Environmental / Resource Management

Where Do COVID-19 Lock-Down Powers Come From?

The Prime Minister has given instructions and we have obeyed.  The country is in lock-down with a raft of personal restrictions and new measures in place, but where does the power to do this come from?

Several regulatory provisions authorise the actions taken to date, and some new ones have been urgently passed.  The best starting point is an Act most of us were unaware existed until recently – the Epidemic Preparedness Act 2006.  The purpose of the Act is to ensure that there is adequate statutory power for government agencies –

  • to try to prevent the outbreak of epidemics in New Zealand; and
  • to respond to epidemics in New Zealand; and
  • to respond to certain possible consequences of epidemics (whether occurring in New Zealand or overseas).

And in addition –

  • to ensure that certain activities normally undertaken by people and agencies interacting with government agencies can continue to be undertaken during an epidemic in New Zealand:
  • to enable the relaxation of some statutory requirements that might not be capable of being complied with, or complied with fully, during an epidemic.

Notices under Epidemic Preparedness Act

On Monday 23 March, the day that our lives and businesses were upturned, the Prime Minister issued a notice under section 5 of the Epidemic Preparedness Act declaring that she was satisfied that the effects of the outbreak of COVID-19 are likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand significantly.  The Epidemic Preparedness (COVID-19) Notice 2020 will remain in force for 3 months unless earlier revoked or renewed.

The Epidemic Preparedness (COVID-19) Notice 2020 allows special powers attributable to Medical Officers of Health under the Health Act 1956 to be activated, and activates section 24 of the Epidemic Preparedness Act enabling certain Judges to modify rules of court as they think necessary in the interests of justice to take account of the effects of COVID-19.  It also provides for the making of epidemic management notices under section 8 of the Epidemic Preparedness Act which can, in turn, activate dormant provisions in the Criminal Procedure Act 2011, the Immigration Act 2009, the Parole Act 2002, the Sentencing Act 2002 and the Social Security Act 2018 that are intended to deal with an out-break of disease.  In addition the Notice allows orders to be made under sections 11 and 12 of the Epidemic Preparedness Act that may, subject to constitutional protections, modify requirements or restrictions in legislation to enable the effective management of an out-break or to deal with requirements or restrictions that may be impossible or impracticable to comply with.

On Tuesday 24 March, with the agreement of the Minister for Social Development and the Minister of Immigration, the Prime Minister gave notice under section 8 of the Epidemic Preparedness Act (Epidemic Preparedness (Epidemic Management – COVID-19) Notice 2020) modifying the application of the Social Security Act and the Immigration Act.  The Ministry for Social Development was authorised to grant emergency benefits to people who would not otherwise be entitled to them, even if the claims had not been inquired into.  Under the Immigration Act provisions were made to deal with temporary visa holders and other adjustments made for enforcement issues. 

The Minister of Immigration already had broad powers under section 22 of the Immigration Act to certify instructions relating to entry to New Zealand.  Similarly, the medical officer of health had existing power under section 70 of the Health Act, to order premises closed and forbid people to congregate in certain places.

National Emergency

On Thursday 26 March 2020 the Minister of Civil Defence declared a state of national emergency over the whole of New Zealand pursuant to section 66 of the Civil Defence Emergency Management Act 2002.  This allows the Director of Civil Defence to provide for the:

  • conservation and supply of food, fuel and other essential supplies
  • regulation of land, water and air traffic
  • closure of roads and public place
  • evacuation of any premises, including any public place
  • if necessary, the exclusion of people or vehicles from any premises or place.

It will be apparent that these powers could be used to apply still stricter restrictions than those that currently apply.  The Prime Minister has said:

We do not expect to use the full extent of these measures but, as with everything we have done in response to COVID-19, we plan, we prepare, we have in place everything we need to get through.”

Other measures

There have been other measures as well, and we do not necessarily cover them all here.  One of these is the COVID-19 Tax Response Act 2020, which introduces taxation and social assistance measures to alleviate the economic impacts of the COVID-19 outbreak.  It has impacts on income tax, tax administration, and social assistance.  There have also been measures to assist local government operations, such as those discussed in our Legal Landscape dated 31 March 2020 – New Rules for Holding Meetings During Lock-Down.

Having had some experience in the drafting of new legislation and regulatory changes, we can only applaud the effort that has been put in by  the central government  sector and those working with it to enact and give effect to these provisions.

Brookfields Lawyers is open for business as usual and keeping our staff and clients safe by working remotely.  We wish you all the best over the coming weeks.

© Brookfields Lawyers 2020 – All Rights Reserved

 

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