 1977 confirming that he or she is a New Zealand citizen.
This section establishes
- The right of entry into New Zealand by a citizen at any time
- The necessity of proof of citizenship or identity (usually by as passport)
- Nothing in the Immigration Act relating to duration of stay, visa requirements, deportation etc is applicable to a New Zealand citizen
- A New Zealand citizen does not require a visa to enter New Zealand unless that person falls within the exceptions set out in section 13(4)(b)(i) – (iii)
Section 18 of the New Zealand Bill of Rights Act 1990 deals with freedom of movement and states:
- Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand.
- Every New Zealand citizen has the right to enter New Zealand.
- Everyone has the right to leave New Zealand.
- No one who is not a New Zealand citizen and who is lawfully in New Zealand shall be required to leave New Zealand except under a decision taken on grounds prescribed by law.
It will be seen that the provisions of section 18 NZBORA and section 13 of the Immigration Act have the same effect.
The COVID-19 Public Health Response (Air Border) Order (No 2) 2020 contains provisions which contradict the provisions of the Immigration Act and the NZBORA. Furthermore, there have been 14 Amendments to this Order but these do not effect the main thrust of the Order.
It should also be noted that the Order which provides for self-isolation of New Zealand citizens returning to New Zealand – COVID-19 Public Health Response (Air Border) Order 2021 – commences at 11:59 pm on 27 February 2022.
COVID-19 Public Health Response (Air Border) Order (No 2) 2020
I shall briefly set out the effect of this Order which I shall refer to as the ABO2 Order.
The Order is made pursuant to section 11 and 15(1) of the CPHRA.
It commenced at 11:59pm on 6 September 2020.
The Order applies to the whole of New Zealand.
Its purpose is to prevent, and limit the risk of, the outbreak or spread of COVID-19 by imposing certain requirements in relation to persons arriving in New Zealand by air (including medical examination and testing for COVID-19, and commencement of isolation or quarantining, as soon as practicable after arriving in New Zealand).
The Order makes certain provision for Quarantine Free Travel which I will not discuss.
The significant clauses for this discussion are clauses 7A – 8B of the ABO2 Order.
There are certain obligations cast upon air carriers. Air carriers cannot cause an aircraft to arrive in New Zealand unless each person on board has a confirmed allocation.
A confirmed allocation is defined in section 32J of the CPHRA. It is a confirmed allocation issued under the managed isolation allocation system to an MIQF.
Thus the obligation is on an airline to prevent a person from boarding a flight landing in New Zealand if that person does not have a confirmed allocation.
In addition the air carrier must ensure that a person checking in for a flight has a negative COVID test 48 hours before departure or some other evidence of a medical examination that confirms that person’s COVID status.
If a flight departs from a very high risk country the airline must ensure that person does not board the flight.
If the flight is departing from other countries the airline has an obligation to take reasonable steps to ensure that the passenger is informed about the consequences of having been in a high risk country within 14 days of the date of arrival in New Zealand and if they have been in such a country that they do not board the aircraft.
There are also vaccine requirements that must be fulfilled before a person can board an aircraft for New Zealand.
The evidence required is confirmation of—
- a record of having received 1 or more COVID-19 vaccines that shows their name; and
- the name of the COVID-19 vaccine or vaccines they have received; and
- the name of the agency that administered the COVID-19 vaccine or vaccines; and
- the place where they received 1 or more doses of the COVID-19 vaccine or vaccines; and
- the date on which they received—
- the dose of the COVID-19 vaccine, if only 1 dose of the vaccine is required to be satisfy the vaccination requirement; or
- each dose of the COVID-19 vaccine, if 2 or more doses of the vaccine are required to satisfy the vaccination requirement.
Then R 8 and following set out the obligations on travellers arriving in New Zealand.
The person must report for and undergo medical examination and testing for COVID-19, as soon as practicable after their arrival, at the airport at which they arrive.
