The Health Committee has examined the COVID-19 Public Health Response Amendment Bill (No 2) and recommends by majority that it be passed. We recommend all amendments unanimously.

The COVID-19 Public Health Response Act, which was enacted in May 2020, established a legal framework to support the public health response to COVID-19. The Act allows the Minister for COVID-19 Response, or the Director-General of Health in certain circumstances, to make COVID-19 orders. The orders give effect to the public health response to COVID-19.

The bill aims to enable the public health response to COVID-19 to continue to function in a coordinated and orderly way. It would make amendments to the Act that are informed by the experience of working with the Act since it commenced. The bill seeks to:

• extend the expiry date of the Act by one year, from May 2022 to May 2023

• improve the flexibility for making COVID-19 orders

• strengthen the infringement regime and deter non-compliance with orders

• support the effective management and operation of managed isolation and quarantine facilities (MIQF)

• enable a limited group of enforcement officers to stop vehicles at checkpoints.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We have no issues regarding the legislation’s design to bring to the attention of the House.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor, technical, or consequential amendments.

Proposed new section 11(1)(b) specifies the actions or measures that the Minister or Director-General could require for an MIQF or other place of isolation or quarantine. The actions and measures would need to be for the purpose of managing the movement of people to, from, and within the MIQF or other place of isolation.

We consider that this section, as introduced, is not broad enough to capture the restriction of movement that could be needed in situations where people are self-isolating. We recommend amending section 11(1)(b) so that it would also apply to places of self-isolation. Consequently, we also recommend amending the definition of “room” in clause 5, amended section 5, to also include a place of self-isolation.

We were particularly interested in self-isolation, including the support that is available for people isolating at home and possible avenues for additional support. We also discussed the complaints process for self-isolation and would like to ensure that any process focuses on equity. We would expect a timely response to complaints to help improve services while people are still in isolation. We were advised that the situation is constantly evolving, and, as case numbers increase, agencies will need to work collaboratively with local communities. We understand that the bill would provide a legal framework to work towards this.

Clause 12 would amend section 22 of the Act. Under proposed new section 22(3A), a constable could stop a vehicle at any road block or checkpoint. The checkpoint would need to have been established to enforce or monitor compliance with a COVID-19 order that restricts movement by people with or without a vehicle. Proposed new section 22(5) would also enable an enforcement officer to stop a vehicle for the purpose stated in section 22(3A) if they were acting under the supervision of a constable.

We note that this power, as introduced, would only apply to vehicles. However, the COVID-19 order could restrict the movement of people and vehicles. As a result, a person could leave their vehicle and walk through a checkpoint. Therefore, we recommend amending section 22(3A) and (5) to also enable people to be stopped.

Clause 22 would insert new subpart 3B (sections 32J to 32T) into Part 2 of the Act. It relates to the management of MIQFs and other places of isolation or quarantine.

Proposed new section 32R would enable the chief executive to seize and hold anything that a person in an MIQF possessed or attempted to bring into the MIQF. The item would need to be in breach of the rules made under new section 32Q. We recommend amending section 32R by removing the references to “seize”. Our proposed amendment would make it clearer that the bill does not contain a power to inspect items or search rooms without consent.

Proposed new section 32T would require a person liable for the costs of MIQF under section 32E of the Act to provide their contact details. This provision is intended to support the invoicing of MIQF costs. However, we note that this would not capture situations where employers would be liable for the charges rather than the individual. We recommend amending section 32T(1) to make it clear that the person for whom the charges were payable would need to provide the contact details of the people who would be paying the charges.

Clause 13, which would replace section 26 of the Act, relates to offences. Section 26 retains the offence of intentionally failing to comply with a COVID-19 order. It also retains the provision that it is an infringement offence if a person breached anything specified as an infringement offence in the legislation or a COVID-19 order and extends this provision to also include infringement offences specified in a rule made under section 32Q.³

Clause 23, which would replace section 33, contains the general regulation-making powers. It would enable the Governor-General by Order in Council to make regulations for infringement offences. Infringement fees could not be set at more than $4,000 for an individual or $12,000 for any other person. Fines could not be more than $12,000 for an individual or $15,000 for any other person. New section 33(1)(b) provides that the regulations could prescribe different penalties for different infringement offences or classes of infringement offences.

The Regulations Review Committee acknowledged that the COVID-19 orders contain a large number of infringement offences, which vary significantly in seriousness. However, it was concerned that the shift from the penalty being determined by Parliament to the Governor-General lacks essential safeguards. It considered that this concern could be addressed by requiring the Minister to recommend that the regulation-making power be exercised. The bill should also be amended to describe the matters that the Minister would need to consider before making the recommendation. We recommend amending section 33(1) to require the Minister to recommend that the regulations be made. We also recommend inserting section 33(1A) to specify the matters that the Minister would need to consider before recommending that regulations be made. The matters would be the severity and impact of the breaches, the appropriateness of the penalty for any group likely to be affected, and the penalties for comparable offences in other legislation.

