A.1 Legislation Te ture

1.1 The first legislative framework

Acts of Parliament that could be used to manage a pandemic were already in place well before COVID-19: the Health Act 1956, the Civil Defence Emergency Management Act 2002 and the Epidemic Preparedness Act 2006.ⁱ

While some new legislation and amendments were needed later as the response evolved (see section 1.2), the combination of the following three statutes broadly gave the Government the key initial legislative powers it needed.

1.1.1 Public health legislation

Health Act 1956¹

The Health Act 1956 sets out the public health functions of the Ministry of Health, its officials and other parts of the health system. Between 1956 and the outbreak of the SARS-Cov-2 virus here in 2020, several amendments were made to the 1956 Act,ⁱⁱ including some that were made in conjunction with the enactment of the Epidemic Preparedness Act 2006 (discussed in section 1.1.2).

One of the most significant sets of provisions in the Health Act 1956 is Part 3, in particular section 70, which gives medical officers of health broad powers to manage infectious and notifiable diseases, including:

• Requiring people to ’report themselves’ or submit for medical examinations at specified times and places;
• Requiring persons, places, buildings, ships, aircraft, animals and things to be isolated, quarantined or disinfected;
• Forbidding people, ships, vehicles, aircraft, animals, or things to come or be brought to any port or place in a health district from any port or place which is, or is supposed to be, infected with any infectious disease;
• Requiring people to remain in a health district or the place in which they are isolating or quarantining until they have been medically examined and found to be free from infectious disease, or have undergone preventive treatment that may have been prescribed;
• Closing any premises within a health district; and
• Forbidding the congregation of people at various outdoor places of amusement or recreation.

Part 6 section 117 (1) provides for the introduction of public health regulations to manage people who have (or are thought to have) an infectious disease; for the vaccination of people to prevent quarantinable diseases; the contacts of infected people to be identified; and for a range of other purposes important in a pandemic.

These special powers of section 70 of the Health Act 1956 were activated in early March 2020 when COVID-19 was formally recognised as a quarantinable disease giving rise to an epidemic.ⁱⁱⁱ The Prime Minister issued an Epidemic Preparedness (COVID-19) Notice 2020 on 25 March 2020, which was repeatedly renewed and remained in force until October 2022. It enabled medical officers of health to use section 70 and 71^iv powers throughout this period and authorised the New Zealand Police to enforce those powers to control the virus’s spread.²

Part 4 of the Health Act 1956 also provides extensive statutory powers in relation to subjecting ships and aircraft (and people on board) to quarantine and inspection requirements.

Section 70 was amended in 2006 as part of the wider package of legislation reform in response to concerns of a pandemic. This package also included what became the Epidemic Preparedness Act 2006. The Minister of Health’s first reading speech noted:

“The primary amendments in the bill are to the Health Act. The amendments clarify, modernise, and, where necessary, close gaps in the law relating to public health emergencies and quarantine powers. The current provisions are old and were made in the days when ship travel was the most common way in which people arrived in New Zealand. The amendments will ensure that the Act is more responsive to current epidemic and pandemic influenza scenarios.”³

The Health (Protection) Amendment Act 2016

The Health (Protection) Amendment Act 2016 originated from a Bill first introduced in 2014. A key concern at the time was the emergence of infectious diseases that were not sufficiently catered for in the Health Act 1956. The amendments increased the range of infectious diseases that would be notifiable, improved management of individuals with infectious diseases that put other people at risk, and strengthened contact-tracing provisions. As the then-Minister of Health, Dr Jonathan Coleman, said in the first reading debate: ‘[The Health Act 1956] is a very longstanding piece of legislation, but, although excellent in many respects, in some areas it has not kept up with the times’. ⁴

The main amendment to the Health Act 1956 was the enactment of a new Part 3A which concerned the management of infectious diseases (with a focus on improving the measures to manage and protect the public from sexually transmitted diseases). The amendment also established a clear legal basis for the principles applying to medical officers of health and the courts in exercising their disease management powers, as well as providing for:

• Overarching human rights principles to be taken into account by decision-makers.
• Directions that could be given to individuals who pose a public health risk (and others).
• Directions to undergo medical examinations.
• Directions to close educational institutions.
• Offences for failing to comply with directions.
• Authority to make public health and medical examination orders, including orders relating to contacts of infected persons, as well as procedural provisions for court hearings and appeals; and
• Provisions authorising contact tracing and imposing duties on peopleinvolved in that process.