The person must—
- have a confirmed MIQF allocation; and
- produce evidence of a confirmed allocation when requested by 1 or more of the following:
- a health protection officer or a medical officer of health:
- a staff member or representative of the relevant air carrier:
- an immigration officer.
The person must also produce evidence of a negative COVID test undertaken 48 hours before the journey to New Zealand began or evidence of a medical examination confirming the person’s COVID status.
The person must then be isolated or quarantined (commencing as soon as practicable after arriving in New Zealand) in accordance with the Isolation and Quarantine Order, subject to any IQ exemption applying in relation to the person.
If the person’s place of isolation or quarantine is an MIQF, the person must travel from the airport to the MIQF in accordance with directions of the chief executive.
The Effect of the COVID-19 Public Health Response (Air Border) Order (No 2) 2020
Although the Government has been at pains to say that New Zealand citizens have a right of entry and the restrictions imposed by the ABO2 Order are necessary the reality is that the Order imposes a number of restrictions upon returning New Zealanders by imposing conditions that must be fulfilled before they can enter New Zealand. The most restrictive and difficult are the MIQF requirements. The other requirements, although amounting to restrictions, are less difficult to comply with.
The overall effect of the ABO2 Order is to abrogate the right of entry contained in the Immigration Act 2009 and the NZBORA 1990. The only condition of entry imposed upon entry in the Immigration Act is proof of citizenship and identity. That is all.
The Application of Section 13(1) CPHRA
The issue now becomes whether or not the provisions of the ABO2 Order can override the effect of section 13 of the Immigration Act and whether they amount to a justified limitation of the right contained in section 18 of NZBORA
This involves an interpretation and the application of section 13(1) of the CPHRA.
The first question that arises is how specific must a statute or Order by if its provisions are going to have the effect of overruling an existing statute?
In this case there are two parts to section 13(1)(a). It says that just because an Order is inconsistent with the provisions of the Health Act 1956, it cannot be held to be invalid.
Thus if there is a conflict between the Health Act and the Order the Order trumps the Health Act. That is clear and the specific legislative conflict is identified.
Section 13(1)(a) then goes on to say that an Order cannot be held to be invalid because it is or authorizes an act that is inconsistent with any other enactment relevant to the subject matter of the Order.
No clear or specific legislative conflict is identified. All that needs to take place for an Order to trump a statute is that the statute must have the same subject matter as the Order.
It is not necessary for section 13(1)(a) to specifically state that the inconsistency of an Order with the provisions of the Immigration Act do not render the provisions of the Order invalid. The case law on the CPHRA and in particular the Orders mandating vaccines make that clear.
In the Four Midwives Case Palmer J referred to the comments of Cooke J in the Four Aviation Employees Case noted that the empowering provisions did not expressly address vaccination and thus a degree of uncertainty arises from its use as the basis of such an order. This does not mean that the Order is invalid.
In construing the applicability of section 13(1) its is necessary to look at the subject matter of the order and consider whether the Immigration Act has the same subject matter. The subject matter of the ABO2 order involves the circumstances by which people may enter New Zealand. The subject matter of section 13 of the Immigration Act deals with the circumstances by which New Zealand citizens may enter New Zealand. Thus the subject matter is the same.
In addition if we look at the type of Orders that can be made as set out in section 11 we find that Section 11 (ia) permits entry to any specified areas, places, or premises only in specified circumstances or in compliance with specified measures which does make it clear that orders interfering with movement may be made. Section 11(1)(a)(iv) deals with travel although it would seem to relate more to travel in New Zealand that specifically to traveller returning from overseas. However the effect of these Orders is that they restrict the freedom of movement guaranteed under NZBORA.
Importantly for this discussion however section 11(1)(a)(x) provides that Order may be made requiring persons to satisfy any specified criteria before entering New Zealand from a place outside New Zealand, which may include being registered to enter an MIQF on arrival in New Zealand. Thus it is clear that Parliament turned its mind specifically to the subject matter of an Order such as ABO2. That underscores the intention of the legislature in considering whether legislation such as the Immigration Act was within the scope of an Order under CPHRA.
