8.2 What happened: testing, contact tracing, and masking requirement­s I aha: ngā whakaritenga whakamātautau, whaiwhai i te pātanga, me te mau ārai kanohi

During an infectious disease outbreak, testing, contact tracing, and the use of masks in high-risk environments are useful public health tools that can often be deployed – depending on the specific nature of the pathogen – to help reduce the spread of infection. In the case of the COVID-19 pandemic, all three were important components of the response that contributed to the overall success of the elimination strategy.

Throughout much of 2020 and 2021, testing at the border (together with mandatory quarantine of overseas arrivals) reduced the risk of new COVID-19 cases entering Aotearoa New Zealand; routine testing of wastewater and of people in the community at higher risk of infection provided assurance that the virus had not entered the country; rapid contact tracing of confirmed cases stopped potential chains of transmission from taking hold; and mask wearing in public spaces made it less likely that any undetected cases would result in an outbreak. For each of these measures to be effective at providing population-level protection, they needed to be taken up on a large scale.

Encouraging widespread uptake was therefore very important. This was largely achieved via effective public messaging encouraging people to voluntarily take up these measures, both from official channels via the ‘Unite Against COVID-19’ campaign, and within communities to their own members (see Chapter 2 on public communications).

At certain points though, for each of these measures, the Government determined that an extra ‘push’ was required to achieve uptake of the encouraged behaviour (none of which was common or established practice in Aotearoa New Zealand prior to the pandemic) at the scale required for them to be effective. They were therefore each – at different times, and for different groups – made compulsory under certain circumstances.

For each of these measures to be effective at providing population-level protection, they needed to be taken up on a large scale.

8.2.1 Testing requirements

The overall role of testing during the COVID-19 response – including the types of tests used, procurement matters, and laboratory capacity to process results – have already been discussed in Chapter 5. Here, we focus on how testing was made compulsory for some groups of people, which began from mid-2020.

Mandatory testing – primarily regulated via the COVID-19 Public Health Response (Required Testing) Order 2020, which first came into force from 30 August 2020⁴ – was seen as a key control measure in the broader COVID-19 Surveillance Strategy. Such testing was intended to detect and isolate any cases of COVID-19 infection to prevent further seeding of transmission in the community.

8.2.1.1 Overseas arrivals

As outlined in Chapter 4, ‘closing’ Aotearoa New Zealand’s borders, testing travellers and border workers for COVID-19, and requiring all international arrivals to quarantine were important components of New Zealand’s COVID-19 response and elimination strategy. Compulsory testing at the border began early in the pandemic. From April 2020, it was required of all international arrivals under section 70 of the Health Act 1956.⁵ Once the COVID-19 Public Health Response Act was in place, bespoke Air and Maritime Border orders were enacted requiring compulsory testing of anyone arriving in the country by air or sea.⁶

Air arrivals

From June 2020, anyone entering the country by air had to test on arrival and to undergo further testing during a 14-day quarantine period.⁷ From early 2021, an additional requirement was added for travellers from the United Kingdom and the United States to undergo a pre-departure test.⁸ From March 2022, when managed isolation and quarantine (MIQ) requirements began to be lifted, post-arrival testing remained compulsory. All incoming travellers were required to undergo a rapid antigen test (RAT) on the first/second and fifth/sixth day after arrival and report the results online. Any positive RAT results had to be followed up with a PCR test.⁹

Maritime arrivals

With 99 percent of Aotearoa New Zealand’s trade transported by sea,ⁱⁱⁱ continuing safe maritime operations during the pandemic was seen as very important.The Maritime Border Order restricted which vessels could arrive in Aotearoa New Zealand and established isolation, quarantine and testing requirements for anyone arriving by sea, disembarking temporarily, or transferring between ships.¹⁰ Existing requirements for vessels arriving in Aotearoa New Zealand to provide health declarations were extended to include pre-departure testing of people on board and reporting of any symptomatic or confirmed COVID-19 cases.

8.2.1.2 Border workers

During the pandemic, the New Zealand Customs Service estimates that approximately 20,000 people were working at Aotearoa New Zealand’s air and sea borders, and a further 4,500 at managed isolation and quarantine facilities.¹¹ These workers routinely encountered people arriving in from countries where COVID-19 was circulating widely. They were therefore considered a potential vector by which the virus could enter the community. To reduce the risk of this happening, a majority of these ‘border workers’^iv were required to undergo routine COVID-19 testing (as well as regular symptom checks) as a condition of their work between late August 2020 and late June 2022.¹²

Initially, this mandatory testing was targeted at workers considered to be at ‘high risk’ at Auckland International Airport, the ports of Auckland and Tauranga, and in MIQ facilities. These workers were all required to have weekly nasal or oral swab tests, temperature tests and other symptom checks. Later, mandatory testing was extended to all border workers.