The amendments sought to recognise and balance the tension between disease surveillance and prevention on the one hand and human rights on the other. However, the focus of the amendments was the control of infected or potentially infected individuals and their contacts, particularly for sexually transmitted diseases.^v While efforts were made to anticipate governance requirements of the kind that might arise in a future public health emergency, the need to provide for broadscale governance measures was not the focus at the time.

1.1.2 Civil defence legislation

Overlapping with the development of public health legislation was the incremental development of civil defence legislation in Aotearoa New Zealand.^vi The Civil Defence Act 1962 and Civil Defence Act 1983 provided public protection in civil emergencies – definitions were sufficiently broad to include epidemics and pandemics, but they did not purport to address exigencies of that kind^vii and sections 70 and 71 of the Health Act 1956 were not affected.

This changed, however, with the enactment of the Civil Defence Emergency Management Act 2002 (CDEM Act) which replaced the older civil defence legislation. In the CDEM Act, an ‘emergency’ was broadly defined to include those emergencies arising from ‘infestation, plague or epidemic’, thus falling within the scope of both the civil defence legislation and the public health legislation. The link between civil defence and public health legislation was strengthened with the CDEM Act amending the Health Act 1956 to allow the powers under section 70 to be activated by a declaration of a state of emergency under the CDEM Act.^viii

Civil Defence Emergency Management Act 2002⁵

This Act sets out a hazard risk framework encompassing all ‘4 Rs’ – reduction, readiness, response and recovery^ix – to enable emergencies to be managed at the local, regional and national level (using a devolved accountability approach).

The Act encompasses emergencies caused by hazards such as earthquakes, weather events as well as epidemics, chemical leakages, technological failures and more. For this reason, the Act is said to take an ‘all hazards’ approach to emergency management and the recovery from local, regional and national emergencies.

The Act authorises the Minister for Emergency Management to declare a state of national emergency in situations where:⁶

• An emergency has occurred or may occur (this could be due to a natural hazard or something else like a technological failure); and
• The emergency is, or is likely to be, ‘of such extent, magnitude, or severity’ that the civil defence emergency management necessary or desirable is likely to be beyond the resources of the Civil Defence Emergency Management Groups whose areas may be affected.

For a declaration to be made, certain legal tests must be met – such as the definition of emergency which includes that the emergency causes or may cause ‘loss of life, injury, illness or distress or in any way endangers the safety of the public or property …’ and ‘cannot be dealt with by emergency services, or otherwise requires a significant and co-ordinated response under this Act [the Civil Defence Emergency Management Act 2002]’.⁷ Parliament must meet whenever a state of national emergency is declared. Declarations can be extended for as long as the test in the Act can be met and is required. Once a state of emergency ends, the minister can then put in place a national transition period to support recovery activities, and this too can be extended if necessary. In some circumstances, powers in the Act can be used to support emergencies, such as a pandemic, as long as they are not in substitution for powers in other enactments (e.g. the Health Act 1956).

The Act sets out the duties and planning obligations of central government agencies, local authorities, the emergency services, and lifeline utility providers. Section 39 of the Act provides for a national civil defence emergency management plan that addresses ‘the hazards and risks to be managed at the national level’ (we describe the plan more fully in section 2.2).

