The legal and constitutional implications of New Zealand’s fight against COVID

Speech to the New Zealand Centre for Public Law
Tēnā koutou katoa
Thank you for providing this opportunity to speak with you today as Attorney General.
I’m here to talk about the constitutional consequences of Covid -19.
I love the law. The way it exists with the consent of the people for the benefit of the people.
The Covid-19 crisis reminds us of this.
I am going to leave this slide up for most of this address. (It shows we had the best result among OECD countries in terms of low mortality– including other island nations such as Iceland and Ireland – proving that New Zealand’s success is not all about the moat around us.)
The law has been an essential ingredient to the outcome so vividly shown here.
When the virus first appeared in our community, as the Prime Minister has said, there was no rule book and much was unknown.
But seeing the spread and the mayhem overseas, fundamental strategic decisions had to be made.
We determined a public health response informed by science and medicine would be our best way forward, focused on saving lives and saving livelihoods.
This strategy had guided us throughout.
The potential for societal and economic disruption was palpable.
The existing legal framework needed to be updated.
High rates of voluntary adherence to restrictions were needed which relied upon public confidence.
Unity – the ‘team of five million’ – was the basic building block to maintain confidence, which in turn required compliance with the law – legal compulsions that impact civil liberties.
More often than not, we have required the unwilling to do what the many were or would do of their own volition.
Social distancing, checking-in, mask wearing, testing, vaccination, lock downs, closed borders and MIQ, have enormously disrupted going about our daily lives.
The sacrifice has been burdensome.
That we, together, have achieved a world class response is tribute to the tenacity of our people and the strength of our community.
The loss of liberties caused by COVID has brought into play very important Bill of Rights issues.
I want to focus on how we have sought to address them, and will cover the checks and balances we have adopted, including the many mechanisms we have embedded to maintain the ability of the Parliament and the Courts to scrutinise and if appropriate curb the exercise of Executive powers.
I have greatly appreciated the thoughtful and helpful critiques and suggestions provided by legal academics from this and other Law Schools, many of which we have adopted.
I will reflect on the effect of the Delta variant, and then consider what our lives look like now that vaccinations are available and the rate of take-up is high.
Early response to the pandemic
As we transition from border protections to the vaccine protection we each carry our share of, it is easy for critics to glibly take for granted how effective New Zealand’s response to the global pandemic has been.
It has been world leading, and it is pleasing to see the low death rate, economic resilience and more freedoms (relative to many countries) acknowledged in the court decisions on challenges to aspects of the legal framework.
Had we not broken the chain of transmission, the exponential growth seen overseas would have occurred here.
Back then, testing and contact tracing were constrained for a number of reasons, including the worldwide shortage of test kits and PCR test reagents.
The situation evolved rapidly. 
What we knew about the virus, its spread, and the gravity of what we faced was changing every day. 
Our social cohesion allowed us to successfully battle the pandemic.
The clear and early communication of risks and requirements by health experts, the PM and other Ministers was a key ingredient.
We adopted public health measures such as physical distancing, washing your hands and staying in your bubble.
We were one of the first to roll out support to those impacted by the pandemic, cushioning the financial and economic blow for New Zealanders.
It was the right thing to do, and necessary to maintain the social contract as we pull together to tackle the public health emergency.
The wage subsidy kept workers attached to their workplaces, and supported demand in the economy.
At its peak it supported two-thirds of the labour force and had the broadest reach in the OECD. Social support benefits were increased by $25 per week too.
Our “go hard, go early” approach in 2020 was both the best health and economic response, evidenced by low unemployment, lower deficits than forecast, and credit upgrades from international agencies.
Through all this we have not lost sight of the importance of protecting civil liberties.
The importance I and the government attach to civil liberties has been demonstrated by many active steps.
The repeal of the repugnant three strikes legislation, the repeal of arbitrary restrictions on prisoner voting rights are specific instances.
The progression of the so called “half way house” under the Bill of Rights Act – creating a pathway for a considered and often less politicised response by both Parliament and the Executive to declarations of inconsistency by the higher Courts.
This will be of enduring effect.
It has been described by Sir Geoffrey Palmer as perhaps the most important advance for the protection of civil liberties since his Act was passed in 1990.
It is with that high regard for civil liberties that we have taken decisions needed about how we use the far-reaching powers under pandemic legislation to limit the havoc caused by a deadly mutating virus. 