Therefore it is clear that even if there is a conflict with the provisions of the Immigration Act, that conflict does not render the Order invalid.
The Bill of Rights Act
The cases that have been decided dealing with legislation and Orders under the Health Act 1956 and the CPHRA have considered the application of NZBORA.
In section 13(2) the NZBORA still is applicable notwithstanding the provisions of section 13(1) and the application of NZBORA is thereby reinforced. This means that a challenge to an Order can still be mounted based upon the applicability of NZBORA even if there is another conflict with a specific statute – in this case with the Immigration Act.
The approach adopted by Palmer J in the Four Midwives Case is very helpful in considering the proper approach to NZBORA analysis in COVID-19 legislation cases.
The right under the NZBORA that is engaged is identical to that stated in the Immigration Act. Section 18(2) NZBORA provides every New Zealand citizen has the right to enter New Zealand.
Along with the approach in Four Midwives it is hard to argue that the ABO2 order was not a justified limitation of the right having regard to the purposes of CPHRA and the Order itself. However, what of section 6 – that the enactment be given a meaning consistent with the rights and freedoms contained in NZBORA?
Section 6 requires, as far as possible, legislation to be interpreted consistently with the Bill of Rights. That requires reference to both the relevant right or freedom and to whether the limit is justified.
No order can be made under the empowering provision that limits the right unless it is reasonable, prescribed by law and can be demonstrably justified in a free and democratic society under s 5 of the Bill of Rights.
So what difference does the Bill of Rights make to the interpretation of the empowering provision here? The right to enter New Zealand under s 18(2) of the Bill of Rights is engaged as I have observed.
Section 6 of the Bill of Rights requires the empowering provision in s 11 of the Act to be interpreted consistently with the Bill of Rights. But if a limit is reasonable, prescribed by law and demonstrably justified in a free and democratic society under s 5, it is consistent with the Bill of Rights. In this case, it would be unlikely to be held that it is an unjustified limit.
So the Bill of Rights does not require the usual purposive interpretation of s 11 to be narrowed to mean that the Order is outside its scope. Indeed, s 9(1)(ba) of the Act is explicitly indicates that Parliament envisaged that orders may be made which limit rights and freedoms under the Bill of Rights, as long as the limits are reasonable and demonstrably justified under s 5 of the Bill of Rights. That is underpinned by the language of section 11(1)(a)(x) CPHRA.
Thus, given the approach of the Courts in the vaccine cases it is likely that a similar analysis would be applied to a challenge based on section 18(2) NZBORA
The Proposed COVID-19 Public Health Response (Air Border) Order 2021
The proposed Order does not have provisions relating to compulsory MIQ for returning New Zealanders. However it continues to provide for what could be called conditional entry for New Zealand citizens.
Although the new Order is not as invasive of individual liberties and does not involve the equivalent of solitary confinement for New Zealand citizens upon arrival in their country of citizenship, nevertheless the provisions of the Immigration Act and NZBORA relating to entry into New Zealand do not (with the exception of the Immigration Act citizenship and identity verification requirements) allow for conditional entry into New Zealand. Thus the proposed 2021 Order is subject to similar objections as the ABO2 Order 2020.
Nevertheless the statutory framework is likely to result in an outcome similar to that proposed for a challenge to the ABO2 Order. The particular circumstances under which the legislation was enacted, its legislative structure and emphasis on public safety in a time of pandemic provide a basis for justified limitations upon rights otherwise enjoyed. If the pandemic were to pass and\or COVID were to become endemic in the community it is likely that the outcome may be different because the rationale for the Order would no longer exist.
