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Public Health Bill (Consistent) (Sections 8, 11, 13, 14, 15, 16, 17, 18, 19(1), 20, 21, 22, 23(1)(c), 24(e), 25(c), 27(1) and (3)) [2007] NZBORARp 56 (22 November 2007)

Last Updated: 5 January 2019

Public Health Bill

22 November 2007 Attorney-General LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

PUBLIC HEALTH BILL

1. On 14 November 2007, we provided you with preliminary advice as to whether the Public Health Bill (PCO 7138/21) ('the Bill') is consistent with the New Zealand Bill of Rights Act 1990 ('the Bill of Rights Act'). We have now had an opportunity to review version 22 (PCO 7138/22) of the Bill. We understand that the Bill was considered by Cabinet at its meeting on Monday, 19 November 2007 and approved for introduction.
   
2. Our view is that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. We reached this conclusion by considering potential issues of inconsistency with sections 8, 11, 13, 14, 15, 16, 17, 18, 19(1), 20, 21, 22, 23(1)(c), 24(e), 25(c), and 27(1) and (3) of the Bill of Rights Act.
   
3. In finding that the Bill appears to be consistent with the Bill of Rights Act, we have extensively relied on the requirement that authorised persons exercising their powers must do so consistently with the requirements of the Bill of Rights Act. Moreover, some of the more invasive powers granted to authorised persons may only be exercised subject to the safeguards contained in the Bill.
   
4. The following summary provides you with:
   

• A brief overview of the purpose and contents of the Bill;
  
• A note of the provisions of the Bill which appear to raise issues under the Bill of Rights Act; and
  
• Our conclusions as to the Bill's consistency with the Bill of Rights Act.
  

5. This summary is followed by a more extensive analysis which discusses each of the issues raised under the Bill of Rights Act and notes, where relevant, the justificatory material in each instance.
   

SUMMARY OF THE BILL OF RIGHTS ACT ISSUES

6. The Bill updates the public health legislative regime to improve, promote and protect public health and help attain optimal and equitable health outcomes for all population groups in New Zealand.

Section 8 – Right not to be deprived of life

7. The Bill sets out the powers and procedures for setting priorities and conditions for the administering, dispensing, prescribing or supplying of medicines during an emergency. In the case of an emergency, it is conceivable that individuals may suffer a premature death where vital medicine is in short supply. The power to set priorities for medicines is consistent with section 8 of the Bill of Rights Act. We note that when setting and publishing priorities for medicines, the Director-General is obliged under section 3(a) of that Act to ensure that his or her actions are consistent with the right not to be deprived of life.
   

Section 11 – Right to refuse to undergo any medical treatment

8. The Bill includes a number of provisions that require a person to undergo treatment or a medical examination. There is, however, a strong public interest in preventing the spread of disease by confirming, where possible, whether an individual who has been exposed to a condition or is liable to quarantine does in fact pose a risk to others.
   

Section 14 – Freedom of expression

9. The Bill contains a number of provisions that compel people to say certain things or provide information. Information may be provided to other agencies or to health officers for the purpose of exercising their powers, duties or functions. The compelled information is necessary for many of the public health processes and for the protection of public health. The public health system and emergency situations would be very difficult to manage without the provision of this type of information.
   
10. The Bill also contains provisions for the amelioration of nuisance, which may include activities that contain an expressive element. We are satisfied, however, that the nuisance provisions do not authorise any action taken to relation to a nuisance that would be an unjustified limitation on the freedom of expression.
    

Section 15 – Right to manifest religion or belief

11. Under the general emergency powers, a medical officer of health may authorise the storage or disposal of bodies if he or she considers it necessary and in the interests of public health. While this appears to limit the right to manifest a person's belief in practice, such limitation would be justified. The situations where this power may be required are worst-case scenarios where there may be a high number of fatalities and a need to dispose of bodies quickly to reduce the risk to the public.
    

Sections 16, 17 and 18 – Freedom of movement, peaceful assembly, and association

12. Under the Bill, a number of measures may be imposed on individuals or groups to manage public health conditions and emergencies. These include, but are not limited to, orders to refrain from carrying out specified activities (such as taking public transport, or engaging in employment), going to specified places, and associating

with specified persons, as well as implementation of quarantine provisions. Given the broad interpretation the Courts have given to sections 16, 17 and 18 under the Bill of Rights Act, it is likely that these measures may give rise to a prima facie infringement of one or more of these rights and freedoms.

13. In our view, limits on these rights are justified where it is necessary to manage notifiable conditions, conditions being reported as being part of a cluster or outbreak, conditions constituting a risk to public health, quarantine issues or emergencies. There are several safeguards attached to the exercise of these powers including, depending on the context, various evidential burdens, the involvement of a Court, requirement to contact and consult family or whānau, and appeal rights.
    

Section 19(1) – Freedom from discrimination

14. Under the Bill, the list of notifiable conditions raises two prima facie issues of inconsistency with the freedom from discrimination. The first is based on the fact that the actual or suspected finding of a notifiable condition may trigger for quarantine powers. The second relates to the varying requirements for notification of notifiable conditions found in Schedule 1.
    
15. The first issue involves the possibility that someone with a significantly less serious condition may be subject to the same deprivation of civil liberties as someone with a very serious condition. In the normal course of events, the powers under the Bill would only be used in relation to very significant conditions. There may, however, be a degree of uncertainty about a condition, and it is important to maintain flexibility in relation to the objectives of health protection.
    
16. The second issue concerns the different notification requirements for those affected by specified notifiable conditions. In general, those suffering from sexually transmitted diseases will have a degree of anonymity not accorded to individuals with other notifiable conditions.
    
17. The degree of anonymity is necessary to encourage individuals either suspecting or suffering from a sexually transmitted disease to seek treatment. The discriminatory treatment ends, however, where identifying particulars are necessary for the treatment of persons with the condition or for the protection of public health.
    

Section 21 – Freedom from unreasonable search and seizure

18. The Bill provides for a number of powers, more fully discussed below, that could be considered search and seizure, but appear reasonable in the circumstances.
    
19. With respect to entry and search, the Bill sets out two general codified regimes: warranted and warrantless powers. We consider the warranted regime to be consistent with the Bill of Rights Act. The warrantless regime, however, gives rise to a prima facie issue of inconsistency with section 21 of that Act. This regime is justified as it only authorises persons to enter and search property and premises in order to improve, promote and protect public health. There are also a number of

safeguards present in the regime. The exercise of the warrantless powers must be tied to the relevant authority contained in the Bill. In addition, a dwelling house or marae may not be entered and searched without a warrant.

Section 22 – Right not to be arbitrarily detained

20. The Bill contains numerous provisions authorising the detention of individuals. In all cases, the power to detain individuals requires reasonable cause, is for a significant purpose, and follows proper procedures. These provisions cannot be considered arbitrary.
    
21. Under the quarantine powers, a person may be briefly detained on arrival in New Zealand, and for longer periods for inspection or surveillance where necessary. The Bill provides various safeguards for individuals detained for longer periods.
    
22. The general emergency powers permit detention where an emergency has been declared. Again, there are safeguards such as time limits, mandatory review, appeal rights and provisions for release when a person is no longer a health risk. While the trigger for the detention power is simply the existence of an emergency, we consider that this power must be read consistently with the Bill of Rights Act in that a person may only be detained when the person is, or is suspected to be, a health risk.
    

Section 23(1)(c) – Determining the validity of detention

23. The Bill does not unreasonably delay the ability of detained individuals to access a Court to determine the validity of their detention. In addition to not abridging any habeas corpus applications, the Bill also provides that an individual may appeal to the District Court against the decision of a medical officer of health to require that person be detained.
    

Section 25(c) – Right to be presumed innocent until proved guilty

24. The purpose of all of the strict liability offences contained in the Bill is to achieve the objectives of the relevant Parts. The proposed offences are rational and proportionate. In reaching this decision, we note that the penalties, while some are not at the lower end of the scale, reflect the significant harm that could result from non-compliance with the Bill.
    

Section 27(1) – Right to natural justice

25. The general emergency powers contain an explicit right to review only in relation to the power to detain and isolate individuals. We have considered whether the exclusion of the right to review the application of other emergency powers would raise an issue of the right to natural justice.
    
26. The inclusion of a right of review for detention and isolation powers is necessary, as the exercise of isolation powers in the time of an emergency may result in the quarantine of large numbers of people and may be more invasive than the other

general emergency powers. While there is no automatic right of review associated with the other general emergency powers, these cannot be exercised in an unfair or arbitrary way or oust access to judicial review.

Compliance orders and the Bill of Rights Act

27. A compliance order may require a person to do or stop doing anything that an authorised person believes on reasonable grounds will contravene the Bill or is necessary to prevent, remedy or mitigate a significant risk to public health.
    
28. We consider that the procedural safeguards present in the compliance order regime are sufficient to ensure that any limitation that such an order places on the rights and freedoms protected in the Bill of Rights Act is justified.
    

PURPOSE OF THE BILL

29. The Bill seeks to improve, promote and protect public health in order to help attain

optimal and equitable health outcomes for all population groups, including Māori.

30. The Ministry of Health has advised that the current legislative framework for the protection of public health is outdated. Current trends in international travel; new and emerging threats such as emerging conditions like SARS and new forms of human influenza, but also harm caused by chemical and radionuclear sources; and, changes in international law (in particular, the adoption of the International Health Regulations) all require an updated approach.
    
31. The Bill, therefore, substantially replaces the Health Act 1956, the Tuberculosis Act 1948 and associated regulations. Some changes were made to the legislative framework through the Epidemic Preparedness Act 2006 and associated amendments to the Health Act. These changes, primarily affecting emergency and quarantine provisions in the Health Act, ensure an effective New Zealand response to the possibility of communicable disease-related emergencies such as that which could arise from pandemic influenza. The 2006 amendments are carried forwarded in the Bill.
    

STRUCTURE OF THE BILL

32. The Bill contains eight Parts and four Schedules, each one covering a different subject matter. The broad structure of the Bill is set out immediately below. The issues of inconsistency with the Bill of Rights Act will follow in a separate section for each Part of the Bill and in order of the provisions under the Bill of Rights Act.
    
33. Part 1 sets out the preliminary provisions of the Bill and the roles and responsibilities of the Minister of Health, Director-General of Health, Director of Public Health and District Health Boards.
    
34. Part 2 establishes up a health information disclosure regime. A medical practitioner or specified person must report matters that constitute a health risk. Under the Bill,

a health risk is defined quite broadly. The information to be provided includes an individual's medical history, disabilities, health services provided, test information and any information collected before or in the course of health services provided to the individual.

35. A medical practitioner or specified person and laboratories must also notify the appropriate authority if a person has or is suspected to have a notifiable disease or condition. Notifiable diseases or conditions are listed in Schedule 1 of the Bill. The list includes a number of common and uncommon diseases and conditions with widely varying morbidity, mortality and communicability.
    
36. This Part also covers the National Cervical Screening Programme that is currently in Part 4A of the Health Act.
    
37. Part 3 deals with non-communicable diseases, such as cardiovascular disease, diabetes, cancers, mental illness and addictions. Generally, the principles of this part are to: improve and enhance the health of communities; manage or eliminate risk factors; respect the well-being and mutual interdependence of families and their communities; and implement public health objectives.
    