We pointed out the sharp increase in fees and fines for infringement offences. For example, the bill would increase the maximum infringement fee for individuals from $300 to $4,000 and the infringement fine imposed by a court from $1,000 to $12,000. We discussed whether the increases are proportionate, appropriate, and would act as a deterrent for people who repeatedly failed to comply with COVID-19 orders. Our discussions included whether alternatives to fines, such as electronic monitoring, had been considered. We were advised that infringement offences are commonly used throughout the justice sector and that electronic monitoring would not be appropriate for infringement offences. For situations where people repeatedly breached COVID-19 orders, a person could be charged with a criminal offence and would go before the courts. They would be subject to a fine or imprisonment if convicted.

We understand that the process is under way to develop regulations to set an appropriate system for graduated infringement fees. A cross-agency working group is considering a range of matters related to the scheme, including ensuring that the higher penalties are not inequitable. We were advised that the maximum penalties would only apply to a very small proportion of infringement offences. The differentiation between offences would be based on the risk of transmission or spread of COVID-19.

We understand that stakeholders have expressed concern that existing legislation has insufficient protections for data collected for COVID-19 contact tracing purposes. In particular, they are concerned that contact tracing data could be used by:

• the Police, and government agencies with enforcement powers, for the purposes of investigation or enforcement

• organisations in the private sector for marketing purposes

• employers for purposes other than health and safety

• individuals coercively against other individuals.

We note that these concerns could be mitigated by protections in a range of legislation. They include the Privacy Act 2020, the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990, the Search and Surveillance Act 2012, and the Evidence Act 2006. However, we acknowledge that the various powers that exist in general legislation are not readily obvious or able to be enforced.

We recommend amending the bill by inserting clause 25A to include a provision as new section 34A, to clarify the privacy of contact tracing data. Information created or provided by members of the public through QR scans and paper-based forms for contact tracing purposes could only be used for public health purposes and could not be used by any person or organisation for any other purpose.

We also recommend inserting an offence for intentionally failing to comply with section 34A(1). An individual who was convicted would be liable for a prison term not exceeding 6 months or a fine not exceeding $12,000. For any other person, the fine could not exceed $15,000.

Clause 7, new section 11, would empower the Minister and Director-General to make COVID-19 orders for the management of testing consumables (such as reagents and swabs) and laboratories. Under proposed new section 11(1)(d) an order could be made for laboratories that undertake COVID-19 testing to:

• set quality control measures and minimum standards

• require COVID-19 test results to be reported to the Director-General’s public health national testing repository

• manage the supply of testing consumables used by the laboratories.

Proposed new section 11(1)(e) would also empower the Minister and Director-General to make an order to:

• requisition testing consumables from laboratories to use for, and reallocate to, the national public health response

• undertake COVID-19 testing solely for the purposes of the public health response to COVID-19.

Clause 8, new section 11A, provides that laboratories affected by orders made under section 11(1)(e) would be entitled to compensation from the Crown. The compensation would be at market rates for the consumables requisitioned and testing undertaken.

We recognise that the powers under new section 11(1)(e) are very broad, and considered how they might be limited. Some options were amending the bill to require additional scrutiny of an order, and removing the ability for the Director-General to make an order. Other options were narrowing the circumstances in which an order could be made, and imposing a maximum duration on orders.

We received advice that the purpose of the provisions is to ensure necessary tools are available to respond in the event of a significant resurgence of COVID-19 that threatens to overwhelm medical testing. We were also advised that the orders are not expected to be used routinely. We have therefore not recommended any amendments to these sections. However, some of us consider that the powers under this section are unnecessary and are not justified.

Section 20(1) of the Act enables an enforcement officer to enter, without a warrant, any land, building, craft, vehicle, place, or thing. The enforcement officer must have reasonable grounds to believe that a person is failing to comply with any aspect of a COVID-19 order.

Some of us expressed concern that the bill does not amend section 20 of the Act to explicitly exclude marae. However, we understand that several other Acts contain powers to enter private homes without a warrant. Marae are generally not excluded where powers of entry are available over private property. Therefore, we were advised that any decisions about the appropriateness of warrantless powers of entry to marae would need to be considered in the context of other legislation that contains similar powers.

National opposes the COVID-19 Public Health Response Amendment Bill (No 2).

The bill is already out of date. The bill was introduced on 21 September and referred to the Health Committee on 29 September. Since then, in just over a month, the government has already signalled the following significant changes to COVID policy:

• the introduction of a traffic light system (the COVID Protection Framework) for the whole of New Zealand;

• limited changes to MIQ (in the short-term) and the prospect of more fundamental changes (in the medium-term);

• purportedly clearer rules for vaccination mandates for private sector employers; and

• a vaccination certification regime.