After the Canterbury earthquakes in 2010/2011, Parliament’s Regulations Review Committee had examined what kind of legislative response was best suited to dealing with national emergencies. Its 2016 report found that the Civil Defence Emergency Management Act 2002 was sufficient, supplemented by bespoke legislation that could be developed if necessary: generic national emergency legislation was not needed.⁸ In 2023, an Emergency Management Bill was drafted to replace the 2002 Act and introduced to Parliament in June 2024. After the general election, the incoming Government decided not to proceed with it and to introduce a new Bill later.⁹

Epidemic Preparedness Act 2006¹⁰

This Act was introduced to give the Crown adequate statutory powers to ‘properly respond to and manage a major public health emergency, such as the threat or actual outbreak of a highly infectious disease, whether occurring in Aotearoa New Zealand or overseas’.¹¹ Developed amid growing concerns about an imminent bird flu epidemic, it addressed gaps that had been identified in the Crown’s powers under the Health Act 1956.¹² It had become clear that the machinery of government in Aotearoa New Zealand, including a wide range of statutory powers, might need to be modified in an epidemic or pandemic. The purposes of the Epidemic Preparedness Act 2006 were summarised as follows:

The principal purpose of this Act is to ensure that there is adequate statutory power for government agencies: a) to try to prevent the outbreak of epidemics in New Zealand; and b) to respond to epidemics in New Zealand; and c) to respond to certain possible consequences of epidemics (whether occurring in New Zealand or overseas).

This Act also has the following purposes:

a) to ensure that certain activities normally undertaken by people and agencies interacting with government agencies can continue to be undertaken during an epidemic in New Zealand;

b) to enable the relaxation of some statutory requirements that might not be capable of being complied with, or complied with fully, during an epidemic.¹³

The machinery by which the legislative purposes were intended to be effected was found difficult to follow at the time.^x It is beyond the scope of this report, and unnecessary for present purposes, to deconstruct the Epidemic Preparedness Act in granular detail.^xi

The Act allows the Government to use special powers in the event of a quarantinable disease outbreak likely to significantly disrupt essential government and business activity. To activate these powers, the Act requires the Prime Minister to first issue an epidemic notice, in the following terms:

“With the agreement of the Minister of Health, the Prime Minister may, by notice in the Gazette, declare that he or she is satisfied that the effects of an outbreak of a stated quarantinable disease (within the meaning of the Health Act 1956) are likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand (or stated parts of New Zealand) significantly (section 5, Epidemic Preparedness Act).”

The notice is effective for three months and renewable if required. If necessary, it can be supported by an epidemic management notice, enabling provisions in existing laws to be modified if the epidemic makes complying with them impossible or impractical. However, modifications can go no further than what is reasonably necessary in the circumstances. Core constitutional legislation such as the New Zealand Bill of Rights Act 1990 and Electoral Act 1993 cannot be modified. No modification can be made to a person’s custody or detention, and under section 12 of the Act, the minister with responsibility for the legislation being modified has to recommend the change to be made.

Section 15 of the Epidemic Preparedness Act authorises the Governor-General to make secondary legislation (Order in Council) to amend an Act of Parliament (an Immediate Modification Order), with some exceptions (for example, as noted above, the Bill of Rights Act cannot be modified). The ability to amend or suspend primary legislation by an Order in Council,^xii allows the Governor-General (on recommendation of a minister of the Crown) to override Parliament and is therefore subject to strict controls (for example, by ensuring epidemic notices are self-terminating or subject to ongoing review, and that any immediate modification orders are presented to the House as soon as practicable and can be disallowed).

The triggering of special powers in the Health Act 1956 to address an epidemic in Aotearoa New Zealand could be authorised by three different mechanisms:

• Authorisation by the Minister of Health;
• A state of emergency has been declared under the Civil Defence Emergency Management Act; or
• An epidemic notice (declared by the Prime Minister) under the Epidemic Preparedness Act.

A combined legislative approach for civil defence and public health emergencies results in statutory provisions that must necessarily cater for a vast array of inherently unpredictable exigencies.

