COVID-19 Public Health Response Amendment Bill

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

YES

The Act and associated legislative instruments are subject to review by the Regulations Review Committee, which ensures detailed parliamentary oversight of secondary legislation issued under the Act.

The Government’s Elimination Strategy, implemented under the Act, is subject to regular review by the Health Select Committee.

The Ministry of Health (MoH) evaluates the Act and Orders against the Elimination Strategy as part of an ongoing internal review process for both existing and proposed measures (for example, the issue with sub-delegation was identified in the process of making the pre-departure testing and quarantine-free travel orders).

There have been a number of reviews of Managed Isolation and Quarantine (MIQ) and MIQ facilities, some of which are available online at on the MIQ website. These include the Rapid Assessment of MIQ and the report into transmission at the Pullman Hotel in January 2021.

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

NO

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

YES

Two regulatory impact statements were initially produced to inform the policy decisions for this Bill.  MoH provided the statement Legislative improvements to support the public health response to COVID-19 in May 2021, while MBIE produced Legislative Framework for Managed Isolation and Quarantine on 6 May 2021.

A third regulatory impact statement, COVID-19 Orders: Increased penalties for non-compliance, was produced by the Department of the Prime Minister and Cabinet on 6 September 2021 to support increasing the maximum penalties for infringement offences.

Although these reports are not available online at time of writing this disclosure statement, each Ministry will publish their Regulatory Impact Statements on their websites, as well as that of the Treasury, upon introduction of the Bill:

• MoH: https://www.health.govt.nz/about-ministry/information-releases/regulatory-impact-statements
• MBIE: https://www.mbie.govt.nz/document-library
• DPMC: https://dpmc.govt.nz/publications

Treasury: https://www.treasury.govt.nz/publications/legislation/regulatory-impact-assessments

2.3.1. If so, did the RIA Team in the Treasury provide an independent opinion on the quality of any of these regulatory impact statements?

YES

The first two regulatory impact statements were assessed by a two-person panel chaired by MoH with a second member from MBIE. The Treasury advised on and approved the make-up of this panel.

The panel considered that the Impact Statements were clear, concise and complete, and identified a range of feasible options in terms of the legislative proposals. However, due to the short timeframes allowed for the development of the regulatory proposals, there was limited consultation outside of government. As such, the RIAs were assessed as ‘partially meets’ with respect to the RIA quality assurance criteria of consultation.

The third regulatory impact statement produced by DPMC was assessed by a panel comprising MoH, DPMC (The Policy Project) and the Ministry of Justice. The panel assessed the Impact Statement as ‘partially meets’ on the basis that it provides a good account of the policy problem and rationale for intervention, however it does not meet the quality assurance criteria for convincing and consultation due to the absence of sufficient cost/benefit assessment.  The panel noted that significant increases in penalties will have equity, proportionality and consistency implications, and that public consultation has not been undertaken.

2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements?

YES

Clause 12 amends section 22 by extending the power to stop vehicles to certain authorised persons under the Act when under the supervision of a police constable. This amendment was proposed after the RIA was undertaken and deemed exempt from the requirement to produce a regulatory impact statement on the grounds that it has no or only minor impacts on businesses, individuals, and not-for-profit entities.

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

NO

2.5. For the policy to be given effect by this Bill, is there analysis available on:

(a)   the size of the potential costs and benefits?

NO

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

NO

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by:

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

NO

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

NO

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

We have consulted on the policies in this Bill with the Ministry of Foreign Affairs and Trade.

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

The content of the Bill does not specifically impact rights and interests of Māori protected by the Treaty of Waitangi, and in the case of customary interests, also protected at common law.

MoH’s internal Māori Health Directorate was consulted through the development of this Bill, as well as their Oversight Equity Advisory Group. A number of Māori and iwi representative groups were given an opportunity to meet to discuss the Bill prior to its introduction for initial feedback and to inform their submissions at Select Committee. These included:

•           Te Rōpū Whakakaupapa Urutā

•           Pandemic Response Group (subgroup of the National Iwi Chairs Forum)

•           Iwi with MIQ facilities in their rohe.