38. Part 4 of the Bill contains provisions for managing health risks arising from specified conditions. These provisions include powers to make various orders and directions, offences, contact tracing and disclosure of a condition to others.
    
39. Part 5 sets out the functions of the territorial authorities in relation to environmental health (i.e. public health matters related primarily to the physical environment), including sanitary works and stopping nuisances. In particular, territorial authorities will have duties and discretionary powers to improve, promote, and protect public health within their districts.
    
40. The objective of Part 6 is to establish a regulatory framework to set controls on goods, services or activities, which in the absence of any other regulatory measures, may create a risk to public health. These activities are specified in Schedule 3 of the Bill and include services connected with camping grounds, mortuaries, hairdressing, microwave ovens, plastic wrapping, and needle and syringe exchange programmes.
    
41. Part 7 deals primarily with emergencies and border health. Under this Part, the Minister may declare an emergency if he or she has reasonable grounds to believe that a serious risk to public health exists in any place or area within New Zealand and that the exercise of powers under the emergencies subpart will help to prevent, reduce, or eliminate that risk. There are significant powers available on the declaration of an emergency.
    
42. With respect to border health, the powers contained in the Bill turn on the presence or suspected presence of a quarantinable condition. Where a quarantinable condition is present, the Bill provides the power to quarantine and detain

individuals, comply with directions and supply or obtain information, keep individuals under surveillance and board and inspect ships or aircraft.

43. Part 8 of the Bill contains a number of miscellaneous provisions. These provisions set out, among other things, general powers of entry and inspection, the procedure for compliance orders and general provisions about search warrants.
    
44. The Schedules to the Bill list notifiable diseases and other notifiable conditions (Schedule 1), notifiable contaminants (Schedule 2) and regulated activities (Schedule 3), and repeal and revoke certain legislative provisions (Schedule 4).
    

ISSUES OF CONSISTENCY WITH THE BILL OF RIGHTS ACT

45. Although the purpose of the Bill is focused on improving, promoting and protecting public health, the Bill positively reflects upon a number of rights and freedoms contained in the Bill of Rights Act. The Bill offers a level of justification for many prima facie inconsistencies with that Act through:
    

• the general policy statement that the principles of risk management and proportionality underlie the Bill as a whole and that public health powers are to be exercised within a human rights framework;
  
• the specific policy objective that the interests of public health are to be balanced with individual rights to freedom and privacy;
  
• the recognition of the role of least restrictive alternative and respect for individuals in achieving the objective of minimising the health risk posed by an individual in the management of conditions posing health risks;
  
• the requirement to keep the individual informed about the nature of any power that is exercised and its implications, any steps planned to be taken in respect of the individual, and the right to appeal against the exercise of the power and to apply for judicial review;
  
• the general recognition throughout the Bill of a justification approach to prima facie infringements of the Bill of Rights Act in areas such as unreasonable search and seizure, liberty of the person and natural justice.
  

46. Where a provision does limit the rights and freedoms protected in the Bill of Rights Act, such limitations may be consistent with that Act if it can be considered "reasonable" (that is "justifiable") in terms of section 5 of that Act. The section 5 inquiry is essentially two-fold: whether the provision serves an important and significant objective; and whether there is a rational and proportionate connection between the provision and that objective.[1]

PART 1: PRELIMINARY PROVISIONS, ROLES AND RESPONSIBILITIES

47. We have examined whether Part 1 of the Bill raises an issue of consistency with section 27(1) of the Bill of Rights.
    

Section 27(1): Right to natural justice

48. Section 27(1) provides that every person whose interests are affected by a decision by a public authority has the right to the observance of the principles of natural justice. One of the fundamental principles of natural justice is the right to be heard.
    
49. Clause 8 enables the Director-General to issue a direction in writing to any person carrying out functions or exercising powers under the Bill or any regulations made under the Bill. We are satisfied that this provision complies with the principles of natural justice. In reaching this view, we note that sub-clause 8(2) requires the Director-General to consult with anyone to whom the direction would be issued and take account of any submissions they make before issuing a direction. In addition, the provision does not oust the ability of a Court to review the decision.
    

PART 2 – HEALTH INFORMATION, NOTIFICATION, REPORTING AND CERVICAL SCREENING

50. Part 2 raises a number of prima facie issues of consistency with sections 14 and 21 of the Bill of Rights Act.
    

Section 14: Freedom of Expression

51. Section 14 of the Bill of Rights Act affirms the right to freedom of expression, which includes the freedom to seek, receive, and impart information and opinions of any kind and in any form. The right to freedom of expression extends to all forms of communication that attempt to express an idea or meaning.[2] The right has been interpreted as including the right not to be compelled to say certain things or to provide certain information.[3]
    
52. We note – taking into account the various domestic and overseas judicial pronouncements on the issue – a two-step inquiry has been adopted to determine whether an individual's freedom of expression has been infringed. The first step involves a determination of whether a particular activity falls within freedom of expression. The second step is to determine whether the purpose or effect of the proposed government action is to restrict that freedom.[4]
    
53. Part 2 of the Bill contains several provisions that require persons or bodies to provide or disclose information:
    

• Specified persons, specifically certain government and other agencies, including Police and Corrections officers may request any agency providing services or arranging the provision of service to disclose health information about an individual for the purposes of exercising or performing that person's powers, duties or functions (clause 21);

• The Minister may require a provider or funder of services to provide health information about individuals for statistical, research, and other purposes (clause 22);
  
• The Minister may require a District Health Board to give information relating to testing or donation of body parts or bodily substances to certain entities appointed to collect and distribute blood and controlled human substances (clause 23);
  
• A medical practitioner or specified person who provided care to a person is required to notify the appropriate authority if they have reasonable grounds to believe that the person has a notifiable condition. If the appropriate authority considers it necessary, they may also require the medical practitioner or specified person to provide information that discloses the identity of the person concerned (clause 32);
  
• A person in charge of a laboratory is required to notify the appropriate authority if they have reasonable grounds to believe that the results from any test indicate that the person from whom the test was taken has a notifiable condition. If the appropriate authority considers it necessary, they may also require the person in charge of the laboratory to provide information that discloses the identity of the person (clause 33);
  
• A person in charge of a laboratory is required to notify the appropriate authority if they have reasonable grounds to believe that the results from any test indicate the presence of a notifiable contaminant (clause 34).
  

54. An important component of the first step in determining whether the freedom of expression has been infringed is that the communication in question must attempt to express an idea or meaning. It is arguable whether this component is satisfied in relation to most of the information that has to be provided under these provisions. The information is generally of a factual or statistical nature and does not seem to be sufficiently expressive in nature to engage section 14.
    
55. For completeness, however, we have considered whether, if the provisions place a limit on the freedom of expression, they are justifiable in terms of section 5 of the Bill of Rights Act. This assessment is important, particularly as non-compliance with these requirements may have consequences that create a degree of compulsion. For instance, failure to report or notify as required is an offence punishable by a fine not exceeding $1,000 (clause 42).
    
56. The disclosure regime seeks to allow investigations to occur and enable the initiation of possible control measures (in relation to particular individuals with health issues of public concern, and their contacts), which may, in turn, help prevent a danger to the public.[5] We consider this a significant and important objective.
    
57. In our view the provisions setting out the disclosure obligations are also rationally and proportionally connected to this objective. The information to be provided is generally limited to factual or statistical health information that is obtained by the

person in the course of their work, and not obvious or otherwise available to the appropriate authorities. Making this information available to these authorities, for instance, limits the risks to public health posed by persons who are infected by a communicable condition. It also enables the authorities to obtain statistics for health information purposes or for the purposes of advancing health knowledge, health education, or health research.

58. There are also a number of safeguards attached to the disclosure of information. For instance, no information can be released under clause 22 that would enable the identification of an individual unless that individual has consented to the provision of such information or the identifying information is essential for the purposes for which it is sought. Also, the regime for the disclosure of health information is also subject to the information privacy principles set out in both the Privacy Act 1993 – in particular those governing the disclosure of personal information (principle 11) – and the Health Information Privacy Code 1994. This is particularly relevant for the provisions that allow disclosure to certain government and other agencies without the permission of the individual concerned (clause 21). These provisions are largely similar to section 22C of the Health Act. Although that provision now allows disclosure of information to the Accident Compensation Corporation. Such an extension is reasonable given that ACC clients are already obliged to sign a consent form allowing disclosure of health information as necessary for the administration of their claim.
    
59. We therefore consider that where these clauses limit section 14 of the Bill of Rights Act, such limitations appear to be justified under section 5 of that Act.
    

Section 21: Freedom from unreasonable search and seizure

60. Section 21 of the Bill of Rights Act provides the right to be secure against unreasonable search and seizure. There are two limbs to the section 21 right. First, section 21 is applicable only in respect of those activities that constitute a "search" or "seizure". Second, where certain actions do constitute a search or seizure, section 21 protects only against those searches or seizures that are "unreasonable" in the circumstances.
    
61. Clause 28 allows the Director General of Health or a Chief Executive of a District Health Board to require that a provider makes available for inspection any records that relate to a subsidy claim. This may include information relating to services provided to a person.
    
62. Clause 29 allows the Director General of Health or a Chief Executive of a District Health Board or the Chief Executive of Pharmac to require that a provider makes available for inspection any records of the provider, for the purpose of verifying compliance with the requirement of the pharmaceutical schedule (the meaning of which is defined in clause 27 of the Bill).

63. We note that non-compliance with a requirement made under clauses 28 and 29 is an offence punishable by a fine not exceeding $10,000. However, we consider that these provisions are reasonable, and therefore do not represent a breach of section 21 of the Bill of Rights Act. In reaching this conclusion we have taken into account that these provisions are part of a regulatory framework ensuring the enforcement of healthcare provision, and therefore could be considered to be a public good.
    
64. We have also considered whether the provisions contained in clause 20 which allow the 'voluntary' provision of health information to the police or other law enforcement officials by persons who hold such information raise an issue of inconsistency with section 21 of the Bill of Rights Act. In our view, the provision of information in such a circumstance does not raise such an issue.
    
65. We note that information may only be provided for the purpose of allowing the police or other enforcement agency to exercise or perform any of their powers, duties and functions. While this information may be used to investigate a crime, a person cannot have a reasonable expectation of privacy that the police cannot and should not seek to garner evidence of wrongdoing from third persons who are prepared to, and are allowed to, make the information available on a voluntary basis.[6] As noted by Butler and Butler[7], it has long been the case at common law that the doctrine of breach of confidence is inapplicable if disclosure of information relates to suspected wrongdoing. This is emphasised by section 6 (information privacy principle 11(e)(i)) of the Privacy Act which provides that the disclosure of personal information may be made where the holder of the "information" believes on "reasonable grounds" that disclosure is "necessary" to avoid prejudice to the maintenance of the law, "including the prevention, detection, investigation, prosecution, and punishment of offences."
    

PART 3 – NON-COMMUNICABLE DISEASES

66. Part 3 of the Bill, amongst other things, enables the publication of codes of practice or guidelines to a sector on a particular activity to reduce a health risk factor associated with the activity. When considering this Part we have considered an issue of consistency with section 14 of the Bill of Rights Act.
    