1.1.3 Other Acts of Parliament

The COVID-19 Response (Urgent Management Measures) Legislation Act 2020 was passed on 25 March 2020, the same day it was introduced to Parliament.¹⁴ It was an ‘omnibus’ bill which amended the Education Act 1989, the Epidemic Preparedness Act 2006, the Local Government Act 2002, the Local Government Official Information and Meetings Act 1987, and the Residential Tenancies Act 1986. These amendments were needed so that COVID-19 Alert Level 4 measures could be implemented, or to make the response more effective – for example, the amendment to the Epidemic Preparedness Act 2006 added district court judges to the list of those who could modify court rules when an epidemic notice was in force, while the change to the Residential Tenancies Act 1986 introduced rent freezes and restricted the termination of tenancies.¹⁵

Other statutes that were subsequently used or amended to support the COVID-19 response were the Immigration Act 2009 (for example, regulations were added making it easier for Immigration New Zealand to refuse entry to cruise ship passengers and crew) and the Medicines Act 1981 (one amendment, for example, allowed a fourth dose of the Pfizer vaccine to be administered without prescription). The COVID-19 response was subject to both the New Zealand Bill of Rights Act 1990 and the Privacy Act 2020.

Other legislation was relevant to the pandemic response because it contained provisions enabling the government to quickly activate or modify certain processes in an emergency.^xiii For example, Section 13A of the Parole Act 2002 allowed the Parole Board to follow different procedures than usual when an epidemic notice was in place – such as determining whether to release an offender on parole solely on the basis of documents rather than through a hearing.

The COVID-19 Response (Further Management Measures) Legislation Act 2020¹⁶ was another omnibus bill that made amendments to a wide range of personal, property, commercial, construction, insolvency, gambling, financial services, food, waste disposal, local government, fire and emergency and other legislation. The Act sought to enable businesses, local government and others to manage the immediate impacts of the response, and to mitigate unnecessary and potentially longer-term impacts on society. Among other things, it provided for existing statutes to be amended to overcome ‘impracticability issues’ to address situations where legislative compliance was difficult because of public health measures in place, and to extend access to mechanisms for financial support.¹⁷

1.1.4 Secondary legislation

An array of secondary legislation – Orders in Council, regulations, rules, notices and other instruments – was used to implement public health measures at different times during the pandemic. The measures applying during the first national lockdown were individually introduced by means of orders made under section 70 of the Health Act 1956 (section 70 orders). But from late April 2020, combinations of infection control measures or powers started being collectively introduced via single orders, which simplified the process of getting Cabinet agreement to changes.

Between January and May 2020, three significant section 70 orders affected the general public:

• Order 1 (25 March 2020), which closed premises and forbade ‘people to congregate in outdoor places of amusement or recreation’.
• Order 2 (3 April 2020), which required all people to isolate or quarantine at home and to maintain physical distance from others.
• Order 3 (27 April 2020), which revoked and reissued Orders 1 and 2 and added clarifications.

Later in 2020, the legality of the early lockdowns was challenged in the High Court (Borrowdale v Director-General of Health).¹⁸ The Court found that, for the 9-day period between 26 March and 3 April 2020, the Government’s requirement that New Zealanders stay at home and in their bubbles was ‘justified, but unlawful’.¹⁹ However, the Court ruled that Order 2, which came into effect on 3 April 2020, provided for the legality of the lockdown. It also found that the Orders 1 to 3 were lawful.