The initial testing order placed primary responsibility on the worker to be tested.¹³ In November 2020 this was amended to place responsibility on the owners/managers of border-related businesses or organisations (known as ‘persons conducting a business or undertaking’) to ensure their workers were regularly tested.¹⁴ These people were expected to identify workers subject to the order, notify them, ensure they were able to meet their testing requirements within working hours, and keep records of the test results.

The Ministry of Health developed an online tool called the Border Workforce Testing Register to help the responsible parties meet their record-keeping requirements. The system matched workforce data (from business owners/managers) with National Health Identifier numbers, allowing the Ministry to check that the required testing had been completed and reported. The register went live in November 2020,¹⁵ sending automated text reminders about upcoming and overdue tests.

In response to some ministerial concerns about compliance with the order, a Monitoring and Compliance Framework was introduced in May 2021 to help give assurance that workers were being tested regularly in accordance with the order.¹⁶ While the online register supported this assurance function, it had initial limitations which frustrated some businesses and organisations – including delays in recording of test results, the need to manually resolve cases of duplicate identification numbers, and some business owners/managers being unable to make changes to the system.¹⁷ A review of border testing arrangements in December 2021 noted that these issues improved over time as the systems matured.¹⁸

8.2.1.3 Health workers

After community transmission of COVID-19 became established in August 2021, the risk of health workers being exposed to the virus substantially increased. While hospitals and other healthcare settings had been following strict infection control procedures since early in the pandemic (see Chapter 5), the near absence of community transmission had meant the actual risk of health workers contracting and spreading the virus was very low. But with the virus now circulating in the community, health workers were much more likely to encounter positive cases in the course of their work. Health workers were therefore made subject to the same testing, symptom checks and record-keeping requirements as border workers. These requirements remained in place until the Required Testing order was revoked on 30 June 2022.¹⁹

8.2.1.4 People crossing regional boundaries

The first regional lockdown occurred in August 2020 when community transmission was detected in Auckland. Auckland was put into Alert Level 3 lockdown while the rest of the country was moved to Alert Level 2. This created a regional boundary for the first time, but this lockdown was of such a short duration that the issue of mandating testing for people crossing the regional boundary did not arise.

The story was different a year later, however, during the Delta outbreak. Auckland spent several months in a regional lockdown from August 2021, while other regions had several shorter localised lockdowns; these necessitated processes to manage boundary crossings. Public health officials thereby hoped to prevent Delta from spreading beyond Auckland (then at Alert Level 4) and the other affected regions into the rest of Aotearoa New Zealand (then at Alert Level 2).²⁰

To this end, mandatory testing was introduced for workers crossing regional boundaries in September 2021. People crossing boundaries for personal travel were also required to provide evidence of testing (a saliva test within the last seven days), where practicable.²¹ The boundary testing requirement was modified in December 2021 to require evidence of either vaccination or a negative test, before being lifted in early 2022.

All COVID-19 testing requirements were lifted from 30 June 2022.²²

8.2.2 Contact tracing requirements

During an infectious disease outbreak, ‘contact tracing’ is the process of identifying and notifying people who may have been in contact with an infected person. The aim is twofold. First, contact tracing aims to identify anyone else who has been infected so they can be offered treatment and advice; and second, to locate people who have been exposed to the disease and may be incubating infection, so that they can isolate (technically quarantine) and thus prevent further onward transmission of infection.²³

The broader role of contact tracing in the pandemic response is addressed in Chapter 5. Here we focus on the aspects of contact tracing that were mandatory during Aotearoa New Zealand’s COVID-19 response. There were two categories:

• pre-existing requirements (under the Health Act 1956) for people to provide information for public health contact-tracing purposes, and
• new requirements introduced during the COVID-19 pandemic for people to register attendance at various locations, and for business owners to collect customer information and display QR codes.