The restrictions imposed under section 70 of the Health Act to facilitate the first lockdown were far-reaching and as you will be aware were subsequently challenged in Borrowdale v Director General of Health.
A full bench of the High Court rejected the challenge to the orders and found that the Director-General was entitled to exercise the powers.
The Court also held that while the requirement for New Zealanders to stay home for the first nine days of lockdown was justified, it was nevertheless unlawful. It found that for those nine days that limitation on the rights protected by the Bill of Rights Act 1990 was not correctly authorised until a further order was made under the Health Act.
The decision of the High Court in Borrowdale was upheld by the Court of Appeal.
As that court observed, the powers under s 70 of the Health Act were “intended to facilitate an immediate and urgent response to a public health crisis”.
The Health Act, which in many ways is predicated on quarantining, did not provide the framework needed for a longer-term response to COVID. Bespoke legislation was needed.
At the time it was all hands to the pump.
Unusually Cabinet handed me as Attorney-General responsibility for urgently developing the legislation, utilising leading lawyers from across Government including Crown Law, MBIE, PCO, and DPMC.
The Bill was introduced on 12 May and went through the Parliamentary process under urgency, receiving the Royal assent on 13 May.
As Cooke J has summarised it, the Act establishes powers to make orders with restrictive effect to address the risks of an outbreak and further spread of the virus.
The COVID-19 Public Health Response Act 2020 incorporated a number of very important safeguards:
It made Ministers rather than the Director-General of Health responsible for the main Orders under it.
It limited the powers under the Act to the COVID pandemic.
The Act self-repeals every 90 days unless Parliament passes a resolution for it to continue. 
Orders under it are revoked unless approved by Parliament within, generally, 60 days
The Act put Orders under it within the purview of the Regulations Review Select Committee, chaired by an Opposition member, which reports on each Order to the house. Their recommendations have resulted in improvements to subsequent orders.
The Act expressly preserved the role of the Courts to judge orders against the Bill of Rights Act 1990, and requires Orders to minimise intrusions into civil liberties.
We even went to the extent of appointing the Minister of Justice as Acting Attorney General for the purposes of the Bill of Rights vet on the Bill, because of my conflict arising from my policy responsibility for that Bill.
Although the Act was necessarily and properly passed under urgency, we adopted a number of suggestions from legal experts and the Opposition including to immediately put the Act to a Select Committee for scrutiny via its Inquiry function.
While Parliament was not sitting, we maintained a special Select Committee chaired by the Leader of the Opposition, which ranged transparently and widely.
All COVID orders made subsequently, and actions pursuant to them, have benefited from both the checks and balances in the Act and the recourse of citizens to the Courts. 
The COVID 19 Public Health Response Act has, I believe, served us well.
Consequently, we enjoyed the summer and much of early 2021 with few restrictions, save short sharp lockdowns to stamp out the virus when it reappeared.
Our freedom was in stark contrast to much of the rest of the world.
The emergence of the Delta variant, however, radically changed things.
It is more contagious, spreads faster, and is harder to contain than the original COVID strain.
It can cause more people to develop serious illness, with higher numbers in hospital.
The strain on our healthcare system of a substantial outbreak among an unvaccinated population could overwhelm it to the detriment not just to those with COVID but also others who require medical treatment for different reasons.
When Delta appeared in our community in August, we needed to act decisively.
The country rapidly went back into lockdown and we revived supports like the wage subsidy.
Once again, the community spirit required to stop the spread reignited nationwide.
There is no question that the recent lockdown in Auckland and neighbouring provinces slowed down transmission and saved lives and livelihoods. (NEXT SLIDE)
It also bought us time to transition from border protection to vaccine protection.
Thanks to the tremendous work of scientists and extraordinary global cooperation, we now have a strong method of protecting ourselves, our whānau and our community from the worst ravages of COVID, including the Delta variant.
Widespread uptake of the vaccine is fundamental for New Zealander’s health and wellbeing.
Its rollout here and overseas is central to our ability to ease restrictions and reconnect New Zealand with the rest of the world.
We are doing very well, with over 90 per cent of the eligible population having had at least one dose and more than 85 per cent double vaxed.
We are striving for over 90 per cent to have had two doses across the country.
We set the vaccination challenge for New Zealanders knowing that without high rates of vaccination, freedoms would need to be constrained to stop the pandemic spreading.
Higher risks arise from, and for, unvaccinated people.
Hard decisions have to be made about what life looks like for those who choose not to get vaccinated, as we seek to maximise the freedoms and health outcomes.