Section 14: Freedom of expression

67. The right to freedom of expression extends to political and religious expression as well as commercial speech (such as advertising).[8] Overseas case law suggests, however, that not all forms of expression are equally deserving of protection and commercial speech is considered to reside within the periphery of the right.[9] The Courts have taken the view that commercial expression is of less importance than political or religious expression and consequently limitations on this aspect of the right are easier to justify.[10]
    
68. Clause 85 authorises the Director-General to permit statements that goods and services comply with codes and guidelines to be included in any material by which

goods, substances, or services are advertised, promoted, sponsored or marketed, or in any communication to employees concerning health or safety. Publishing a statement without permission of the Director-General is an offence punishable by a maximum fine of $10,000 (although the Court may also require the offender to disgorge any commercial gain resulting from the contravention). In light of this, we consider that the requirement to obtain the prior approval of the Director-General before publishing statements of this nature raises an issue of inconsistency with section 14 of the Bill of Rights Act, although we do note that the restriction this provision places on freedom of expression is likely to be employed mainly with respect to commercial publications.

69. We consider that a restriction of this nature is clearly justifiable on the face of the Bill. The provision seeks to ensure that the public has confidence in the accuracy of any statement issued by a supplier of goods or services that the goods or services in question comply with codes and guidelines issued by the Director-General. While the supplier must seek the prior approval of the Director-General, when applying clause 85 of the Bill the Director-General must act in a manner that is consistent with the Bill of Rights Act and therefore cannot withhold that approval arbitrarily or otherwise in an unjustified manner.
    

PART 4 – MANAGEMENT OF CONDITIONS POSING HEALTH RISKS

70. Part 4 of the Bill provides a regime for the management of persons who pose a health risk because of a specified condition. When examining this Part we considered issues of consistency with sections 11, 14, 15, 16, 17, 18, 22, 24(e) and 27(1) of the Bill of Rights Act.
    

Section 11: Right to refuse to undergo any medical treatment

71. Part 4 also contains a number of provisions that require a person to undergo "treatment" or a "medical examination":
    

• a medical officer of health may direct an individual who they believe, on reasonable grounds, poses a health risk, to undertake one or more medical examinations (clause 97(2));
  
• the District Court may, as part of a health risk order, require an individual to accept treatment for the condition that has made them subject to the health risk order (clause 114(1)(f)); and
  
• the District Court may make an examination order requiring an individual to undergo specified medical examinations (clause 117(2)).
  

72. We have considered whether these provisions are consistent with section 11 of the Bill of Rights Act. This provision provides that:
    

"Everyone has the right to refuse to undergo any medical treatment".

73. We consider that the term "medical treatment" for the purposes of section 11 of the Bill of Rights Act includes the examination of a person and the taking of a bodily sample for the purpose of assessment and diagnosis. This is because "it is a part of the overall mission of treatment, and will often involve invasion of personal interests and bodily integrity, which is the goal of section 11 to protect."[11]
    
74. We consider that the provisions noted above place reasonable limitations on section 11 of the Bill of Rights Act. In coming to this decision, we have taken into account that these provisions appear to be in the best interest of the public good. There is a strong public interest in examining and treating individuals who have been assessed as possibly having a notifiable disease, as this is crucial to preventing the spread of that disease. Moreover, these provisions are subject to the overarching principles governing the management of conditions posing a health risk, which are set out in clauses 90 to 93 of the Bill. These principles are that preference must be given to the least restrictive measure, that individuals should be treated with respect, and that an individual affected by the exercise of powers should be properly informed about that exercise. The inclusion of these principles is particularly important given the range of diseases and conditions that are classified as notifiable with varying degrees of morbidity, mortality and communicability.
    

Residence orders

75. We have also considered whether clause 128 – which enables the District Court to issue a residence order in respect of a person who is unable to care for himself or herself – raises an issue with section 11 of the Bill of Rights Act.
    
76. We acknowledge that the issuance of residence orders under clause 128 is not confined to situations where the health of the community may be adversely affected (that is, they can be issued where the health of the person who is unable to take care for himself or herself may be adversely affected). This provision, however, acknowledges the positive obligation on the State to ensure that persons who cannot care or provide for themselves are cared for by the State, preferably in consultation with their families, but by the State if there is no other option.
    
77. Further, clause 128 does not enable the Court to override a person's right to refuse to undergo any medical treatment. Section 6 of the Bill of Rights Act requires that wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in that Act, that meaning must be preferred to any other meaning. We are of the view that there is sufficient flexibility in the wording of clause 128 – particularly the absence of the words "unwilling to care for himself of herself" – to ensure that may be read compatibly with section 11.
    

Section 14: Freedom of expression

78. We have also considered whether any of the measures the may be imposed under clauses 95, 97, 98, 114, 119 and 128 raise an issue under the section 14 of the Bill of Rights Act. This is because the measures that may be imposed on a person suffering

from a condition may restrict the person's ability to engage in public discussion or protest, conduct which is clearly expressive for the purposes of section 14 of the Bill of Rights Act.

79. We note that limitations on the right to freedom of expression may be justified because of public health concerns. Article 19(3)(b) of the International Covenant on Civil and Political Rights provides that the right to hold opinions may be subject to certain restrictions as are provided by law and are necessary for the protection of national security, public order or public health. Taking into account the safeguards that are contained in this Part of the Bill (which are discussed in paragraph 92 below), we consider that any limitation that these provisions place on freedom of expression would be justified in terms of section 5 of the Bill of Rights Act.
    

80. We also note that under clauses 95(4)(f), 97(3)(a), 98(2)(a), 114(1)(d), 119(2) an individual must accept the supervision of a specified person for a specified time. The supervision may include a requirement to appear at meetings arranged by that person and, more importantly, provide that person with information on any action, occurrence, or plan that is relevant to the health risk posed by that individual. In our view, these clauses amount to a justified limitation on the right to freedom of expression.

Contact tracing

81. Under clause 142 an individual with a notifiable condition may be required to give information about the identity of that individual's contacts as well as the circumstances in which the condition may have been communicated to or by the contact. Clause 145 further provides that for the purpose of identifying the contacts of an individual, a medical officer of health may approach the employer of the individual, any educational institution attended by the individual, or any business or other organisation that the individual has dealt with to provide the medical officer with the names and addresses of any contacts of the individual. Non-compliance with a direction to provide the required information is an offence punishable by a fine not exceeding $10,000.
    
82. Despite the fact that the imposition of a penalty creates a clear element of compulsion, it is arguable whether all the disclosure requirements amount to compelled 'expression' for the purposes of section 14 of the Bill of Rights Act. This is because the persons identified in the provisions are not required to express opinions or ideas but simply to provide factual information (e.g. the names and addresses of any contacts of the individual). Nevertheless, we have considered whether the relevant clauses are justifiable under section 5 of the Bill of Rights Act.
    
83. The provisions relating to contact tracing enable health officials to investigate and manage communicable conditions by identifying and seeking people who have been in contact with a person with a communicable disease in order to prevent further spread of the disease and to offer testing and treatment to people at risk. This is an important and significant objective. We also note that a number of safeguards are

built into the contact tracing regime. For instance, where appropriate the individual must be given the opportunity to undertake the contact tracing himself or herself. Further, when approaching a contact the medical officer must not, so far as practicable, disclose the identity of the individual who may have communicated the condition to the contact (clause 146).

84. In light of this, we consider the contact tracing regime is a reasonable balance between the possible harm (both to the patient, and the overall trust between doctors and patients) and the benefits likely to arise from disclosure.[12] The limits that this regime places on section 14 of the Bill of Rights Act are justified in terms of section 5 of that Act.
    

Sections 16, 17 and 18: Freedom of peaceful assembly, association and movement

85. As part of the regime for the management of conditions, a number of measures may be imposed on the person. For example, under clauses 95, 97, 98, 99, 114, and 119 of the Bill if a medical officer of health or the District Court is satisfied on reasonable grounds that an individual poses a health risk because they have a notifiable condition, they may require that individual to refrain from carrying out specified activities (including taking public transport, employment).
    
86. Clauses 95, 114 and 119 also enable them to require the individual to
    

• refrain from going to specified places;
  
• refrain from associating with specified persons.
  

87. The District Court may also order, on application by a medical officer of health, a person to reside in a specified place and be cared for by a specified person or organisation if that person is unable to care for themselves (clause 128).
    
88. These provisions appear to raise issues of consistency with:
    

• the right to freedom of peaceful assembly, which includes the right to come together and participate in events, either public or private (section 16 of the Bill of Rights Act);
  
• the right to freedom of association, which includes the freedom for an individual to meet with whoever the choose to (section 17 of the Bill of Rights Act); and
  
• the right to freedom of movement (section 18 of the Bill of Rights Act).
  

89. We have considered the rights to movement, peaceful assembly and association together as we will rely on similar reasoning to justify the prima facie inconsistencies resulting from the management of conditions posing health risks.
    
90. In our view, the limitations that the proposed measures place on these rights are justified in terms of section 5 of the Bill of Rights Act. In reaching this view, we note that the purpose of the majority of these measures is to effectively manage

notifiable conditions, as well as those that have been reported as being part of a cluster or outbreak, or constituting a risk to public health. This is an important and significant objective.

91. When considering the proportionality and rationality of the proposed measures, account was taken of the overarching principles guiding action taken under Part 4, namely the application of the least restrictive approach, respect of the individual, and the duty to keep the individual informed.
    
92. We also note that the measures are time limited (clauses 96(1), 115(1) and 133(1)) – although they may be extended upon application to a Court (clauses 96(1), 116(1) and 134) – and must be imposed by the Court, who is required to take into account certain factors in assessing the health risk (see for instance clause 108). In addition, the medical officer must regularly review each direction or order, and must rescind the direction if the person no longer poses a health risk (clauses 96 and 101). A person who is required to comply with a direction or order is able to appeal against the direction, or part thereof, to a higher court (clauses 103 and 135). Finally, prior to applying to the Court for an order the medical officer of health must, whenever practicable, consult with the individual and, where appropriate, the individual's family or whānau. This consultation has the aim of ascertaining whether the need for the order can be avoided by voluntary compliance and whether the needs and wishes of the individual can be accommodated within the terms of the order and the manner of its administration (clause 110 and 131).
    

Right to manifest religion or belief (section 15)

93. We have further examined whether any of the measures that may be imposed under clauses 95, 97, 98, 114, 119 and 128 raise an issue under the section 15 of the Bill of Rights Act, which affirms the right to manifest religion or belief. This includes the right to worship, practice or teach religion, either individually or in community with others, and either in public or in private.
    
94. The measures that may be imposed on a person suffering from a condition may restrict the person's ability to access places of worship and attend prayers. We note, however, that the European Commission on Human Rights has held that the right to manifest one's religion does not encompass the right to attend prayers at all times. Moreover, visiting a church, mosque, synagogue or other place of religious significance could not be considered an indispensable element of religious worship.[13] Similarly, the right to worship does not entail the right to have constant access to a place of worship.[14]
    
95. While we consider it unlikely that the measures that may be imposed under clauses 95, 97, 98, 114, 119 and 128 would be considered a limit on the rights protected by section 15 of the Bill of Rights Act, if this were to occur such a limitation would be justified in terms of section 5 of that Act. The courts have recognised that the manifestation of religion or belief can be justifiably limited on health and safety grounds. As with the rights to expression, peaceful assembly, association and

movement, a balance has to be struck between freedom of religion and the health and safety of the public.[15] In the present case, the balance that has been struck is a reasonable one.