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

YES

Advice provided to the Attorney-General by the Ministry of Justice, or a section 7 report of the Attorney-General, is generally expected to be available on the Ministry of Justice's website upon introduction of a Bill.  Such advice, or reports, will be accessible on the Ministry's website at http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/bill-of-rights/

3.4. Does this Bill create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

YES

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

YES

a)    Changes have been made to the offence penalties, most significantly enabling regulations to prescribe levels of infringement offence penalties within a maximum set by the Act and by increasing the maximum penalties in the Act. For further detail please see Appendix One.

b)    The Bill includes provisions (new sections 11(1)(d) and (e)) allowing the Minister to use Orders to:

1. requisition testing consumables from laboratories for the use and reallocation for national public health response; and
2. require laboratories to undertake COVID-19 testing solely for the purposes of the public health response to COVID-19.

Clause 8 introduces new section 11A, which ensure that persons affected by these two new powers are respectively entitled to compensation from the Crown at market value for the consumable requisitioned and payment from the Crown for testing undertaken at the market rate. Those affected by these provisions can take any dispute regarding claims for compensation or payment to the District Court, whose decision is final. 

3.4.1. Was the Ministry of Justice consulted about these provisions?

YES

The Ministry of Justice was consulted throughout the development of the policy proposals and the drafting of the Bill. Their comments were taken into account in subsequent papers and Bill drafts and either addressed or resulted in changes being made accordingly.

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

YES

Clause 22 of the Bill introduces section 32T, which requires persons undertaking managed isolation or quarantine to provide and update their onward contact details for the purpose of invoicing for MIQ charges. These provisions have been included for enforcement purposes: this data is already collected on a voluntary basis by MBIE and held until invoices are paid, but this is not an express legal requirement and there is no means to enforce it should someone refuse.

Clause 22 of the Bill also introduces sections 32Q and 32R which enable the Chief Executive of MBIE to make rules about the orderly and effective operation of MIQ facilities, such as rules for deliveries.  To support enforcement, the Chief Executive can hold items that are, or there are reasonable grounds to believe are, in breach of the rules. 

3.5.1. Was the Privacy Commissioner consulted about these provisions?

YES

The Privacy Commissioner was consulted during the development of the policy.

The Commissioner was concerned that statutory protections in 32T should ensure that the information collected for invoicing purposes is only re-used in appropriate circumstances, such as the administration of MIQ facilities and recovery of debt owed to the Crown. MIQ data collection practices are already in place to support this provision.

The Commissioner was also concerned that the power to make rules for deliveries (section 32Q, 32R) would necessarily involve an inspection power (and deliveries could conceivably include personal information).  The Bill does not include an inspection power. Any inspection to determine whether an item is in breach of a rule can only be undertaken with the consent of the owner. The reasonable grounds element acts as a safeguard to ensure that there is a reasonable basis for withholding an item if a person does not agree to inspection.

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

NO

Timeframes did not allow for external consultation. However, in July 2021 officials approached key stakeholders proposing limited engagement, to inform them of the upcoming Bill and enable them to submit at Select Committee with a better understanding of the Bill.

Engagement activities consisted of contacting or meeting with the following groups:

•           Public Health Unit representatives

•           Medical Officers of Health

•           Te Rōpū Whakakaupapa Urutā

•           Pandemic Response Group (subgroup of the National Iwi Chairs Forum)

•           Iwi with MIQ facilities in their rohe

•           NZCTU

•           Hotels operating as MIQ facilities.

Feedback from these stakeholders was largely positive, and detailed discussions focussed on the implementation of changes, rather than the policy rationale behind them.

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete? 