Government had to decide what levers should be able to be used, consistent with fundamental rights and New Zealand’s values.
Many people will be familiar with philosopher John Stuart Mill’s “harm principle” that says “the only purpose for which power can be rightfully exercised over any member of a civilised community, against their will, is to prevent harm to others”.
The Bill of Rights Act is not proscriptive as to government conduct. Policy choices are available, provided that where protected rights are engaged, the outcomes remain justifiable under the Bill of Rights Act.
The most obvious right engaged by the question of vaccines is section 11 of the Bill of Rights Act.
It protects the right to refuse to undergo medical treatment.
The Supreme Court considered section 11 in New Health New Zealand Inc v South Taranaki District Council (a case about fluoride) and took an expansive view of what it protects.
We have had to grapple with questions about how this approach to the right applies, and what limits on that right are justified, in the COVID pandemic context.
When does the state’s legitimate interest in protecting the public justify consequences for the individuals who remain unvaccinated?
There have been a number of cases in recent weeks that have considered this.
Important decisions by Justices Churchman, Cooke and Palmer have addressed the vaccine rules we have imposed for border workers (customs), teachers and health workers.
As Cooke J noted: 
“In recent times there has been a very strong emphasis on vaccination, and the benefits of as many New Zealanders as possible being vaccinated for the overall public good.
“It is a matter of observation that in public discourse those who are not in favour of vaccination can be subject to criticism, and at times public condemnation. Within that environment the Court plays an important role. … A fundamental right in the Bill of Rights is being limited.”
He notes that the applicants explained why they did not want to be vaccinated and that they had lost their employment as a consequence of the measures.
He also noted that they been on the front line in the public health response to COVID-19, and they had described the difficult circumstances they faced including in isolation facilities:
“They should not be thought of as any less committed to the community than any other New Zealander,” Cooke J rightly said.
These cases raise group vs. individual rights.
The pandemic and the availability of the COVID vaccine highlights the tension between group interests and individual liberty interests because, other individuals and groups of people, cannot enjoy rights and freedoms unless the community acts together.
As Churchman J observed in the case of a former Customs employee:
the case addressed the intersection between legislation designed to achieve the public benefit of limiting the risk of the spread of the COVID-19 virus and private interests in an employee relationship.
In political theory this tension between group interests and individual liberty interests is sometimes talked about in terms of the claims different groups make to what are called “public goods”.
Some public goods can only be enjoyed and obtained collectively.
Taken too far, collective rights are used by communist, fascist or theocratic regimes to suppress minorities and individual liberties.
Conversely extreme views of individual liberties ‘trumping’ community rights beget unjust outcomes too.
For now the only way we can protect the public in the Covid environment, without lengthy lockdowns curtailing many liberties, is through high vaccination rates.
I believe that currently, unless an individual adult has a medical reason not to be vaccinated – which we now know is a very small group of people – there is a fair expectation that all who can, should.
Our purchase of the AstraZeneca vaccine should further reduce reasons for objection where they are based on concerns about the Pfizer jab.
We have used public education, and provided free services.
The fourth estate – as distinct from the wild west ravings on social media – has been an important and responsible critic and intermediary. 
On Super Saturday 130,000 people got vaccinated, with events across the country.
The atmosphere was one of joy and positivity.
Community-based initiatives will continue to be important as we achieve ever higher vaccination rates.
We have made it clear that those who choose not to be vaccinated will be able to access essential goods and services, such as health care, food from supermarkets and compulsory school education.
But – in order to protect us all, and especially the most vulnerable members of our community – unvaccinated people may not be able to enjoy some of the things that others can.
This is not out of a desire to be punitive or out of a lack of tolerance for often genuinely held beliefs.
Its purpose is to minimise the spread of COVID so as to protect others, though it will also nudge some people towards vaccinating.
Vaccine certificates will now become a feature of daily life as we move into the COVID-19 Protection Framework – also known as the traffic light system.
Many businesses and event-holders will be able to choose whether they use vaccine certificates for their customers.
At each of the green, orange and red levels, using vaccine certificates will allow gatherings like weddings, hospitality and gyms to operate with fewer restrictions.
Covid Vaccine Certificates reduce the risk of COVID spreading, and, consequently, reduce serious illnesses, hospitalisations, and deaths.
Some private companies have announced that they will not serve or allow physical access to unvaccinated people, from summer music festivals to international flights.
