Forced into a bubble – the law behind lockdown

In 2006 the threat of a human outbreak of avian influenza or ‘bird flu’ prompted the introduction of the Epidemic Preparedness Act 2006 and a raft of other amendments to existing legislation, most notably, the Health Act 1956. These amendments were to ensure that, should there be an outbreak of an infectious disease capable of becoming an epidemic, the Government would have the necessary powers to ensure a proper response could be made.

The threat from COVID-19 triggered these powers and at 11:59pm on 25 March, New Zealand entered alert level 4 – lockdown.

Implementation of alert level 4 relied on a collection of powers and authorisations under the Epidemic Preparedness Act 2006 (EP Act), Health Act 1956 (Health Act) and Civil Defence Emergency Management Act 2002 (CDEMA). We note here that the alert levels are not legislative instruments, they merely assist the public to understand the public health measures required to respond to the level of risk posed by COVID-19.

In order to activate these powers and authorisations, an epidemic notice under section 5 of the EP Act was issued – The Epidemic Preparedness (COVID-19) Notice 2020.  An epidemic notice can only be issued by the Prime Minister, (with the agreement of Minister of Health and on the written recommendation of the Director-General of Health), if the Prime Minister is satisfied that an outbreak of a quarantinable disease (as defined in the Health Act), is “likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand (or parts of New Zealand) significantly”. The Health Act had been amended on 9 March to add COVID-19 to both the lists of infectious diseases and quarantinable diseases.

The epidemic notice came into force on 25 March and, amongst other things, had the effect of activating special powers available to a medical officer of health under section 70 of the Health Act. Orders under section 70 were the primary authority for enforcement of alert level 4 measures (in conjunction with the additional enforcement powers available under CDEMA, once a state of national emergency was declared).

The powers under section 70 are extensive and include the ability for a medical officer of health to require:

  • Persons, ships, and aircrafts to be isolated or quarantined (section 70(1)(f)); and
  • All premises of any kind or description to be closed and forbid people from congregating in outdoor places of any kind or description, either for a fixed duration or if prescribed infection control measures are not operating (section 70(1)(m)). An order made under this sub-section does not apply to private dwellings, courts or prisons and can “exempt people engaged in necessary work”.

The Section 70(1)(m) Health Act Order issued on 25 March closed all premises within New Zealand other than those premises “necessary for the performance or delivery of essential businesses” and prohibited mass gatherings. The order did not apply to private dwellings, courts or prisons. Essential businesses were defined as those “essential to the provision of the necessities of life and those businesses that support them as described on the Essential Services list on the internet site maintained by the New Zealand government.”

An order clarifying isolation requirements was issued later, on 3 April. The Section 70(1)(f) Health Act Order required all persons within New Zealand to be isolated or quarantined at their current place of residence unless they were undertaking “essential personal movement”. Essential personal movement included going to the supermarket, undertaking recreation readily accessed from your residence, “shared bubble” arrangements and movement for the purpose of providing an essential business.

Further orders have also been made under section 70 relating to the medical examination, testing, isolation and quarantine of persons arriving in New Zealand by air.

Implementation of alert level 3 relies on the same collection of powers and authorisations as alert level 4, however, a more detailed order under section 70(1)(f) and (m) of the Health Act came into force at 11:59pm on 27 April (the Health Act (COVID-19 Alert Level 3) Order 2020).

It is likely that the implementation of alert level 2, when it arrives, may also be dealt with by way of a section 70 order, however, specific COVID-19 legislation may also be required to support some measures.

The epidemic notice has effect until 24 June, unless an earlier expiry date is notified. The Director-General of Health is under an obligation to continuously review the position and the Prime Minister must promptly revoke the epidemic notice if the threshold for making the order is no longer met.

It is obvious that the measures imposed under the section 70 orders for alert levels 3 and 4 place significant restrictions on our fundamental rights, in particular, the rights to movement, association and assembly protected by the New Zealand Bill of Rights Act 1990 (BORA). Limits on these rights and freedoms are permissible under the BORA, but only to the extent they are reasonable and demonstrably justified. The section 70 powers were considered at the time the Health Act was amended in 2006 and it was concluded that the highly infectious nature of the diseases in question meant that the limits placed on human rights by the exercise of these powers was justified. The Attorney General has also recently reviewed the alert level 3 section 70 order and considers it a proportionate and lawful response, when balanced against the public health risk posed by COVID-19.

The legality of the lockdown has been topical among lawyers and of course, the media, over recent weeks. Some hold the view that the legal basis of the lockdown (or at least parts of it) is tenuous. If you are interested in the legality of the lockdown, a recent article by two New Zealand university professors makes some valid points (and given the comments made by the President of the Court of Appeal last week in a case concerning the lockdown and unlawful detention, judicial review proceedings in the High Court may not be far away.

Business Law team

Gerard DaleClaire EvansGraeme CrombieEvelyn JonesAnna RyanJoelle GracePeter OrpinEllen SewellMatt TolanCarlo WanKristina SutherlandJacob NuttWhitney MooreAlex StoneBen CooperLisa Catto

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