8.2.2.1 Pre-existing contact-tracing requirements

Prior to the COVID-19 pandemic, it was already compulsory for people to supply information for contact tracing in certain situations. These requirements are set out in the Health Act 1956 (Part 3A, subpart 5).²⁴ The purpose is to protect the population from the spread of notifiable diseases by empowering public health officers to collect information from people who have been in close contact with someone known to be infected. If an authorised contact tracer^v deems it necessary, they may require someone diagnosed with a notifiable disease to provide information about what they have been doing and who they have been in contact with (including personal information and contact details). If appropriate, they may also go around the person in question to obtain information directly from their employer or an event organiser. Failure to comply with a contact-tracing request or provision of false information can result in a fine of up to $2,000.

There are some caveats around how contact tracing can be done, including obligations on contact tracers to provide reasons, take account of someone’s ability to comply, and deal with the parents or legal guardians of people under 16. Under the Privacy Act,²⁵ contact tracers also have a duty of confidentiality not to disclose the names of people who may have been a vector of transmission, and not to use the information gathered for any other purpose than for public health.

Since COVID-19 was made a notifiable disease in late January 2020, the above requirements for members of the public to comply with contact-tracing requests applied throughout the pandemic response.²⁶

8.2.2.2 COVID-19-specific requirements

The methods and systems used for contact tracing evolved considerably during the COVID-19 pandemic. ‘Manual’ contact tracing (that is, direct questioning of people diagnosed with COVID-19 and their identified contacts) remained the key approach throughout the pandemic. It was supplemented by other methods, however, including publication of ‘sites of interest’ and the development of digital tools.

Additional requirements to support contact tracing for COVID-19 were enacted under the COVID-19 Public Health Response Act 2020, which created an order-making power to require people to ‘provide, in specified circumstances or in any specified way, any information necessary for the purpose of contact tracing’.²⁷ Such orders were used to make it mandatory for businesses, event organisers and public transport operators to display QR codes (for contact-tracing purposes), and for businesses and event-organisers to ensure records were kept of people who had attended their premises.

Displaying a QR code

The NZ COVID Tracer smartphone app was initially developed as a voluntary contact-tracing measure (see section 5.3.2.1 in Chapter 5). In August 2020, with Auckland back in lockdown, the COVID-19 Public Health Response (Alert Levels 3 and 2) Order 2020 made it compulsory for businesses to display QR codes at Alert Level 2 or higher.²⁸ Later that same month the COVID-19 Public Health Response (Alert Level Requirements) Order 2020 extended this requirement to all levels.²⁹ In September 2020, it was also made compulsory for all public transport vehicles to display QR codes.³⁰

Compulsory scanning?

In 2021, the Government was seeking ways to strengthen the available tools for contact tracing. Consideration was given to making it mandatory for members of the public to record their presence at indoor public and business locations using the NZ COVID Tracer app or other means (paper records).

A briefing from senior officials indicates the Government initially favoured a ‘dual obligation’ system where both businesses and individuals attending them would be required to ensure their presence there was recorded.³¹ However the Privacy Commissioner – when consulted about the possible measures – had indicated he had ‘significant concerns’ about the privacy impacts of mandating record-keeping for contact-tracing purposes.

Officials subsequently advised ministers that an obligation on individuals ‘would create significant privacy, compliance monitoring and enforcement issues’.³² Cabinet therefore chose to locate responsibility for record-keeping with business owners and event organisers, but not with individual members of the public.³³ In presenting advice on these options, officials were aware that ministers would need to consider the benefits of making record-keeping mandatory against any perceived encroachment on people’s right to privacy and any potential risk to the maintenance of social licence for the COVID-19 response overall.³⁴

While Cabinet responded to the Privacy Commissioner’s concerns by not requiring individuals to scan into premises or otherwise record their presence, this distinction may not have been well understood by members of the public. There was also very limited capacity to enforce record-keeping requirements on the part of business owners and event organisers (see section 8.3.2.2). Again, it is unlikely that most members of the public were aware of this, feeding a perception by some that scanning-in or recording their details was ‘compulsory’ at this time.