Section 22: Right not to be arbitrarily detained

96. Section 22 of the Bill of Rights Act provides that "everyone has the right not to be arbitrarily arrested or detained."
    
97. We have considered whether the following provisions could be interpreted as authorising "arbitrary detentions":
    

• clauses 95(4)(f), 97(3)(a), 98(2)(a), 114(1)(b) and 119(2) which require an individual to stay, at all times or at specified times, at a specified place of residence;
  
• clause 106(2), relating to urgent health orders, which requires an individual to be detained at specified premises; and
  
• clause 119(1)(a) which requires an individual to be detained, at all times or at specified times, in a hospital or other suitable place.
  

98. The courts have said that a detention is arbitrary when it is "capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures."[16] For this reason, arbitrariness should not be equated with "against the law", but should be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.
    
99. Applying these standards to the identified provisions, we consider that it is arguable whether the provisions authorise "arbitrary detentions". In reaching this view, we have taken account of a recent ruling of the European Court of Human Rights regarding the detention of individuals suffering from an infectious disease. In Enhorn v Sweden[17], the Court held that such detentions will only be justified if:
    

• the response is proportionate to the threat the disease poses to the general public;
  
• the measure is a measure of last resort; and
  
• the detention must be lifted as soon as possible as the person no longer poses a threat to the public.
  

100. The provisions clearly set out the circumstances in which the power may be used and who may effect the detention. The ability to detain an individual who poses a health risk is both necessary and reasonable as it will help manage the potential health threat by ensuring that the person is kept apart from other persons during the period that they would be capable of passing on the disease. We note that the duration that the person may be detained for is clearly set out, as are the circumstances for extending the time period.

101. When considering whether these provisions are consistent with section 22 of the Bill of Rights Act, we also took account of the fact that the detention powers are subject to the overarching principles governing the management of conditions posing a health risk, particularly the least restrictive approach requirement.
     

Section 24(e): Right to trial by jury

102. Section 24(e) of the Bill of Rights Act provides that everyone who is charged with an offence has the right to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for more than 3 months.
     
103. Clause 126 of the Bill provides that the offences of recklessly spreading a notifiable disease or other notifiable condition to another person may be prosecuted by way of summary conviction despite the fact that these offences carry a penalty of imprisonment for a term not exceeding one year. The provision appears on the face of the Bill to limit section 24(e) of the Bill of Rights Act. However, this is not the case. Clause 126 is subject to section 66(1) of the Summary Proceedings Act 1957, which provides a defendant with the right to elect trial by jury where the maximum penalty exceeds imprisonment for three months.
     

Section 27(1): Right to natural justice

104. Clause 122 of the Bill provides that there is no right of appeal for urgent health risk orders made under clause 106. We have considered whether these provisions are consistent with section 27(1) of the Bill of Rights Act.
     
105. The principles of natural justice vary in accordance with the nature of the power being exercised in particular circumstances. We note that urgent health risk orders may only be issued under clause 106 where a medical officer of health believes on reasonable grounds that an individual has an infectious condition, the individual poses a health risk, to address that risk the officer must take urgent action, and it is not practicable to obtain a court order urgently. The order must be signed and given to the individual, and is only valid for 72 hours after the individual has received it.
     
106. We consider that there is sufficient protection in the procedure for issuing urgent health risk orders to satisfy the minimum requirements of natural justice as affirmed in section 27(1) of the Bill of Rights Act. Any additional protections, such as providing an opportunity to appeal the decision to issue an urgent health risk order is not necessary to meet these minimum standards. This does not mean that this power can be applied in an unfair or arbitrary way or cannot be the subject of a judicial review or habeas corpus application.
     

PART 5: PUBLIC HEALTH ROLE OF TERRITORIAL AUTHORITIES

107. Part 5 of the Bill sets out the functions of territorial authorities in relation to environmental health. When examining this Part, we considered potential issues of consistency with sections 13, 14, 15, 19(1), 20, 21, and 25(c) of the Bill of Rights Act.

Sections 13, 15, 19(1) and 20: Religious and cultural beliefs

108. Clause 165 of the Bill enables a medical officer of health to order the immediate burial, cremation or removal of the body of a person who has died if he or she thinks that the body is a risk to public health. It may be that particular religious and cultural beliefs are such that the immediate disposal of a body would offend such beliefs. However, the importance of minimising a risk to public health is such that limitations upon the rights set out in sections 13, 15, 19(1) and 20 of the Bill of Rights Act may be justified.
     
109. In reaching this view, we note that although this provision provides for the immediate burial or cremation of a body upon the direction of the medical officer, it does not override other legislative obligations that take into account the diverse cultural and spiritual needs of families (e.g. section 23 of the Coroners Act 2006, which imposes an obligation upon the Coroner to notify certain persons, including immediate family members and family representatives, of 'significant matters' in the carrying out of the duties and processes required by law to be performed or followed in relation to the death).
     

Section 14: Freedom of Expression

Requirements to provide documents or other information

110. Clause 154 requires a Regional Council to provide, upon request, a written report to the Director-General or any District Health Board ("DHB") responsible for an area in the region of the Regional Council. A similar requirement is set out in clause 155 for territorial authorities. As these clauses require the disclosure of certain information, we have considered whether the limitations the clauses place on the right to freedom of expression are justified in terms of section 5 of the Bill of Rights Act.
     
111. We consider these clauses justified as they enable the Director-General and DHBs to undertake their statutory duty without fear of compromise. This is a significant and important objective as it promotes the integrity and supervisory role of these institutions in the area of public health. Further, the limitations are rationally and proportionately connected to this objective as they are tailored to certain circumstances and information required must not contain personal information about an identifiable individual (see clause 156).
     

Nature of nuisance – activities causing noise or vibrations

112. Clause 166 of the Bill sets out the definition of the term 'nuisance'. The types of activities that are covered by this term include some that may have an expressive element, such as a concert, sport event (particularly motor sport) or protest march. This is because the noise or vibrations arising from these activities may in certain circumstances be considered injurious to public health.

113. We further note that under this Part of the Bill a territorial authority may take any remedial action required to stop or prevent an activity that causes a nuisance. Generally, the territorial authority is required to apply to the Courts for a rectification order requiring the owner or occupier to stop the activity causing the nuisance (clause 171). However, where the activity poses a significant risk to public health in the area an environment health officer of a territorial authority may enter the land or premises and stop the nuisance (clause 177).
     
114. Taking into account section 6 of the Bill of Rights Act, we are of the view that these provisions do not authorise the cessation of an activity causing a nuisance if this would amount to an unjustified limitation on the right to freedom of expression. The provisions would therefore be interpreted as only authorising the cessation of activities in circumstances that do not impact on the right protected by section 14 of that Act.
     

Section 21: Right to be secure against unreasonable search and seizure

115. We have considered whether clause 153 is consistent with the right to be secure against unreasonable search and seizure. This provision, amongst other matters, allows a territorial authority to carry out regular inspections of its district for the purpose of ascertaining whether any nuisances exist in the district. However, this power is subject to clause 168. Although this clause allows an environmental officer to take samples using equipment brought onto the land or premises for that purpose, the inspection power is limited by the requirement that inspections may only be carried out at a reasonable time. Moreover, the inspection power is subject to the general provisions relating to entry and search set out in clauses 352 and 358 of the Bill, which as we discuss in paragraphs 215 to 222 below are reasonable. In light of this, we consider that the search power set out in clause 153 is consistent with section 21 of the Bill of Rights Act.
     
116. We have also considered whether the power to enact bylaws providing for the inspection of any land or premises for the purposes of the Bill is consistent with right to be secure against reasonable search and seizure (clause 186(1)(p)). We note that regulations have to be drafted in a manner that is consistent with the Bill of Rights Act, otherwise they may be open to challenge for being ultra vires.
     

Section 25(c): Right to be presumed innocent until proved guilty

117. Section 25(c) of the Bill of Rights Act affirms the right to be presumed innocent until proved guilty according to law. In R v Wholesale Travel Group[18], the Supreme Court of Canada held that the right to be presumed innocent until proven guilty requires, at a minimum, that an individual must be proven guilty beyond reasonable doubt, and that the state must bear the burden of proof.
     
118. In strict liability offences, once the Crown has proved the actus reus, the defendant can only escape liability by proving, on the balance of probabilities, either the common law defence of total absence of fault, or a statutory defence that

embodies that defence. In general, defendants should not be convicted of strict liability offences where an absence of fault or a "reasonable excuse" exists.

119. A statutory defence reverses the usual burden of proof by requiring the defendant to prove, on the balance of probabilities, the elements of the defence. Because the burden of proof is reversed, a defendant who is able to raise doubt as to his or her fault but is not able to prove absence of fault or a reasonable excuse to the standard of the balance of probabilities would be convicted. We consider, therefore, that where the defendant is required to prove something in order to escape liability, the use of strict liability offences is contrary to the presumption of innocence protection contained by section 25(c) of the Bill of Rights Act.
     
120. Part 5 of the Bill contains the following strict liability offences:
     

• Clause 169 (cause or continues, without lawful justification or excuse, a nuisance) –

liable to a fine not exceeding $10,000;

• Clause 173 (failure to supply, without reasonable excuse, water and toilets) – liable to a fine not exceeding $10,000; and
  
• Clause 175 (failure to duly comply, without reasonable excuse with a rectification order) – liable to a fine not exceeding $50,000.
  

121. We have considered whether the offences amount to a reasonable limit on the right to be presumed innocent in terms of section 5 of the Bill of Rights Act.
     
122. The purpose of these strict liability offences is to ensure the integrity of the process to control nuisances and maintain public confidence in this process. In our view, this is a significant and important objective. We also consider that these offences could be described as regulatory in nature, and note that the information that can exonerate the defendant is information that is particularly in the realm of the defendant.
     
123. While we consider that the strict liability offences exhibit a rational connection with the objective, we have closely examined the proportionality of the proposed penalties. We note that as a general principle, strict liability offences should carry penalties at the lower end of the scale. While the fines for these offences are not fully compliant with this principle, the penalty levels address the significant harm versus the potential benefits that a wrongdoer could stand to gain by not complying with the requirements set out in these provisions relating to the control of nuisances.
     

PART 6: REGULATED ACTIVITIES

124. Part 6 of the Bill provides a regulatory framework to set controls on goods, services or activities, which in the absence of any other regulatory measures, may create a risk to public health. These activities are specified in Schedule 3 of the Bill

and include services connected with camping grounds, mortuaries, hairdressing, microwave ovens, plastic wrapping, and needle and syringe exchange programmes.

125. When examining this Part, we considered potential issues of consistency with sections 14, 19(1), 21, and 25(c) of the Bill of Rights Act.
     