Others are requiring their staff to be vaccinated for the protection of their other staff or customers.
Private sector decisions do not trigger the same Bill of Rights Act balancing exercise in the same way as government decisions do. Human Rights Act obligations not to discriminate, say, on disability grounds, may be engaged.
It is unlikely that exclusion from music festivals or international flights or private premises would be unlawful.
Not being able to go out for dinner is simply a consequence of their refusal to be vaccinated.
For vaccine certificates to be equitable, all eligible sectors of the population should have access to the vaccine and have had a fair opportunity to consider whether they wish to be vaccinated.
We believe that precondition is met.
There needs to be, and is, a non-digital certificate option for those who do not have access to smartphones.
An exemption is needed for those who medically cannot be vaccinated, and of course solutions for children for whom the vaccine is not yet approved.
We are satisfied that our vaccine certificate plan is fair across those grounds.
They will also reassure the vaccinated public that the people around them at venues and gatherings are also vaccinated, and their risk of contracting and spreading COVID is significantly reduced, which will reduce the burden on our healthcare system. 
Vaccine certificates are a crucial part of the equation in reducing the reliance on lockdowns and reconnecting New Zealanders with the world.
The message is clear.
If you choose not to be vaccinated, there will be things you miss out on.
To give as much clarity and certainty as possible to how vaccine certificates and other controls under the traffic light framework will work, the Government has set out all the controls for each of the traffic lights by including them in one new Order now, but made only some of those controls “active” right now.
This means New Zealanders can see all the controls that could apply at Red, Orange or Green, or if a localised lockdown is needed.
Vaccine requirements for work
Turning now to vaccine requirements for work.
People who choose to be unvaccinated do not always have free choice of employment.
The Government has introduced vaccine requirements for those working in MIQ, border, health and disability, education, prison workforces, police and defence force personnel.
Vaccine uptake by those workforces is now in the high 90s.
Workers at businesses where customers will need to show COVID vaccination certificates, such as hospitality and close-contact businesses, are also required to be vaccinated.
The Government’s decisions around vaccine rules for these workforces have been based on robust risk assessments to minimise the spread of COVID, particularly among vulnerable populations.
Beyond these areas it is up to the PCBU (the person conducting a business or undertaking, a concept used in the Health and Safety at Work Act).
We have responded to requests from the private sector to design a relatively simple protocol or tool for them to use, but it is not compulsory and other health & safety tests can be applied. 
Vaccine requirements established by the COVID-19 Public Health Response (Vaccinations) Order have been challenged in the High Court in three cases so far: GF and Four Aviation Security Service Employees  – both about the border worker mandate – and Four Midwives, NZDSOS Inc and NZTSOS Inc – about the healthcare and teaching worker mandates.
The Crown accepted in each case that for employees, the choice of either being vaccinated or having their employment terminated engaged their right to refuse medical treatment.
In all three cases the rules were found intra vires the Minister’s powers under the Covid-19 Public Health Response Act.
In the border worker cases, the Court found that the limit on the right to refuse medical treatment imposed by the vaccination for work rule was justified under s 5, as it served a sufficiently important purpose and was proportionate to the risk of the spread of COVID.
The s 5 justification issue in the NZDSOS case about the healthcare and teaching workforce mandates will be set down for early 2022.
More detailed provisions for vaccine requirements have now been shifted to primary legislation, with Orders detailing the types of work and additional detailed requirements, responding to the court’s concerns that these measures were being implemented via more general empowering provisions.
In GF, Churchman J cited Vavricka v Czech Republic, a recent decision of the European Court of Human Rights about compulsory childhood vaccinations, which found that:
“it cannot be regarded as disproportionate for a State to require those for whom vaccination represents a remote risk to health to accept this universally practised protective measure, as a matter of legal duty and in the name of social solidarity.”
As we have learnt more about the efficacy and effects of the vaccine, the Bill of Rights Act analysis of vaccine rules becomes clearer.
When we were unsure about whether pregnant women could be vaccinated safely, blanket mandates without exemptions risked discriminating against people on the basis of sex.
Now that we know that pregnant women can be, and indeed it’s important that they are, that issue become less difficult.
No major religion has counselled its followers to refuse the vaccine on theological grounds.
The Government believes people are fairly asked to bear consequences of their choice not to vaccinate.
There are a small number of people who, because of allergies or other similar medical issues, cannot be vaccinated.
Rules without exemptions for those people risk discriminating on the basis of disability.