 H.A. Guerber The Myths of Greece and Rome Harrop, London Revised ed 1956 p. 148
 https://covid19.govt.nz/about-our-covid-19-response/legislation-and-key-documents/#key-legislation (Last accessed 26 January 2022)
 http://www.pco.govt.nz/covid-19-legislation/ (Last accessed 26 January 2022)
 https://covid19.govt.nz/ (Last accessed 27 January 2022)
 COVID-19 Public Health Response Act 2020
COVID-19 Public Health Response Amendment Act 2020
COVID-19 Recovery (Fast-track Consenting) Act 2020
COVID-19 Response (Further Management Measures) Legislation Act 2020
COVID-19 Response (Further Management Measures) Legislation Act (No 2) 2020
COVID-19 Response (Requirements For Entities—Modifications and Exemptions) Act 2020
COVID-19 Response (Taxation and Other Regulatory Urgent Measures) Act 2020
COVID-19 Response (Taxation and Social Assistance Urgent Measures) Act 2020
COVID-19 Response (Urgent Management Measures) Legislation Act 2020
Immigration (COVID-19 Response) Amendment Act 2020
Imprest Supply (Third for 2019/20) Act 2020
Overseas Investment (Urgent Measures) Amendment Act 2020
Remuneration Authority (COVID-19 Measures) Amendment Act 2020
Social Security (COVID-19 Income Relief Payment to be Income) Amendment Act 2020
 Less charitably minded people might say “requisition”
 http://www.pco.govt.nz/covid-19-legislation#sl (Last accessed 27 June 2022)
 Section 3(3) COVID-19 Public Health Response Act 2020
 See section 10 Legislation Act 2019.
 Section 4 COVID-19 Public Health Response Act 2020
 See the discussion of section 16 CPHRA that follows
 Section 11 of the Legislation Act replaced section 6 of the Interpretation Act 1999 which was referred to in this context in Borrowdale v Director-General of Health  NZHC 2090. The concept of the lse being seen as always speaking was contained in section 5(d) of the Acts Interpretation Act 1924
 Section 8 COVID-19 Public Health Response Act 2020
 Section 4 New Zealand Bill of Rights Act 1990
 Four Midwives v Minister for COVID-19 Response  NZHC 3064 at .
 Section 11(1)(e) Covid-19 Public Health Response Act 2020
 An example of such an order is the COVID-19 Public Health Response (Point of Care Tests) Order 2021
 Section 69 Legislation Act 2019
 Defined as the Chief Executive of a responsible agency. A responsible Agency is defined as the department of the public service or agency or entity that, with the authority of the Prime Minister, is responsible for the administration of MIQFs – see section 5 Covid-19 Public Health Response Act 2020
 Section 12(1)(e) Covid-19 Public Health Response Act 2020
 requiring any places, premises, craft, vehicles, or other things to be closed or only open if specified measures are complied with:
 prohibiting gatherings of any specified kind in any specified places or premises, or in any specified circumstances:
 An urgency exception
 The removal or reduction exception
 See sections 9 and 10 for these requirements
 A note at the end of the section sets out the publication requirements contained in the Legislation Act although these are for guidance only.
 See Four Midwives v Minister for COVID-19 Response  NZHC 3064 at 
 Four Midwives v Minister for COVID-19 Response  NZHC 3064 at 
 The emphasis is mine.
 There are certain exemptions but they are not relevant for the purposes of this discussion. The flight may be to New Zealand or a multi-leg flight to New Zealand.
 Online allocations to MIQFs may be issued on a basis that the Minister decides.
In making a decision under subsection (1), the Minister must take into account—
- the right of New Zealanders under section 18(2) of the New Zealand Bill of Rights Act 1990 to enter New Zealand; and
- the need to mitigate, so far as possible, the social, economic, and other impacts of COVID-19. (see section 32M CPHRA.
 See ABO2 Order R. 8A(2)(b)
 Four Aviation Employees v Minister Covid Response  NZHC 3012; Four Midwives v Minister for COVID-19 Response  NZHC 3064
 Four Midwives v Minister for COVID-19 Response  NZHC 3064