Section 14: Freedom of Expression

126. Under clause 253 of the Bill, an assessor has the power to require information, records or documents relating to a regulated activity that is in the possession or control of any person. This clause may give rise to prima facie issues of inconsistency with the right to freedom of expression.
     
127. However, as the objective of this Part of the Bill is to control regulated activities in order to prevent, reduce or eliminate the risks to public health associated with those activities (clause 194(1)) we consider that this measure is rationally and proportionately linked to the objective in question. In particular, we note that a person is not required to give any answer of information tending to incriminate that person (clause 198(4)). In our view, such a provision is clearly justifiable.
     

Section 19(1): Freedom from Discrimination

128. Section 19(1) of the Bill of Rights Act affirms the freedom from discrimination on prohibited grounds set out section 21 of the Human Rights Act 1993 including race and ethnic origins. In our view, taking into account the various domestic and overseas judicial pronouncements as to the meaning of discrimination, the key questions in assessing whether discrimination under section 19(1) exists are:
     

1. Does the provision draw a distinction based on one of the prohibited grounds of discrimination; and
   
2. Does the distinction involve disadvantage to one or more classes of individuals?
   
   129. If these questions are answered in the affirmative, the provision gives rise to a prima facie issue of 'discrimination' under section 19(1). Where a provision is found to be prima facie inconsistent with a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be justified under section 5 of that Act.
        
   130. Clause 239 of the Bill enables the Minister to amend by Order in Council Schedule 3 of the Bill, which lists the regulated activities. Sub-clause 239(2) requires the Minister, before making such a recommendation, to consult with persons likely to be affected by the recommendation, including representatives of Māori interests. We have examined whether this requirement raises an issue of inconsistency with section 19(1) of the Bill of Rights Act but consider that this is not the case. The provision does not prevent the Minister from consulting with other persons likely to

be affected by the recommendation and, in fact, obliges the Minister to solicit the views of local government.

Section 21: Right to be secure from unreasonable search and seizure

131. We have considered whether the powers of assessors set out in clause 253 – particularly the power to enter any land, building, vehicle or craft that is owned, occupied or used by a person carrying on a regulated activity – are reasonable. We consider that this is the case. Again we note that these powers are subject to the general provisions relating to entry and search set out in clauses 352 and 358 of the Bill, which are discussed in paragraphs 215 to 222 below. We also note that the assessor cannot, except in limited circumstances, enter any land or building that is a defence area (clause 254). In addition, an assessor requires a warrant to enter a dwellinghouse or a marae (clause 255).
     

Section 25(c): Right to be presumed innocent until proved guilty

132. There is one strict liability offence in Part 6 of the Bill. Clause 195 makes it an offence for a person, without reasonable excuse, to contravene the Act, the applicable regulations, any conditions on the consent granted for the activity or the requirements of any public health risk management plan approved for the activity. The penalty for this offence is a fine not exceeding $200,000, although the Court may, where the person convicted holds a consent to carry out the risk activity, cancel the person's consent instead of imposing a fine.
     
133. We consider that this provision can be considered a reasonable limit on the right to be presumed innocent until proved guilty by law in terms of section 5 of the Bill of Rights Act, because:
     

• the offence is regulatory in nature rather than a truly criminal offence, which involves the punishment of acts involving moral fault, an element largely lacking in regulatory offences;
  
• it contributes to achieving the aim of this Part of the Bill, which is – among other things – to prevent, reduce or eliminate the risks to public health associated with regulated activities;
  
• the Regulations governing the regulated activities will be published, and thus persons carrying out those activities will be on notice about what is permissive conduct. It is therefore particularly within the realm of defendants to demonstrate that they had a reasonable excuse for non-compliance.
  
• the penalty provided for in clause 12 (a fine not exceeding $200,000) – although not at the lower end of the scale – is in line with similar provisions in the Health (Drinking Water) Act 2007. This is despite the fact that the Bill covers a wider range of conduct than that Act and could potentially have greater impact on everyday activity. Further, the penalty imposed under the Bill does not include a term of imprisonment.

PART 7: EMERGENCIES AND BORDER HEALTH AND ISSUES OF CONSISTENCY WITH THE BILL OF RIGHTS ACT

134. Part 7, which covers emergencies and border health raises issues of consistency with sections 8, 11, 14, 15, 16, 17, 18, 19(1), 21, 22, 23(1)(c), 25(c), and 27(1) of the Bill of Rights Act.
     

Purpose of Part 7 of the Bill

135. As we have previously stated, the Bill updates the legislative framework for the protection of public health. A number of changes have already been made to this framework as part of the Epidemic Preparedness Act. The Bill should be read in concert with that Act, especially as the two pieces of legislation interact and share common purposes in relation to emergencies and quarantine. Part 7 of the Bill, however, applies to a broader range of public health emergencies than the Epidemic Preparedness Act and Health Amendment Act 2006. Part 7 addresses communicable and non-communicable conditions as well as emergencies arising from biological, chemical, or radiological factors.
     
136. Part 7 specifies the extensive powers available to medical officers of health on the declaration of a public emergency. These powers include an ability to limit movement, to close premises such as workplaces and schools (or to allow them to remain open only under specified conditions), and to require quarantine and isolation.
     
137. Subpart 2, which deals with border health, provides that the primary role of health agencies at the border is to ensure human health protection. It relates in particular to people and craft coming into, or leaving, New Zealand as possible sources of infection, as well as human environments and sanitary conditions associated with craft and around ports and airports.
     
138. Many of the powers contained in the border health section turn on whether someone is liable to quarantine. Persons liable to quarantine include:
     

• a person that is on board, or disembarks from, a craft that is liable to quarantine;
  
• a person who is affected by a quarantinable condition; or
  
• in the 14 days before a person arrived in New Zealand, the person has been exposed to a condition that is a quarantinable condition.
  

139. While the purposes of both subparts to part 7 are often similar, clause 321 provides that each subpart operates independently. Nothing in one subpart limits or affects the powers conferred by the other subpart and visa versa.

The trigger provision

140. Clause 264 of the Bill specifies that the emergency powers in Part 7 may be exercised by a medical officer of health when an emergency is declared by the Minister or by Order in Council, or when a state of emergency has been declared under the Civil Defence Emergency Management Act 2002 or an epidemic notice is in force. While the trigger provision does not directly raise an issue of inconsistency with the Bill of Rights Act, the way the provision is framed impacts on the proportionality of the powers available once the public health emergency has been declared. We have therefore examined whether the reasonableness of the trigger provision.
     
141. In our opinion, for a public health emergency to justify derogating from human rights the situation must be of an exceptional and temporary nature. Moreover, the threat posed by the emergency must be actual or imminent and affect all branches of the life of the community. These factors are extracted from the decision of Lord Bingham in A v Secretary of State for the Home Department,[19] and although that case concerned a terrorist threat we feel that the same criteria need to be satisfied in a public health emergency.
     
142. We consider that, in the present case, the trigger provision incorporates each of these three factors. For instance, before declaring an emergency under clause 259 the Minister must believe that the outbreak of the infectious condition is prospective or already occurring and the effects of the outbreak are likely to cause a serious risk to public health (clause 259). The declaration must be reviewed every 28 days (clause 262) and expires after 90 days (clause 260(2)). The declaration may be extended if the Minister is satisfied that the grounds for declaring the emergency still exist (clause 260(3)), however this power may be exercised only once (clause 260(6)).
     
143. Although a health emergency declared by Order in Council remains in force, unless revoked earlier, for 6 months after it comes into force, we note that such an Order may only be declared if the infectious condition is already occurring in New Zealand (i.e. the outbreak cannot be prospective) and the efforts of the outbreak are causing a serious risk to public health (clause 263(1)). The Bill does not enable the Order to be extended.
     
144. We therefore consider that the trigger provision for the emergency powers in Part 7 is framed in a reasonable way. However, each of the powers that are available once the emergency has been declared must still be a proportionate response to the serious public health risk that has been identified.
     

Section 8: Right not to be deprived of life

145. Clause 278 sets out the powers for setting priorities and conditions during an emergency for the administering, dispensing, prescribing, or supplying of medicines.

146. One of the aspects of being "deprived" of life relates to the concept of "premature death".[20] Being deprived of access to a medicine that is in short supply may cause premature death. In such a case, the first question is whether there is deprivation for the purposes of section 8 of the Bill of Rights, which enshrines the right not to be deprived of life.
     
147. In the New Zealand case of Shortland v Northland Health Limited the Court of Appeal considered the issue of deprivation under section 8. The Court held that the process adopted in that case and the clinical judgments to which it led to refusing to provide dialysis treatment would "deprive" the relevant individual of life in terms of section 8.
     
148. The provision enables the Director-General to set policies determining priorities for medicines. If there is a shortage of medicines during a period where emergency powers may be exercised, the Director-General may give a notice that requires compliance with the stated priorities (for instance, to avoid people stock- piling medicines or obtaining the medicine for non-medicinal purposes). The policy setting out priorities must be published and may be published on the Internet. The priority notice during an emergency must be published in the Gazette.
     
149. The Director-General is obliged under section 3(a) of the Bill of Rights Act to ensure that any activity he or she carries out is consistent, amongst other matters, with the right to not to be deprived of life. This means that the Director-General, when setting priorities for medicine, must ensure that patients will not be unjustifiably deprived of life-preserving medicines. In any case, given the careful process of review and clinical judgment in setting priorities for the dispensing of medicine, it is likely that this will occur.
     

Section 11: Right to refuse to undergo medical treatment

150. The general emergency powers at clause 266(1) provide that a medical officer of health may require persons to report or submit themselves for medical examination at specified times and places. In addition, the general emergency powers require a person to remain in isolation or quarantine until they have been medically examined and found to no longer pose a risk to public health or have undergone preventive treatment (including any specified kind of vaccination) that he or she may require in any case.
     
151. Other provisions that require a person to undergo a medical examination include:
     

• Clause 286(1)(b) which provides that a person who is liable to quarantine must, on request of a specified officer, undergo an examination involving non-invasive procedures;
  
• Clause 289(1) which provides that if a craft arrives in New Zealand carrying a person who is liable to quarantine, a medical officer of health or a health protection officer

may require the person to have a medical examination or require to be taken from the person any bodily sample the officer may reasonably require

152. These provisions are supplemented by clause 279, which makes it an offence to contravene a direction under clause 266(1): the penalty for which is imprisonment for a term not exceeding 3 months or a fine not exceeding $50,000, or to both. Similarly, clause 316 creates an offence to contravene or fail to comply with a direction under clause 286(1) or requirement under clause 289(1): non-compliance with clause 316 is a strict liability offence punishable by a term of imprisonment not exceeding 3 months or a fine not exceeding $10,000.
     
153. The purpose of clauses 266(1), 286(1) and 289(1) is to enable the medical authorities to determine whether a person is suffering from a quarantinable condition or other condition that may be a serious risk to public health and what, if any, follow-up management is required. We consider that these provisions, read in conjunction with clauses 279 and 316, appear to be inconsistent with section 11 of the Bill of Rights Act.
     