The quantum of Orders was high (over 230 Orders in total) and during the alert level phases Orders were being regularly adjusted to reflect the evolving risk. When looked at by topic and considering the timeframe of the pandemic, the orders are spread across a range of areas. There were 195 COVID–19 Orders made over the period 2020-2022, covering:

Table 1: COVID-19 orders made during 2020–22

Orders and Notices	2020	2021	2022	Total
Alert Levels	9	37		46
Protection Framework		4	12	16
Air Border	4	15	7	26
Maritime Border	3	3	2	8
Quarantine Free Travel		18		18
Quarantine and Isolation	6	11	5	22
Self Isolation and Permitted Work			8	8
Testing	6	6	1	13
Vaccination		14	6	20
Masks			1	1
Contact Tracing			2	2
Infringement Offences		1	1	1
Exemption for RSE workers		2		2
Election and referendum	1			1
Miscellaneous (revocation and commencement orders)	1	3	7	11
Total	30	114	51	195

Source: Based on secondary legislation orders and Royal Commission staff calculations, https://www.legislation.govt.nz/

In addition, 24 Orders were made under Health Act 1956 (section 70)²⁰ and 12 Orders were made under the Epidemic Preparedness Act 2006.

There has been some commentary on the urgency and pace of some of the orders (often associated with alert level changes or border management) that raised challenges for implementation and enforcement (as noted in Chapter 2).

1.2 The second legislative framework: the COVID-19 Public Health Response Act 2020

In May 2020, Parliament passed the COVID-19 Public Health Response Act 2020 (CPHRA) under urgency. It became the new linchpin of the pandemic response, replacing the Health Act 1956 as the primary legal basis for the Government’s use of mandatory public health measures. The Bill’s Explanatory Note indicated the Government’s rationale for developing this bespoke piece of legislation to establish a ‘fit-for-purpose legal framework for managing the unprecedented circumstances of the COVID-19 epidemic in a coordinated and orderly way, even if there is no longer a national state of emergency’. It would also establish ‘decision-making processes that are more modern and consistent with recommended practice by legal academics and others’.²¹

The Act’s purpose was to support a public health response that prevented and limited the risk of outbreak or spread of COVID-19; avoided, mitigated or remedied the adverse effects of an outbreak; and was ‘coordinated, orderly, and proportionate’ and had ‘enforceable measures, in addition to the relevant voluntary measures and public health and other guidance that also supported that response’. An amendment made in August 2020 acknowledged that the public health response the Act supported would also ‘allo[w] social, economic, and other factors to be taken into account where it is relevant to do so’ and be ‘economically sustainable’ (section 4).

Sections 9 and 10 of the Act gave the Minister of Health and the Director-General of Health (with some limitations) the ability to make orders on a wide range of infection control measures, subject to prerequisites and requirements being met.^xiv The range of orders could cover isolation and quarantine, travel restrictions, COVID-19 testing and reporting, masking requirements, physical distancing and closure of businesses and services.^xv The subsequent COVID-19 Response (Vaccinations) Legislation Act 2021 broadened the scope of these section 11 orders so that people could be required to produce a vaccination certificate to enter certain premises. Section 70 orders, made under the Health Act 1956, continued to be used occasionally.²²

Section 13(1) of the CPHRA provided that a section 11 order could not be held invalid for specified reasons. Significantly, though, section 13(2) provided that section 11(1) did not limit or affect the application of the Bill of Rights and section 13(3) provided that nothing in the Act prevented the filing, hearing or determination of any legal proceedings in respect of the making or terms of any section 11 order. This meant courts expressly retained their inherent supervisory jurisdiction to rule that the exercise of a statutory power, seemingly conferred by section 11(1), could be invalid if it was not ‘demonstrably justified in a free and democratic society’.

The CPHRA had built-in Parliament scrutiny of any Orders made under the Act with section 16 of the Act providing that a COVID-19 order was revoked if not approved by the House of Representatives within the longer of 10 sitting days of Parliament or 60 days after the Order was made.

Courts expressly retained their inherent supervisory jurisdiction to rule that the exercise of a statutory power, seemingly conferred by section 11(1), could be invalid if it was not ‘demonstrably justified in a free and democratic society’.

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ⁱ All three Acts are still in effect at the time of writing, although some provisions were repealed or amended during and after the pandemic.

ⁱⁱ It is beyond the scope of this report, and unnecessary, to traverse the various amendments made during this period except to record that some significant amendments were made in this period including in 1988 and 1993.