Paper-based records

As well as displaying a QR code, businesses and organisers of events where people gathered in close-confined settings were now required to actively keep records of attendees for contact-tracing purposes. Such businesses included indoor public and event facilities, aged care and health facilities (for visitors), exercise facilities, hairdressers, hospitality venues and social gatherings (including weddings, funerals, faith-based services and gatherings held at marae, but not at private residences).³⁵

8.2.2.3 Lifting of requirements

The first case of the Omicron variant was detected at the Aotearoa New Zealand border in December 2021,³⁶ and the first community transmission of Omicron was reported on 18 January 2022.³⁷ Omicron was more infectious than previous strains, and by December 2021, international evidence was starting to emerge that vaccines were less effective at preventing its spread (see also section 8.4.5).³⁸ With this evolving situation came the realisation that Aotearoa New Zealand’s ‘opening up’ might not involve stamping out a series of localised outbreaks as anticipated in late 2021, but rather a large wave of infection across the whole country. Indeed, that is what occurred. By early February 2022, case numbers had surged into the hundreds, and by March 2022 there were thousands of new cases every day.³⁹ Omicron was now firmly established as the dominant COVID-19 variant circulating in New Zealand.

This had many implications. One was that the intensive approach of actively tracing the contacts of all cases was no longer feasible: Aotearoa New Zealand’s contact-tracing capacity, despite having recently been significantly expanded, would quickly be overwhelmed. Over the first quarter of 2022, the approach therefore shifted to a more ‘hands-off’ model in which people who had tested positive for the virus were encouraged to alert potential contacts themselves.⁴⁰ From 4 April 2022, all requirements to keep records of attendance or display QR codes were lifted.⁴¹ The NZ COVID Tracer app was eventually removed from smartphone app stores in August 2023.

8.2.3 Mask requirements

It took some time for a scientific consensus to emerge and for consistent guidance to be issued from the World Health Organization about the effectiveness of masks at reducing the spread of COVID-19 (see Chapter 5). Mask mandates therefore did not feature prominently in the early stages of Aotearoa New Zealand’s pandemic response.^vi

By August 2020, however, it was well-established that COVID-19 was spread by airborne particles, and that mask wearing was an effective tool for reducing its spread. That month, Cabinet considered advice from the Ministry of Health to include mandatory mask wearing in the response to the next outbreak. Masks were subsequently required for all passengers on public transport and domestic air travel at Alert Level 2 and above.⁴²

Mask requirements were expanded in the second half of 2021 in response to the Delta outbreak. Mask wearing was required for a wide range of indoor settings at Alert Level 2 or above.⁴³ Although businesses were never legally tasked with enforcing mask wearing on their premises, many chose voluntarily to make mask wearing a condition of entry as a way of supporting the public health response and protecting their staff and customers.

8.2.3.1 Mask requirements under the COVID-19 Protection Framework

Under the COVID-19 Protection Framework or ‘traffic light’ system (in place from December 2021), mask requirements varied at the different levels.

• At ‘Red’, masks were required for everyone at most indoor places including flights, public transport, at retail, events, schools (years 4 to 13), tertiary education, close-proximity businesses, food and drink businesses (except when eating or drinking), and in public facilities.⁴⁴
• At ‘Orange’, masks were required in many indoor locations including on flights, public transport, retail, public facilities and for workers at gatherings, events, and other hospitality businesses including cafes and restaurants.⁴⁵
• At ‘Green’, masks were not required except on flights. However, masks were encouraged indoors along with maintaining healthy habits such as handwashing and staying at home when sick to keep whānau and others protected.⁴⁶

The entire country was at ‘Red’ from 23 January 2022 until 13 April 2022, and then at ‘Orange’ until 12 September 2022.⁴⁷

8.2.3.2 Mask exemptions

Some people could not wear facemasks for reasons of physical or mental impairment or illness. This was recognised in the orders mandating their use, which allowed anyone who had a physical or mental illness or disability that made wearing a face covering unsuitable to be exempt from the requirement to do so.⁴⁸ The Government implemented a facemask exemption scheme in late 2020, which was coordinated by disability providers.

On 31 May 2022, the Government launched a new process for providing evidence of a person’s facemask exempt status.⁴⁹ This involved the person making an online self-declaration that they met one or more of the criteria for exemption. The downloadable digital exemption card was personalised so that it could not be used by someone other than the person to whom it was issued, and the corresponding COVID-19 Order made it a requirement for businesses to accept these exemption cards.

By August 2022, there were 45,363 people with facemask exemptions.

8.2.3.3 Lifting of requirements

By August 2022, there were 45,363 people with facemask exemptions.

On 12 September 2022, the Government retired the COVID-19 Protection Framework, removing most facemask requirements.⁵⁰ However, many people remained vulnerable to severe impacts of a COVID-19 infection. Accordingly, facemask requirements were retained for healthcare settings, including for in-home and disability support and aged residential care. These were eventually revoked on 15 August 2023.⁵¹