Photo: Getty Images
Photo: Getty Images

PoliticsMarch 22, 2020

The government is giving new orders. What is the legal basis for them?

Photo: Getty Images
Photo: Getty Images

Sweeping new restrictions on travel and assembly are being rolled out, with more likely. Andrew Geddis details the laws which allow the government to impose them.

Covid-19 has plunged Aotearoa New Zealand (indeed, the world) into territory that, while not totally unprecedented, certainly hasn’t been seen during the lifetimes of most of us here today. Our borders are closed to non-citizens, we’re being told not to gather in groups of more than 500 outside or 100 inside, asked not to travel in our own country, to work from home if we can, while those over 70 are advised to effectively take themselves out of society.

Much of this messaging from the government is phrased in terms of people doing the right thing now to avoid creating a worse future. And most of us, I suspect, will try and comply with what is asked of us because we want the same thing. For example, my family had planned to travel through to Central Otago on Sunday to visit my (over 70-year-old) mum. That’s not happening anymore.

But the government also has made it clear that some of what they are saying is non-negotiable. For instance, when announcing that indoor gatherings should be kept below 100, the health minister David Clark held out the threat of jail time and fines for anyone who didn’t voluntarily play ball. And after bishop Brian Tamaki thundered that Destiny Church would carry on meeting regardless, the director general of health calmly noted that “the government does have powers to enforce the 100 maximum on gatherings. So if needs be, those powers will be used.”

What, then, underpins these assertions of governmental power? What turns their “it’s best if we all do this” message into a “you must do this, or else!” message? The answer lies in a number of pieces of legislation.

The Immigration Act 2009

As an island nation, we’ve sometimes cursed the tyranny of distance that separates us from bigger and more populous places. In a Covid-19 world, that isolation transforms into a real asset. The physical difficulty in getting here makes it much easier to control our borders, and keeping the virus out of the country limits the measures otherwise needed to control its spread.

Under the Immigration Act 2009, everyone who is not a New Zealand citizen requires a visa to enter and remain in New Zealand. The minister of immigration then can issue ‘immigration instructions’ to the officials whose job it is to grant visas to those wanting to enter New Zealand. And those instructions may relate to matters such as health.

Meaning that the minister first was able to instruct officials to only issue visas subject to certain conditions, such as a requirement to self-isolate for the first 14 days of a person’s stay in the country. And then, as the Covid-19 health risk worsened, he could instruct officials not to issue any more visas at all. Which in turn means that non-New Zealand citizens without a visa cannot lawfully enter the country.

That action in itself stops most non-citizens being able to get on planes to fly here; commercial carriers won’t board a passenger they know isn’t allowed entry to the country. And if any non-citizen does try to get in (by, for instance, flying here on a private jet), they can be denied entry and immediately deported.

But note who this exercise of power doesn’t apply to: New Zealand citizens, permanent residents, residents with valid travel conditions and their immediate family. The minister can’t ever deny entry to New Zealand citizens. And people holding resident visas also have a right of entry that can’t be removed except on certain prescribed grounds (which don’t include “maybe being infected with a disease”). And as for the immediate families of such people… well, we simply haven’t so lost our sense of humanity that we’re going to lock them out of our country.

The Health Act 1956

While keeping as many cases of Covid-19 out of the country as possible is key, the virus is present here. Limiting community transmission then becomes crucial. Hence the various alert practices announced yesterday.

Underpinning many of these practices are the powers conferred on public health officials under the Health Act 1956. Note when this legislation was created; the midst of New Zealand’s statist era when central government authority reached its apex. Only five years earlier the National government had responded to industrial action on the nation’s wharves by imposing rigid censorship, giving police sweeping powers of search and arrest and making it an offence for citizens to assist strikers. Unsurprisingly, therefore, this legislation is not sparing in what it allows public officials to do in order to achieve their ends.

Basically, Covid-19 has been designated a “quarantinable disease” under the Health Act. With that designation in place, it then gives “medical officers of health” (who are public health officials appointed by the director general of health, Dr Ashley Bloomfield) very broad special powers to combat the virus.

These powers include, for instance, “requir[ing] persons… to be isolated, quarantined, or disinfected”. Meaning that anyone returning from overseas, or close contacts of those who test positive to the virus, who will not voluntarily self-isolate for 14 days can be forced to do so. And medical officers of health also can order any premises to shut. So, if the Destiny Church tries to defy the announced prevention measures by holding a service with more than 100 people, their building can be closed up.

Why does anyone then have to do what these medical officers of health say? Because, the police are authorised to do any thing reasonably necessary (including the use of force) to make them do so. And not doing what they tell you to is an offence, for which you can be arrested, prosecuted, fined and (maybe) imprisoned.

Furthermore, should New Zealand’s Covid-19 alert level shift from two to three (or even four), the Health Act’s powers will also underpin this new response. All premises in an area (other than private homes) can be closed. Travel can be forbidden (at least, to anyone who hasn’t been tested and found free of Covid-19). For which we can thank our forebears and the lessons they learned from depression and war about the need for collective action.

Civil Defence Emergency Management Act 2002

But perhaps if Covid-19 spreads through the community, the Health Act’s powers will not be enough on their own. What further steps might lie in the wings, should the alert level move up to three or four?

Under the Civil Defence Emergency Management Act 2002, the minister of civil defence (but in reality, cabinet) can declare a state of national emergency. Such a declaration then would trigger New Zealand’s National Civil Defence Management Plan, which lays out the role of various agencies in responding to the emergency situation.

In addition, declaring a state of national emergency unlocks a whole suite of additional powers for civil defence controllers and the police (to be used on the advice of public health officials). They can completely shut down roads and public places to everyone. They can requisition property (including your hoarded toilet paper!). And they can direct people to stop doing anything that is contributing to the emergency.

Epidemic Preparedness Act 2006

But maybe all of this still isn’t enough. Maybe the powers already given by Parliament don’t quite cover the health challenges that Covid-19 (as a quarantinable disease) poses. Or, maybe that existing legislation places roadblocks in the way of health officials that are hampering their ability to combat it effectively.

If that is the case, the prime minister can issue an “epidemic notice” that enables the use of special powers under the Epidemic Preparedness Act 2006. These powers then allow for the amendment of primary legislation by the executive branch in order “to enable the effective management of serious outbreaks of disease.” In other words, Parliament and its usual law making processes can be by-passed in favour of making any swift legislative changes needed in the face of Covid-19’s spread and treatment.

We’ve got the hammers – should we be hitting more nails?

As such, there’s a pretty well stocked legal toolshed to work on a fix for the threat posed by this virus. Are these various powers then being used appropriately? Well, the fact that there are public health experts calling for more draconian actions to be taken more quickly makes me think that the government certainly isn’t overusing them at the moment. But by the same token, the efficacy of legal powers ultimately rests on large-scale community buy-in. There can’t be a police officer on every street to force people to do what they are ordered to. Ultimately, therefore, the response to Covid-19 isn’t just a medical or legal one. It’s also a political one, involving judgments about what is possible in the current conditions.

Keep going!