8.1 Mandatory measures Ngā whakaritenga whakature

Introduction | Kupu whakataki

Each of the chapters so far in this ‘looking back’ section of our report has covered a key element of the COVID-19 response in Aotearoa New Zealand: strategy and decision-making, the use of lockdowns, border restrictions and quarantine, economic and social supports, the health response, and the vaccine rollout. In each of these areas, the Government took extraordinary steps. Requiring everyone to stay at home, spending unprecedented amounts on wage subsidies, quarantining new arrivals in hotels, rapidly rolling out a new vaccine to the entire population: all of these would have seemed unthinkable prior to the pandemic.

For many people, the most unsettling of the extraordinary steps taken in response to COVID-19 were those that restricted people’s freedoms (including their freedom of movement and ability to congregate) or strongly directed them to undergo testing and vaccination. We have already discussed several mandatory measures that formed a key part of Aotearoa New Zealand’s COVID-19 response, including the use of lockdowns (in Chapter 3) and border and quarantine restrictions (in Chapter 4). In this one we consider the use of mandates and orders to make public health measures – testing, contact tracing, mask wearing and vaccination – compulsory under certain circumstances.ⁱ

In considering whether to make certain measures mandatory, ministers (and their advisors) had to weigh up the need to protect the public from the worst impacts of the virus (especially vulnerable population groups), the available evidence about whether each measure would be effective at doing so, and the fundamental importance of upholding individual freedoms and rights. These were not easy decisions. In relation to each of these measures, at some point in the pandemic, ministers judged that the additional protection offered by making them compulsory under certain circumstances justified the temporary curtailment of individual freedoms. They also empowered others to make similar judgements in certain contexts, for example by enabling employers to set workplace-specific vaccine requirements. Many governments around the world reached similar conclusions.

It was clear from our public submissions that the rules and mandates promulgated during COVID-19 (particularly vaccination requirements) were among the most controversial aspects of the pandemic experience, and prompted a strong response from many people. While many opposed the imposition of masking and vaccine requirements, others were in favour of what they saw as necessary measures to protect public health and safety, particularly in workplaces. Many public submitters expressed concern about the long-term impact this period may have had on social cohesion, trust and community solidarity in Aotearoa New Zealand.

In Aotearoa New Zealand – as in many other countries – resistance to mandatory COVID-19 measures dovetailed with broader anti-vaccine and anti-government sentiments, prompted in part by rising levels of misinformation and disinformation and the proliferation of COVID-19 related conspiracy theories on social media.¹ These distinct but overlapping groupings culminated in the 28-day occupation of Parliament grounds in early 2022ⁱⁱ – the most significant instance of civil unrest in New Zealand since the 1981 Springbok tour.

These are important issues for an inquiry like ours focused on future pandemic preparedness. There is sound evidence that during a pandemic, high levels of social cohesion support greater social licence for action, effective community-led responses, and are associated with lower infection and death rates. Indeed, Aotearoa New Zealand’s relatively strong levels of social cohesion and trust prior to the COVID-19 pandemic have been cited as a key factor in the success of the elimination strategy.²

However, pandemics (and some of the measures taken in response to them) can damage and erode social cohesion and trust. Having just weathered one, Aotearoa New Zealand (and many other countries) would start from a different place if another pandemic broke out next week – an observation also made by the Australian COVID-19 Inquiry.³ Fostering trust and cohesion will therefore be an important part of future pandemic preparedness, as will thinking ahead about how to balance the use of ‘compulsion’ to protect public health against the need to uphold individual rights and avoid marginalising people. Understanding the role of mandatory measures during COVID-19, and why they proved controversial, is a good place to start. There is much to learn.

Pandemic responses are more effective where there is high social cohesion.

ⁱ To compel someone is to oblige, force, or irresistibly urge them to do something; a mandate is a judicial or legal command issued by a superior or ordered by a legislative body. In common usage, terms like ‘mandatory’ and ‘compulsory’ are often used interchangeably to describe something that somebody has to do, whether because it is a legal requirement, or because there is no alternative. In the context of the COVID-19 response in Aotearoa New Zealand, the term ‘mandate’ was used to describe a range of public health measures that people were obliged to undertake under certain circumstances, including testing, contact tracing, mask wearing, vaccination, and showing proof of vaccination before entering a venue. These may not have met the formal definition of ‘compulsion’, since in each case, individuals retained the ability to decline, but the consequences of doing so (such as having their employment terminated or not being able to enter a public space) made some affected individuals feel that they had no meaningful ‘choice’. In this chapter, we tend to use ‘compulsory’ and ‘mandatory’ in line with this common usage, in the same way that we use ‘lockdown’ throughout the report even though it was never an official term. When we are referring to a specific mandate or legal requirement, we make this clear.

ⁱⁱ The Inquiry acknowledges that those at the occupation raised a wide range of issues, not only concerns about the response to COVID-19.