154. The Ministry of Health has advised that medical treatment power would be used primarily during the early stages of an epidemic or emergency, when the medical authorities are trying to keep the disease out of New Zealand, and then trying to stamp out initial cases and clusters. According to the Ministry:
     

"The first period will potentially require quarantine, and we will need to be able to target the quarantine to those posing the highest risk, as capacity to quarantine people will not be infinite. This could well mean that some testing will be necessary, in which case if people refuse testing (e.g. if someone has symptoms which may or may not mean they have the relevant infection) then not only they but everyone on the plane would definitely need to be quarantined."

155. The Ministry further commented that testing a person suspected of being exposed to a quarantinable disease or infection will assist the identification and treatment of persons they have come into contact with, which in turn will slow down the spread of the disease. Conversely, testing will reduce the strain that will be placed on the national stockpile of prophylactic medicines. During the early stages of an epidemic or emergency, many people will have symptoms of what may be the disease but turn out to be something else, and thus persons with whom they have come into contact will not need to be prescribed prophylactic medicine.[21]
     
156. We consider the information provided by the Ministry of Health sufficient justification for the prima facie infringement of section 11 of the Bill of Rights Act.
     

Section 14: Freedom of expression

157. We have examined a number of provisions under Part 7 of the Bill for consistency with section 14 of the Bill of Rights: specifically clauses 273, 286, 290(2), 294, 311 and 314 all of which create a power to require information.

158. We note that the requirement to provide information in these clauses is not limited to personal details (name or address). The objective of this Part, however, is human health protection in an emergency or at the border. Considering current trends in international travel and new and emerging threats, there is no dispute as to the importance of this objective and that the collection and supply of information reasonably necessary to manage risks to public health contributes to this objective.
     
159. As part of the justification analysis under section 5 of the Bill of Rights Act, it must be shown that there is a rational and proportionate connection between the powers to require information under Part 7 and the objective of human health protection in an emergency or at the border. The powers set out above are only available where there has been the appropriate trigger: an emergency or person liable to quarantine. Where there is the appropriate trigger, the information sought is generally necessary for the management of a risk to public health. The effect of the prima facie inconsistency is to assist in the management of an emergency or individuals that may be liable for quarantine.
     
160. We note that, with the exception of clause 314, these provisions are qualified by the requirement that the medical officer of health is satisfied that the information is reasonably necessary for the management of the emergency or the epidemic, as the case may be. In relation to clause 314 – which enables a medical officer to obtain information about craft, freight and passengers – the proportionality requirement of the justification test is satisfied by the fact that the person from whom the information is sought is not required to supply any information that might incriminate him or her (clause 314(2)(b)).
     
161. We therefore consider the prima facie inconsistency created by the powers to require information set out in Part 7 of the Bill to be justified under section 5 of the Bill of Rights Act.
     

Section 15: Freedom of religion and belief

162. The general emergency powers set out in clause 266 authorise storage of bodies anywhere and disposal of bodies if the medical officer of health considers it necessary in the interest of public health.
     
163. The religious practices associated with death and care of the body are inherent to most religions. Decisions by the medical officer of health as to the storage and disposal of bodies may be inconsistent with the right to manifest a person's belief in practice. As such, there may be decisions of the medical officer of health that would be prima facie inconsistent with section 15 of the Bill of Rights Act.
     
164. We are of the opinion that the limits that this provision places on the right to freedom of religion are justified in terms of section 5 of the Bill of Rights Act. In reaching this view, we took into account the highly infectious nature of many of the conditions in question which may result in a high number of fatalities. Disposing of bodies quickly will help reduce the risk to the public.

Sections 16, 17 and 18: Freedom of association, peaceful assembly and movement

165. The general emergency powers at clause 266 provide that a medical officer of health may forbid persons, ships, vehicles, aircraft, animals, or things to:
     

• come or be brought to any port or place in the health district from any port or place that is, or is believed to be, affected by the emergency or epidemic;
  
• enter or leave any land, building, or place affected by the emergency or epidemic; or
  
• forbid the removal of ships, vehicles, aircraft, animals, or other things from the health district, or from one port or part of a port to another, or from the place where they are isolated or quarantined, until they have been decontaminated or otherwise treated or examined and found to no longer pose a risk to public health.
  

166. The emergency powers under clause 268 also enable the redirection of aircraft. Further clause 269 enables the closure of all premises in a stated district of any stated kind and to forbid people to gather in outdoor places.
     
167. It can be assumed that, given the expansive interpretation the Courts have given to the rights to movement, assembly and association, there will be prima facie inconsistencies with the Bill of Rights Act involved in the exercise of emergency powers.
     
168. We consider that the limits clauses 266, 268 and 269 place on the right to movement, assembly and association are justified. The objective of these provisions is to prevent, reduce, or eliminate a serious public health risk. This appears to be a significant and important objective. In our view, the management of people's movements and ability to assemble and associate in a public health emergency would be rational and proportionate given that it is often these very activities that increase the risk to public health. When considering the justifiability of these provisions, we note that they do not apply to premises used as a private dwellinghouse or a marae. Nor do they apply to Parliament, the courts, judge's chambers, or prisons (clause 271).
     

Section 19(1): Right to be free from discrimination

169. For the purposes of border health, clause 280 defines "quarantinable condition" as:
     

• a notifiable condition;
  
• any other condition prescribed by regulations made under clause 322 as a quarantinable condition for the purposes of this Act; or
  
• any other condition that in the opinion of a medical officer of health constitutes a serious risk to public health.

170. A quarantinable condition is one of the triggers for a significant number of powers related to border health. Although the definition of quarantinable condition appears neutral on its face, the inclusion of notifiable conditions means that persons suffering from less serious diseases, such as mumps, will be treated the same as those suffering from highly contagious and extremely fatal diseases, such as highly pathogenic avian influenza. This may lead to disadvantage as such persons may be deprived of their civil liberties to a degree that would only be necessary for a much more serious disease. Accordingly, we find this distinction to be prima facie inconsistent with section 19(1) of the Bill of Rights Act.
     
171. We consider, however, that this limitation on the right to be free from discrimination is justified in terms of section 5 of the Bill of Rights Act. In reaching this view, we note that the Bill updates provisions on border health protection by replacing the list of quarantinable diseases of yellow fever, cholera, and plague in the Health Act with an extended list of conditions. The purpose of extending the list of quarantinable conditions is to enable measures to be undertaken in relation to craft, passengers, and goods entering or departing from New Zealand in order to minimise, prevent, or contain risks to public health, and to comply with New Zealand's obligations under the International Health Regulations 2005 promulgated by the World Health Organisation. This is a significant and important objective.
     
172. In seeking to achieve this purpose, the Bill reflects the need to ensure the exercise of powers under the provisions of this Act involves a response that is in proportion to the nature and seriousness of the risk to public health. The Ministry of Health advises us that in practice it is likely that the border health powers would only be exercised in relation to very significant conditions. This is demonstrated by the fact that under the present Health Act the powers have been very seldom exercised. However, it is possible to imagine circumstances may arise where a condition may not necessarily be extremely contagious or necessarily lethal – but there is a high degree of uncertainty about it. It is difficult to foresee in legislative terms all the situations where quarantine may be required.
     
173. In our view, the effect that some, possibly minor, conditions might initially receive the same attention as more serious conditions is a rational and proportional connection to the objective of border health. It is difficult to foresee the degree each condition may imperil public health and then tailor the legislation to that degree. The very nature of situations that may require exercise of quarantine powers requires the flexibility to use a wide range of powers as the emerging situation demands.
     

Section 21: Right to be secure against unreasonable search and seizure

174. We have examined a number of provisions in Part 7 of the Bill for consistency with section 21 of the Bill of Rights Act
     

Emergency powers of entry and inspection

175. Clause 272(1) sets out an emergency power of entry and inspection. This clause allows an officer of health, health protection officer, environmental health officer, or other person authorised by a medical officer of health to enter and inspect any land, premises, or craft. We note that the emergency power of entry and search set out this clause is largely geared towards warrantless searches. A leading commentator on the Bill of Rights Act has noted that a search that has not been conducted pursuant to a warrant is, prima facie, inconsistent with section 21 of the Bill of Rights Act.[22]
     
176. We note that these powers are subject to the general provisions relating to entry and search set out in clauses 352 and 358 of the Bill. Given that the overall nature of the general provisions about entry and search are reasonable, as we explain in paragraphs 215 to 222 below, the focus of the present discussion therefore is whether the purpose of the warrantless searches in Part 7 is justified.
     
177. The objective of the search and entry powers is to enable the relevant authorities to prevent, reduce, eliminate or manage a risk to public health. We consider this to be significant and important objective.
     
178. Under this provision, search and entry powers can only be exercised in a declared emergency or in relation to quarantinable conditions. It is expected that such powers would be exercised under a degree of urgency: that is, time would of the essence to manage the risks posed by infectious diseases and other conditions.
     
179. It is therefore our view that the any prima facie inconsistency arising from the warrantless nature of the searches would be justified given the purpose of protecting public health in New Zealand.
     

Requisition of property

180. Clause 271 enables a medical officer of health to requisition property in order to:
     

• accommodate and treat patients (clause 271(1)(a));
  
• store or dispose of bodies (clause 271(1)(b)); or
  
• transport patients, medical personnel, medicine, food or drink, bedding and other items (clause(1)(c)).
  

181. We understand that this power is necessary since the disruption caused by an outbreak of an infectious disease may place great strain on the equipment and facilities currently in the possession of the Crown. If property can be requisitioned, then the health and civil defence authorities will be in a better position to respond to the outbreak, control its spread, and deal with the social consequences that result (such as lack of food or drink). We consider that this power is reasonable in terms of section 21 of the Bill of Rights Act. In forming this view, we note that the medical officer of health must inform the owner, occupier or other person in charge of the

property in writing that it is being requisitioned, and every person who suffers loss or damage as a result of the requisition of their property is entitled to compensation (clause 363).

Power of the Police to enter and inspect property

182. Clause 275 the Bill enables a member of the Police to do any thing reasonably necessary to assist a medical officer of health exercise his or her emergency powers. Subsection (2) confirms that the powers conferred on the Police include the power to enter into and inspect any land, building, aircraft, ship, or vehicle, and any thing in or on it.
     
183. This power appears to be reasonable in terms of section 21 of the Bill of Rights Act. In reaching this view, we note that, although they do not have to wait until the medical officer requests their assistance, the powers of the Police are tied to those of the medical officer and therefore can only be used to prevent the outbreak or spread of an infectious condition.
     

Infected baggage, cargo or stores

184. Clause 306 of the Bill allows a medical officer of health to do any thing in respect of baggage, bedding, cargo, clothing, drink, equipment, food, linen, luggage, stores, water or other thing that is on or has been removed from a craft and may have been contaminated by a quarantinable condition or notifiable contaminant. We consider that this power appears to be reasonable for the purposes of section 21 of the Bill of Rights Act. In forming this view, we note that the purpose of the provision is to stop the spread of an infectious disease, and the provision does not empower the medical officer of health to enter a private dwellinghouse or marae.
     

Section 22: Right to be free from arbitrary detention

185. Under Part 7 of the Bill individuals can be detained in a variety of circumstances. Each of these is discussed in turn.
     