YES

Policy development, including drafting, involved operational staff at both MoH and MBIE. Consultation also took place with a range of agencies and organisations, including the Legislation Design and Advisory Committee, Regulations Review Committee; Departments of Prime Minister and Cabinet and of Internal Affairs; the Foreign Affairs and Trade, Education, Justice, Pacific Peoples, Transport, Women and Primary Industries Ministries; New Zealand Customs Service; Parliamentary Counsel Office; the Offices of the Privacy Commissioner, Crown Law and Ethnic Communities; the New Zealand Police; the Treasury; and Te Puni Kōkiri. These agencies were not formally consulted on the policy proposal to increase the maximum penalties further.

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

YES

As stated above. Clause 7 introduces sections 11(1)(d) and (e), which allow the Minister to use Orders to requisition testing consumables from laboratories for the use and reallocation for national public health response. This is intended to provide security in case there should be a shortage of materials for public testing as a result of high global or domestic demand for testing supplies. It includes provisions that compensation will be paid at a market rate. Those affected by these provisions can take any dispute regarding claims for compensation or payment to the District Court, whose decision is final. This is aligned with singular provisions providing for the compulsory requisition of property under the Health Act 1956.

The existing safeguards on the Orders (eg, the requirement that they be justified under the New Zealand Bill of Rights Act 1990 (NZBORA)) will continue to apply.

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

NO

4.4. Does this Bill:

(a)   create or amend a strict or absolute liability offence?

YES

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

NO

The Bill introduces three new strict liability offences:

• clause 13, new section 26(3)(b) provides that a breach of a rule made by the Chief Executive under new 32Q is an infringement offence
• clause 22 introduces section 32P(1), a requirement for people undertaking managed isolation or quarantine to remain in their rooms except in specified circumstances. Section 32P(6) provides that a failure to comply with this requirement is an infringement offence
• clause 22 introduces section 32T, a requirement for people undertaking managed isolation or quarantine to provide, and keep updated, their contact details for the purpose of invoicing. Section 32T(3) provides that failure to comply with this requirement will be an infringement offence.

The Bill also provides for delegated legislation, which may have infringement offences attached, such as the series of clauses that amend the possible breadth of COVID-19 Orders, thereby enabling new strict liability offences (see 4.8 for list of clauses/sections).

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

NO

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

YES

The Bill contains two powers that could directly affect rights, obligations or interests:

• Clause 22 introduces new section 32P. This section requires that people undertaking isolation or quarantine remain in their rooms except in specified circumstances, including to do an activity authorised by the relevant Chief Executive such as access fresh air. However, s32P(3) allows for the relevant Chief Executive to not authorise activities in the following situations: public health, health and safety or security. Restrictions must be consistent with NZBORA.
• Clause 22 introduces new section 32R, which allows for the holding of items brought into the MIQ facility that are, or there are reasonable grounds to believe are, in breach of rules (under s32Q). Any rules made under 32Q must also be justified under NZBORA. Items can only be held for the duration of a person’s stay in MIQ.

The Bill also amends the empowering provisions of delegated legislation that could affect a person’s rights, obligations or interested. Appendix Two has more information on changes to these provisions.

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

YES

Clause 9 of the Bill amends section 12 of the Act, specifically 12(1)(d), which enables COVID-19 Orders to authorise the Director-General of Health or the relevant Chief Executive to use Gazette notices to provide further specificity – including on exemptions – of requirements under those Orders. Those authorisations will be subject to any criteria or conditions specified in the Order, which in turn will need to go through the existing processes for creating Orders.

4.8. Does this Bill create or amend any other powers to make delegated legislation?

YES

The Bill amends the powers to make COVID-19 Orders. It also creates powers to make new delegated legislation: new rules for MIQ and regulations to prescribe categories of infringement offences.

For more detail, see Appendix Two.

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

YES

Clause 25 introduces new sections 33B and 33C. These are unusual in that 33B(4) deviates from the standard approach under the Legislation Act 2019 by allowing incorporating provisions that ensure that Orders always refer to the most up-to-date version of the material referenced. This will enable greater flexibility and workability of Orders and will ensure a robust and enduring legal platform for responding to COVID-19 or another pandemic in the future. It will also reduce the administrative burden of updating Orders as new information becomes available, allowing the Government to quickly adapt to the situation, and improving public access to real-time rules and requirements.