Following the Prime Minister’s recent announcement, Auckland will remain at Alert Level 3, whilst the rest of New Zealand will remain at Level 2 until 11:59pm on 26 August 2020.

In times of national crisis’ such as COVID-19, many questions circulate about the extent of the Government’s authority to issue orders and directives.  For some, these may be questions around the extent to which the Government may lawfully acquire personal information or whether the Government may lawfully require people to undergo mandatory testing.

In this article, we outline some of the significant powers the Government does have in a time such as this.

The Health Act 1956

The Government has a wide range of powers under the Health Act 1956, or more specifically, the medical officer of health.

Significantly, under section 70 of the Health Act, the medical officer of health may require persons to report themselves or submit themselves for medical examination at specified times and places.  Further, if the spread of the disease would be a significant risk to the public, the medical officer of Health may require people to report, or submit themselves for medical testing.  These powers do not extend so far as to require an employer to have their employees submit to mandatory testing.

Given the extensive spread of COVID-19 in the community, evidenced by recent reports, it is likely that the disease would be classed a significant risk to the public.  As such, you would be required, if ordered to, to report or submit yourself for a COVID-19 test.

Other directives the medical officer of health may make are as follows:

  • require persons, places, buildings, ships, vehicles, aircraft, animals, or things to be isolated, quarantined, or disinfected as he thinks fit;
  • by written order to the person appearing to be in charge of the premises concerned, do either or both of the following:
    • (i) require to be closed immediately, until further order or for a fixed period, any premises within the health district (or a stated area of the district):
    • (ii) require to be closed immediately, until further order or for a fixed period, any premises within the health district (or a stated area of the district) in which infection control measures described in the order are not operating:
  • declare any land, building, or thing to be insanitary, and prohibit its use for any specified purpose;
  • cause any insanitary building to be pulled down, and the timber and other materials thereof to be destroyed or otherwise disposed of as he thinks fit.

These are only some of the extensive powers the Government does have under the Health Act.  You will find more information about the medical officer of health’s powers here.

COVID-19 Public Health Response Act 2020

Whilst the Health Act provides for a number of powers which are still being relied on, the Government introduced the COVID-19 Public Health Response Act 2020 (CPHRA) on 13 May 2020.

The CPHRA was introduced to create a tailored legal framework for addressing the unprecedented circumstances of COVID-19.  The CPHRA provides broad powers to the Minister of Health and the Director General of Health to support the public health response to COVID-19.  These powers may be exercised by way of a COVID-19 Order.

We note that a COVID-19 order must follow the form prescribed by the CPHRA.  Among other things, it must be in writing, state the area to which it applies and be published on the Gazette as well as a publicly accessible Internet site maintained by or on behalf of the Government.

Compliance with a COVID-19 Order may be enforced by any person authorised by the Director General in accordance with the CPHRA.

Disclosure of personal information

Another concern many have during this time is the ability of the Government and/or other agencies to gain access to their personal/private information.

Whilst the Privacy Act 1993 generally protects the privacy of one’s personal information, there are circumstances in which an agency may disclose personal information.

Under the Act, personal information is defined as “information about an identifiable individual”.  This is a broad term, encompassing information such as names, dates of birth and home addresses.

Generally speaking, an agency means any person or body of persons, whether corporate or unincorporate, and whether in the public sector or the private sector.  There are exceptions to what an agency is, which can be found here.

As mentioned, there are exceptions to the general principle that an agency that holds personal information shall not disclose the information to another person, body or agency.  Most relevant here would be the exception that the agency who intends to disclose the information believes, on reasonable grounds that the disclosure of the information is necessary to prevent or lessen a serious threat to public health or public safety.  Also defined in the Act, it is likely that a ‘serious threat’ would encompass the COVID-19 Crisis as it currently stands in New Zealand.

Therefore, an agency is likely to be justified in providing such information to health officials and/or the Government for the purposes of preventing or lessening the threat of COVID-19 in the community.

In matters such as this, the public benefit and safety is paramount and will generally trump matters of privacy.

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