People liable for quarantine

186. Clause 285 sets out the circumstances in which a person on board, or disembarking a craft is liable for quarantine, which includes every aircraft arriving in New Zealand from any place beyond New Zealand as well as every aircraft at an airport in New Zealand from any affected place in New Zealand. A person liable for quarantine must comply with all directions, requirements or conditions given by the medical officer of health. Failure to comply is an offence punishable by a term of imprisonment not exceeding three months or a fine not exceeding $10,000 or both.
     
187. For the reasons set out in paragraphs 189 and 190 below, we consider that, although this form of detention falls within the ambit of section 22 of the Bill of Rights Act, the provision could not be interpreted as authorising "arbitrary detention".

Detention of people for inspection

188. Clause 287 enables the medical officer of health to detain for inspection any craft (defined to include aircraft and ships) and its passengers and crew where, during its voyage, a person has died or become ill from a quarantinable condition, or death was not attributable to poison or other measures for the destruction of rodents, insects and other vectors present on the craft. Although this form of detention falls within the ambit of section 22, again we do not consider that the provision could be interpreted as authorising "arbitrary detentions".
     
189. We consider that this provision clearly sets out the circumstances in which the power may be used and who may affect the detention. The ability to detain the passengers and crew from a craft on which a person has died or become ill from a quarantinable condition or unknown cause is both necessary and reasonable as it may help identify who among them have been (potentially) exposed to the disease.
     
190. We note that clause 287 does not specify the length of time the passengers and crew of an infected craft may be detained. The Ministry of Health has advised that during an emergency or epidemic a large number of craft may be detained under this provision and this may result in some delay in processing the passengers and crew to determine whether they are liable to quarantine under clause 290. However, we note that a medical officer of health will be required by virtue of section 3 of the Bill of Rights Act to ensure that the passengers and crew are not detained for an unreasonable length of time.
     

Surveillance of certain people liable for quarantine

191. Under clause 290, a person liable to quarantine as well as a person affected by, or has been within the last 14 days exposed to a quarantinable condition may be removed to a hospital or other suitable place and kept under surveillance. This form of detention also falls within the scope of section 22 of the Bill of Rights Act and, again, in our opinion it is arguable whether the provision authorises "arbitrary detentions".
     
192. Removing a person who has been exposed to a quarantinable condition to a hospital or other suitable place is reasonable and necessary as it will ensure that the person is kept apart from other persons during the period that they would be capable of passing on the disease. Similarly, it is reasonable to remove a person suffering from a quarantinable disease to hospital where the person can be isolated from other persons and receive appropriate medical treatment.
     
193. We note that a person must be released as soon as a medical officer of health is satisfied that the person does not have the condition concerned or is not able to pass it on (clause 290(3)(a)(i) and (ii)). Further, a person may only be kept under surveillance for a maximum period of 28 days, although the detention must not continue after 14 days unless the medical officer of health, after considering the

latest information about the disease, is satisfied that the person is still likely to be capable of passing it on (clause 290(4)).

194. We do not consider that these periods are unreasonable. The Ministry of Health has advised that a person liable to quarantine needs to be quarantined for up to two incubation periods of the disease because of the possibility of the person developing asymptomatic infection and then infecting others in the cohort. While it is impossible to predict what the incubation period will be of avian influenza, the incubation period of seasonal influenza is usually 3 days, following which an adult can be infectious for a further 5 days (and a child 7 days). Fourteen days is considered an appropriate period: although it is necessary to provide for a further period of 14 days in case the incubation period of the disease is longer than seasonal influenza. We further note that at any time a person who is detained under clause 290 may appeal to the District Court against the decision of the medical officer of health to require the person to be detained (clause 291).
     

General emergency powers

195. The general emergency powers at clause 266 provide that a medical officer of health may require people to remain in the health district or the place in which they are isolated or quarantined until they:
     

• have been medically examined and found to no longer pose a risk to public health; or
  
• have undergone preventive treatment (including any specified kind of vaccination) that he or she may require in any case.
  

196. We do not consider detention for isolation and quarantine in the time of a public health emergency to be authorizing "arbitrary detentions". Although they are not limited to the border and may be applied throughout the country, these powers may only be exercised where:
     

• an emergency has been declared by the Minister;
  
• an emergency has been declared by the Governor-General, by Order in Council;
  
• a state of emergency has been declared under the Civil Defence Emergency Management Act 2002; or
  
• an epidemic notice is in force.[23]
  

197. These powers are accompanied by a number of procedural protections to ensure the reasonableness of the decision to declare an emergency or put in place an epidemic notice. For instance, a health emergency may only be declared by the Minister of Health if the Minister has reasonable grounds to believe that:
     

• there is throughout New Zealand or in any place or area in New Zealand a serious risk to public health; and

• the exercise of powers in this subpart will help to prevent, reduce, eliminate, or manage that risk.[24]
  

198. Clause 267 contains various safeguards for persons isolated or subject to quarantine under the emergency powers. A person who is quarantined – that is a person affected by, or has been within the last 14 days exposed to, a quarantinable condition – is subject to clause 290 (see paragraphs 191 to 194 above) and, accordingly, is entitled to the benefit of the accompanying safeguards relating to time-limits, mandatory review and right of appeal.
     
199. A person who is isolated is also entitled to various safeguards, most importantly under clause 266(j) the person must be released once he or she has been medically examined and found to no longer pose a risk to public health or has undergone preventive treatment (including any specified kind of vaccination). In any case, the person must not be required to remain in isolation for longer than 28 days (unless a health risk order is made under clause 112 while the person is in isolation).
     
200. Again, this period is not unreasonable given the need to isolate a person for a period sufficient to ascertain whether the person is affected by a condition. Although there is not an automatic right of review (as in the case of persons who are subject to quarantine), the person may request a medical officer of health to review his or her isolation as soon as practicable after the expiry of 14 days after the person is required to be isolated (clause 267(2)(b)). We do not consider the fact that the person needs apply for the review him or herself problematic given the strain that will be placed on the authorities, particularly medical laboratories, to examine persons placed in isolation and process their bodily samples.
     
201. We are concerned, however, that, on the face of the Bill, the trigger for ordering a person into isolation is simply the existence of an emergency in the district in which the person is located or the issuance of an epidemic notice. However, we note that – taking into account section 6 of the Bill of Rights Act which requires provisions to be read consistently with that Act if such a interpretation is possible – the requirement that a person may only be isolated if the person is likely to pose a risk to public health is likely to be read into the provision.
     

Section 23(1)(c): Determining the validity of detention

202. Section 23(1)(c) of the Bill of Rights Act provides that everyone who is detained under any enactment shall have the right to have the validity of the detention determined without delay by way of habeas corpus and to be released if the detention is not lawful. Although individuals may be detained under various powers set out in Part 7, there is sufficient opportunity for the individuals to have the validity of their detention determined to the satisfaction of section 23(1)(c) of the Bill of Rights Act. In addition to being able to apply to the Courts for habeas corpus, persons liable to quarantine may appeal to the District Court against the decision of the medical officer of health to require the person to be detained (clause 291).

Section 25(c): Right to be presumed innocent until proved guilty

203. Offences for non-compliance with the measures set out in subpart 2 – border health are listed at clause 316. These offences are defined by the Bill as strict liability offences. That is, clause 317(1) provides that it is not necessary to for the prosecution to prove that the defendant intended to commit the offence. In addition, clause 317(2) provides that a defence is available if the defendant proves that
     

• the defendant did not intend to commit the offence; and
  
• the defendant took all reasonable steps to prevent the commission of the offence including, (without limitation) steps required to prevent or mitigate any public health risk arising from the matter constituting the offence.
  

204. As stated above, the lack of a mental element in these offences and the presence of a statutory defence give rise to an issue of consistency with section 25(c) of the Bill of Rights Act. This is because there is the possibility that a conviction may result even where there may be doubt as to the defendant's guilt.
     
205. We consider that these offences place a reasonable limit on the right to be presumed innocent until proved guilty by law in terms of section 5 of the Bill of Rights Act. The Ministry of Health has advised that, in their view, these strict liability offences are public welfare regulatory offences. The purpose of these offences is to balance the rights of individuals against the rights of communities and the population in general to be protected against public health risk.
     
206. In the context of border health issues, persons liable to quarantine and those with quarantinable conditions are subject to a certain duty of care that would justify provisions to show why they should not be at fault for actions that may cause a public health risk. Where, however, there is the possibility of incarceration, the prosecution will need to show knowledge or recklessness. This is reflected in the penalty provisions set out in clause 318.
     

Section 27(1): Right to natural justice

207. Section 27(1) of the Bill of Rights Act is engaged by those aspects of the Bill that deal with the use of classified information, as well as provisions that provide decision-makers with a discretion to provide reasons for some of the decisions they make, and prohibit appeals against various decisions made pursuant to the Bill.
     
208. Clause 267 sets out various safeguards for persons isolated or subject to quarantine under the general emergency powers set out in Part 7. These safeguards include the rights of appeal, statutory time limits, and an ability to request a review of the isolation by a medical officer of health.
     
209. We note that the safeguards are only available for the powers under clause 266(g). They are not available for the exercise of any of the other general emergency

powers. There are a number of other significant emergency powers that may impact on civil rights. For example, there are no review provisions attached to the power to require persons to report or submit themselves for medical examination at specified times and places.

210. Given that this safeguard has been expressly included for one general emergency power, it is open to the Courts to conclude that Parliament did not intend to include the right of review for the other powers. We have considered whether this eventuality would raise an issue of consistency with section 27(1) of the Bill of Rights Act.
     
211. As we have stated above, the principles of natural justice vary in accordance with the nature of the power being exercised in particular circumstances. We note that the purpose of the general emergency powers is to manage a public health emergency in New Zealand. In the event of an emergency, it is anticipated that the first line of defence will be the quarantine of large numbers of people. This would especially be the case in the event of large numbers of people arriving in New Zealand by aircraft or by ship during an emergency. The Ministry of Health has advised that the decision to quarantine would often be made by low-level officials in order to effectively manage what may be a difficult situation.
     
212. The Ministry of Health anticipates that the use of quarantine would be more invasive and for a longer period than the other powers available under the general emergency powers. We are of the opinion that as the quarantine powers in an emergency are likely to be employed more frequently and possibly in relation to large numbers of people, it is appropriate that the review mechanisms are limited to persons held in detention and are not available to people affected by other general emergency powers. Again, this does not mean that decisions to impose these other powers can be made in an unfair or arbitrary way, or cannot be the subject of a judicial review or habeas corpus application.
     

PART 8: MISCELLANEOUS PROVISIONS

213. Part 8 of the Bill raises issues of consistency with the sections 21, 25 and 27(3) of the Bill of Rights Act. Compliance orders appear to also raise issues with that Act but due to the broad nature of the order, it is impossible to identify from the face of the Bill exactly which rights may be impacted.
     

Section 21: Right to be secure against unreasonable search and seizure

General power of entry and inspection

214. Clause 326 contains a general power of entry and inspection. The purpose of this power is to enable authorised persons to assess whether the provisions of the Bill, regulations made under the Bill, or any compliance order or other document are being complied with. This provision is subject to the general provisions about entry and search powers contained at clause 345 to 358. Further, an authorised person

may not exercise the powers conferred by this provision to enter a dwellinghouse or a marae unless that person has first obtained a search warrant (clause 327). In our view, this is a reasonable power in terms of section 21 of the Bill of Rights Act.