It is also worth noting that this bill reflects a world in which New Zealand’s strategic aim with respect to COVID is elimination. Because of the government’s clear failure to plan for Delta, the government has now been forced into a situation in which suppression is now the obvious goal of public policy (even if Ministers will not say so publicly). The bill was written in a world in which elimination was the stated aim of government policy and there was no back-up plan. It was assumed that elimination would work. When it did not, the government was left scrambling, as the rush of announcements summarised above indicates.

National opposes the bill for two major reasons.

First, the bill is predicated on a situation where highly restrictive border settings continue for the foreseeable future. The bill builds on the existing COVID-19 Public Health Response Amendment Act by adding further layers to the MIQ legal regime; when the goal of public policy should now be to dismantle the whole regime as much as possible.

At the time of writing, over 2,200 COVID cases and close contacts were isolating in the Auckland region at home, while fully vaccinated New Zealanders offshore without COVID were forced to endure the MIQ lottery in order to obtain one of a severely limited number of places in MIQ. The evidence suggests the risk that these travellers present to New Zealand is very low and 14 days MIQ is a disproportionate response to the risk they present, as public health experts have noted.

Since August 23, just two fully vaccinated travellers have tested positive for COVID in MIQ on day 8 or later.

National believes that MIQ should be dismantled for fully vaccinated travellers to New Zealand with negative pre-departure tests as a matter of priority. Enforcing MIQ on these travellers no longer makes any sense; and in fact it is callous and unfair.

Second, National strongly objects to clause 7, which allows COVID-19 orders to be made which may require the owner, or person in charge, of a specified laboratory that undertakes COVID-19 testing to deliver or use, in accordance with directions given under the order, specified quantities of COVID-19 testing consumables for the purposes of the public health response to COVID-19, and, undertake COVID-19 testing solely for the public health response to COVID-19.

The lack of widespread use of saliva testing in New Zealand has been a long and drawn out saga that reflects extremely poorly on the Ministry of Health and the Government. It is a national disgrace and there should be an urgent public inquiry on the matter.

The ministry spent much of the first half of this year casting doubt on the accuracy of saliva tests in comparison to nasal PCR tests, even though an existing private provider, Rako Science, had their test diagnostically validated in New Zealand laboratories, and Dr Anne Wyllie’s work was being increasingly recognised in the United States and internationally. Associate Professor Janet Pitman from Victoria University says Rako’s test “is similar if not better than the nasal swab test.” Sir Brian Roche’s Continuous Improvement Group even said to Minister Hipkins that there is a “strong case for adopting saliva testing as the main method for testing in New Zealand.”

Saliva testing was recommended as an urgent priority by the Simpson/Roche review in September 2020. The roll-out was then delayed repeatedly, only getting under way in August 2021.

National members were shocked at the submission by Rako Science to the committee. Rako stated that:

National members do not understand the need for clause 7 of the bill. As Rako says, it gives draconian powers to the Minister of Health and the Director-General to direct and, through compulsory requisition, the ability to effectively nationalise testing laboratories for COVID-19. It will have a negative effect on New Zealand’s reputation and disincentivise new investment in testing technology. The compensation provisions are inadequate.

For these reasons National does not support the bill.

ACT opposes the bill in general. At a time when New Zealand should be moving towards less restrictive policies to re-establish normality after the pandemic, Parliament is considering a bill that will deepen and prolong highly restrictive policies.

One part of the bill deserves special mention. ACT strongly opposes the amendments to the principal Act set out in clause 7, being new sections 11(1)(c)-(d), and the consequential amendments in clause 8. These amendments would effectively allow the Government to confiscate property with impractical and restricted rights of appeal.

We heard from people who might be affected by these provisions, those who run laboratories. They said they have no way of knowing how they will deal with the new regulatory risk they face under these provisions. They do not know how they would satisfy existing contracts if their resources were requisitioned, or how they manage such a relationship.

The compensation provisions are highly unusual and impractical. The restriction of appeals to the District Court is an affront to the hierarchical structure that underpins courts in New Zealand and other civilised societies. The requirement for compensation at “market rates” is impractical and naïve, in the kind of circumstances that these provisions might be used.

The Government, in drafting this legislation, seems not to have considered that the net effect of the legislation might be to discourage investment in the very things it is trying to make abundant. Nor has it properly considered the effect on New Zealand’s prosperity of legislation that so easily erodes New Zealanders’ property rights.

Finally, the legislation needs to be seen in the context of a considerable public spat between the Ministry of Health and one of the submitters who might be subject to having their property seized by the Director-General of the Ministry of Health. In this light, the legislation can be seen as a way of settling a dispute, and something Parliament should block and certainly not be a party to.