While we have learnt that group is very small indeed, there are exemptions for those who, for a legitimate medical reason, cannot be vaccinated.
Without measures like vaccine certificates and requirements for work, we would be more reliant on lockdowns and closed borders, curtailing many other freedoms.
As Canadian academics Colleen Flood and Bryan Thomas have recently said:
“The choice is between a world where everyone remains cycling in and out of lockdowns, versus a world where lockdowns are limited to gatherings that risk disease spread. To prefer universal lockdowns is to pursue a perverse ‘levelling-down’ vision of equality”.
I could equally quote from the United States Supreme Court, writing in 1905 in Jacobson v Massachusetts, a case about compulsory vaccination against smallpox.
“Individual rights cannot trump the common good; otherwise, the Court said, “the spectacle would be presented of the welfare and safety of an entire population being subordinated to the notions of a single individual”.[i]
The weighing of public goods against individual rights is complex, but we should not let the choices of a few hold-back New Zealand’s progress towards a safer and freer future.
Last week we passed under urgency the empowering legislation for the traffic light system and for Covid Vaccination Certificates or CVCs.
That has sparked a lot of comment and some criticisms.
The empowering legislation for CVCs sits within the Covid 19 Health Response Act so protections applying to orders also apply to CVC orders.
In the case of the courts we do not have government imposed vaccination requirements. People have to be able to have access to court rooms. We are working these issues through with the judiciary. We want them to control the process in their own courts. We don’t want there to be an implication the executive is making these decisions. This is important to both preserve the integrity of the justice system and maintain public confidence in the court system and the Covid response. That includes the ability of the courts to scrutinise the actions of the executive, free from accusations that they’re somehow in league with the executive in respect of the issues of access to the courts and vaccines.
The traffic light regime and the role of CVCs was signalled in advance, so our approach was not a surprise.
Furthermore, regulations will be reviewed by the Regulations Review Committee so there will be a degree of parliamentary scrutiny that has not always been acknowledged by our critics.
When the country faces a significant crisis – be it war, natural disaster or in the current case a pandemic – the Government does need to move quickly.
When legislation is required at pace, urgency throughout the policy and law making process is essential, in the public good.
There is huge complexity under the hood, and in some ways legislation is the last output when all of the complex practicalities and policy issues have been resolved.
The speed of law-making is determined by these practicalities, and by society’s need to urgently adopt new rules in substitution for existing lock down restrictions.
This involves political as well as legal judgements, which include maintaining the necessary social consensus which every day of a prolonged lockdown puts at risk
The Future
The future, as we well know by now, is uncertain.
The emergence of the “Omicron” covid-19 variant in recent days has sparked determined activity in the scientific and medical communities around the world as we seek advice and guidance.
However, our strategy holds strong and we have proven ourselves so far to be resilient to these unprecedented challenges.
With ever higher vaccination rates comes more options and fewer restrictions.
As the virus mutates and science advances, we too will respond swiftly, supporting those affected.
The new protection framework moves us beyond lengthy lockdowns, and their significant economic consequences.
The border restrictions will loosen, and self-isolation will be the norm for lower-risk travellers.
Carefully stepping through the transition from elimination to containment provides certainty of progress and the agility to respond quickly while maintaining our hard-won gains.
Our calm and caring science-driven approach has resulted in more freedoms in New Zealand and less death, hospitalisation and disease than any other OECD country has achieved.
We have done all of this while honouring the Bill of Rights Act, and protecting the roles of the Courts, the Parliament and the Opposition. 
As the Prime Minister has often said, “We don’t claim perfection.”
But our record in responding to the unprecedented challenges thrust upon us by the covid-19 virus is, I believe, second to none.
We have had to move quickly and into areas seldom seen in peace time.
It is remarkable in my view that we have redesigned so much and brought it together in time.
Cabinet decisions are preceded by significant policy work. We have to design software, redeploy staff, test protocols, consider implementation practicalities and expert advice, consult unions, employers, the Privacy Commissioner and others affected.
So in terms of COVID, the apparently simple act of drafting, introducing and passing a Bill is the penultimate step, important as it is, in a complex process.
For the most part, the people have been with us and have risen to the challenge despite the burden, despite the sacrifice, despite the hardship.
After two years of dealing with COVID, it remains a privilege to be an elected representative entrusted with these important decisions.
If anyone can come through this pandemic and look to the future with optimism it is New Zealand.
Tēnā koutou, tēnā koutou, tēnā koutou katoa.

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