ⁱⁱⁱ Some initial measures – such as quarantine of incoming travellers – were initially activated via ministerial authorisation. The first was used to legally require passengers who had been onboard a flight from Wuhan on 5 February to quarantine for 14 days on arrival in Auckland. Subsequent orders were made under an epidemic notice. On 30 January 2020 an Order in Council was made to add ‘Novel coronavirus capable of causing severe respiratory illness’ but it was in March 2020 that an Order was added specifically for COVID-19.

^iv Under section 71 of the Health Act 1956, a medical officer of health has powers to requisition premises, land or vehicles, including for the purpose of disposing of bodies, which can only be exercised for managing an outbreak.

^v The Middle East respiratory syndrome (MERS) epidemic is not mentioned in the Parliamentary debates, despite a Ministry warning about MERS being issued in 2015, while the Bill was still before Parliament. However the Ebola virus outbreak in West Africa, an issue in the media at the time, was mentioned in a number of first reading speeches in November 2014.

^vi For a more in-depth discussion of the history of civil defence in New Zealand see: https://www.civildefence.govt.nz/assets/Uploads/publications/Short-History-of-Civil-Defence.pdf. Evident from this historical analysis is that civil defence was not originally conceived as a form of protection in relation to public health, in general, or epidemics/pandemics in particular.

^vii There is, of course, an inevitable overlap between emergencies that engage civil defence arrangements and those that engage public health arrangements. Both can involve large numbers of people requiring medical and/or hospital treatment. The overlap can be observed in various amendments made to s 71 of the Health Act 1956 over the years: the power to requisition property for medical and hospital purposes might arise from civil defence emergencies or from medical emergencies or both.

^viii A similar amendment was made to section 71 of the Health Act 1956.

^ix For more on the ‘4 Rs’ approach to emergency management, see the Schedule to the National Civil Defence Emergency Management Plan Order 2015, especially section 2.

^x This is reflected in some of the speeches in the House of Representatives during the passage of the legislation. For example, National MP Brian Connell said: ‘The Law Reform (Epidemic Preparedness) Bill is complex legislation, and it has been quite difficult for colleagues to navigate their way through the bill to put in place something that is meaningful and pragmatic. I say it is complex legislation because it is part crystal-ball gazing – what if scenario planning – and part pragmatism and plain old common sense’.

^xi For an analysis of the Epidemic Preparedness Act, see the Court of Appeal’s judgment in Idea Services Ltd v Attorney-General [2022] NZCA 470, @ justice.govt.nz/courts/decisions/jdo/).

^xii Commonly referred to as a Henry VIII clause – for discussion of this type of clause see the Court of Appeal’s judgment in Idea Services Ltd v Attorney-General [2022-NZCA 470 @ justice.govt.nz/courts/decisions/jdo/) and High Court [2022-NZHC-308.pdf (courtsofnz.govt.nz)].

^xiii The triggers for such provisions were generally a state of emergency, an epidemic notice, or the authorisation of the relevant minister or the Prime Minister.

^xiv An order can only be made if either an epidemic notice is in force for COVID–19, a state of emergency in respect of COVID–19 is in force (or a subsequent transition period); or the Prime Minister has authorised the use of COVID–19 orders (if satisfied there is a risk of an outbreak or spread of COVID–19). In addition, the minister must have regard to advice from the Director-General of Health and may have regard to any decision by the Government; be satisfied that the order does not limit, or is a justified limit, on the New Zealand Bill of Rights Act 1990 rights and freedoms; and that the order is appropriate to achieve the purpose of the Act; and consult the Prime Minister, Minister of Justice, Minister of Health (and may consult any other minister) before making the order.

^xv The Director-General could only make orders that applied to a single territorial authority district and were, in the Director-General’s opinion, ‘urgently needed to prevent or contain the outbreak or spread’ and were the most appropriate way of addressing those matters (section 10).