General regime for entry and search powers

215. The regime governing the process for applying for search warrants and the powers of entry and search, in general, are contained at clause 345 to 358.
     
216. Under clause 345, the general provisions about search warrants govern every warrant applied for, or issued, under this Bill that would enable entry and search of any land, premises, vehicle or other thing. Similarly, under clause 352, the general provisions about entry and search powers govern every warrant issued under this Bill as well as every power of entry and inspection (without warrant) or entry and search (without warrant) conferred under this Bill or regulations made under the Bill.
     

Warranted search powers

217. In our view, the application procedure for obtaining a warrant contains a number of safeguards to comply with the reasonableness requirement of section 21 of the Bill of Rights Act. The warrant regime ensures that searches requiring a warrant:
     

• are conducted pursuant to a warrant;
  
• are issued by any District Court Judge or Justice of the Peace or Community Magistrate or any Registrar (the issuing officer);
  
• state the provisions that authorise the issuing of the warrant; and
  
• are subject to any conditions specified in the warrant that the issuing officer considers reasonable.
  

Warrantless search powers

218. In contrast, the warrantless search powers, as discussed above in the context of Part 7, are prima facie inconsistent with section 21 of the Bill of Rights Act. We have therefore considered whether the warrantless entry and search powers are justified in terms of section 5 of that Act.
     
219. The general provisions about entry and search seek to codify the warrantless powers under the Bill. The provisions allow authorised persons to enter and search property and premises in an effective and efficient manner in order to improve, promote and protect public health. Clause 353 sets out the entry and search powers. The powers contain internal protections specifying that:
     

• the person executing the entry and search must be authorised to enter the place or thing being searched;

• the search may take place at any time that is reasonable in the circumstances;
  
• any force used must be reasonable for the purposes of the entry and search;
  
• the authorised person may only seize those things that are authorised;
  
• the authorised person may bring and use in or on the place or thing searched any equipment, to use any equipment found on the place or thing, and to extract any electricity from the place or thing to operate the equipment that is reasonable to use in the circumstances, for the purposes of carrying out the entry and search;
  
• the authorised person may copy any document, or part of a document, that may lawfully be seized;
  
• the authorised person may take photographs or sound or video recordings of the place or thing searched, and of any thing found in that place, if the authorised person has reasonable grounds to believe that the photographs or sound or video recordings may be relevant in any proceedings related to the entry and search;
  
• the authorised person may seize any item or items found in the course of carrying out the search, if the authorised person has reasonable grounds to believe that he or she could have seized the item or items under any search warrant that could have been obtained by him or her under this Bill or any other entry and search power exercisable by him or her under this Bill; and
  
• the authorised person may secure the scene and/or exclude people in a manner and for the duration that is reasonable for the purposes of carrying out the search.
  

220. The Bill also explicitly provides for the powers and duties of a person exercising an entry and search power (clause 355). These powers and duties include protections to offset the absence of a warrant such as, but not limited to:
     

• announcing his or her intention to enter and search the place or thing;
  
• providing appropriate identification;
  
• providing authority for entry without a warrant (and a written copy later); and
  
• providing an inventory of items seized within 7 days.
  

221. Overall, the powers provided under the general entry and search provisions of the Bill are designed to enable authorised persons to carry out the regulatory functions under the Bill. The purpose of the general entry and search powers is to further public health as considered in each of the eight Parts of the Bill. While the section is titled general entry and search powers, the exercise of the power must be tied to a relevant authority provided in the Bill. The Bill also places limits on the general powers so that the entry and searches are no more intrusive than is necessary to achieve the objective.

222. For these reasons, we consider the prima facie inconsistencies associated with the warrantless searches are justified under section 5 of the Bill of Rights Act.
     

Section 25(c): right to be presumed innocent until proved guilty

223. Clause 369 provides that any prosecution under clauses 30, 42, 169(3), 175(3), 195(2), 197(3), 198(2), 209(3), and 274 is for a strict liability offence but that the following defence is available:
     

• that the defendant did not intend to commit the offence; and
  
• that the defendant took all reasonable steps to prevent the commission of the offence including, (without limitation) steps required to prevent or mitigate any public health risk arising from the matter constituting the offence.
  

224. As was discussed above in Part 7, the lack of a mental element in these offences and the presence of a statutory defence means that the offences listed in clause 369 appear to raise issues of inconsistency with section 25(c) of the Bill of Rights Act. We consider, however, that any limitation that these offences place on the right to be presumed innocent is justified.
     
225. All of the listed offences, save clause 274 (non-compliance with requisition in a declared emergency), are either public regulatory or licensing regime offences. The objective of the regulatory offences is to protect the public from harm from what may otherwise be lawful activities. Examples of this include preventing nuisances and providing notification of listed conditions. A similar objective sits behind the offences for licensed activities. With respect to non-compliance with a requisition offence, we consider that this offence is aimed at ensuring that in the event of an emergency the relevant authorities have access to the things needed to manage the emergency even when the Crown's resources are not able to cope with the situation. These are all significant and important objectives.
     
226. With respect to the regulatory offences, the limit placed on the right to be presumed innocent is justified. In reaching this conclusion, we note for instance that nuisances (which are included in the listed offences) are defined as an activity or state of affairs that is, or is likely to be, injurious to public health. A nuisance is often within the unique knowledge of the person concerned. Similarly, the need to provide notification is integral to public health and is often only within the knowledge of the person concerned.
     
227. The Bill also deals with a number of licensed or regulated activities that may cause a risk to public health. As there may be risks associated with these activities, there is a duty of care that the person involved inherently accepts. Given this, it is appropriate that the persons concerned have to show why they were not at fault.
     
228. Lastly, satisfying the need for resources to manage a public health emergency is a very important objective. The requisition must be served on the owner or occupier or other person for the time being in charge of the relevant thing. Non-

compliance – which may seriously affect the ability of the medical officer of health to manage the emergency – then becomes something within the knowledge of the people involved.

Section 27(3): Rights of individual in civil proceedings with Crown

229. Clause 361 provides that a person is not liable for anything done by him or her in good faith or with reasonable care in the exercise of any of the provisions in the Bill or any regulations made under the Bill. It could be argued that this provision raises an issue of consistency with section 27(3) of the Bill of Rights Act, which provides:
     

"(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals."

230. We do not consider that there is any inconsistency with the rights of individuals in civil proceedings with the Crown. We have reached this conclusion after considering the scope of section 27(3), which can be interpreted in two ways. It could be argued that section 27(3) goes to substantive liability and so impacts on Parliament's ability to determine that the Crown shall not be liable for conduct which, without the exclusion, could create liability. Alternatively, it could be said that section 27(3) was only procedural in effect, and means simply that the procedure to be adopted in any proceedings against the Crown will be the same as that applicable in litigation between private parties.
     
231. In Matthews v Ministry of Defence[25], the House of Lords had to consider whether section 10 of the Crown Proceedings Act 1947 (UK), which exempted the Crown from liability in tort for injury suffered by members of the armed forces in certain circumstances, was compatible with Article 6(1) of the European Convention on Human Rights.[26] Their Lordships held that the Crown's exemption from liability in tort was a matter of substantive law, so that the claimant had no "civil right" to which Article 6(1) might apply. Their Lordships treated the limitation on liability in section 10 as going to the substantive claim (i.e. it did not exist), rather than creating a procedural bar. Article 6(1) was, in principle, concerned with procedural fairness and the integrity of a State's judicial system, and not with the substantive content of its national law.
     
232. The analysis in Their Lordships' speeches is consistent with the view that clause 361 does not infringe section 27(3). This conclusion is supported by the history of Crown liability in New Zealand and the many provisions which afford protection to officials acting in the course of their duties in good faith and, in some instances, without negligence.

Compliance orders and the Bill of Rights Act

233. Under clause 329, a medical officer of health, health protection officer or environmental health officer (the 'relevant Officer') may issue and serve a compliance order on any person. A compliance order may require a person to do or stop doing anything that the officer believes on reasonable grounds:
     

• contravenes, or is likely to contravene, any specified provision under the Bill or regulations;
  
• will or may create a significant risk to public health;
  
• is necessary to ensure compliance by, or on behalf of, that person with a specified provision under the Bill or regulations; or
  
• is necessary to prevent, remedy, or mitigate any significant risk to public health.
  

234. It is an offence for someone, without reasonable excuse, to fail to comply with a compliance order. Upon summary conviction, such a person is liable to a fine not exceeding $1,000.
     
235. Due to the immense breadth of public health issues that may arise, a compliance order has the potential to be prima facie inconsistent with numerous rights under the Bill of Rights Act. In order to ascertain whether compliance orders may be justified, it is therefore necessary to consider the process in abstract with reference to the procedural safeguards rather than specific examples.
     
236. The Ministry of Health has advised that compliance orders are a very useful 'low level' mechanism for resolving complaints, especially in relation to nuisance where the only statutory option presently available to resolve a nuisance is prosecution. In situations where a nuisance might be relatively easily or inexpensively 'fixed', a compliance order is most useful in persuading the individual to fix the problem.
     
237. Compliance orders are intended to act as an alternative to prosecuting a complaint or infringement of the Bill where such a prosecution would be excessive. We consider this to be a significant and important objective.
     
238. While the subject matter and conditions that may be dealt with by a compliance order are limitless, various safeguards are present and a specific appeal process available. For instance, clause 331 provides that every compliance order must contain certain information including but not limited to the name of the person to whom it is addressed, the reasons for the order, and the action required to be taken, stopped, or not taken.
     
239. Under clause 334, compliance orders may be varied or cancelled. However, the relevant Officer may only do so after having regard to:

• the purpose for which the compliance order was issued;
  
• the effect of a change or cancellation on that purpose; and
  
• any other matter that the medical officer of health or health protection officer or environmental health officer considers appropriate.
  

240. A person on whom a compliance order is served has the right to appeal to the District Court against the whole or any part of that order (clause 332). That person may also apply for a stay of the order from the District Court pending approval (clause 333). In addition, a person making a request to the relevant Officer to change or cancel the order may also appeal to the District Court where the changes are other than what was sought by that person (clause 335).
     
241. Compliance orders will further the objectives of the Bill and protect against significant risks to public health through an accessible mechanism for relevant Officers to carry out their duties and responsibilities under the Bill. Further, the appeal processes will help protect against any possible excesses under the order. Lastly, the offence provisions are minimal and appropriate given the wide range of issues an order may address.
     
242. For these reasons, we consider that the procedural safeguards attached to the issuance of compliance order ensure that any possible prima facie infringement is a justifiable limit under section 5 of the Bill of Rights Act.
     

THE SCHEDULES OF THE BILL

Schedule 1 of the Bill

243. Schedule 1 of the Bill raises an issue with section 19(1) of the Bill of Rights. This Schedule lists the notifiable conditions and epidemic diseases and by so doing provides a trigger for many of the powers under the Bill.
     

Section 19(1): Intra-ground disability discrimination

244. Part 1 to Schedule 1 of the Bill lists notifiable conditions. Under the Bill there is an obligation on specified persons to provide information on conditions posing risks to public health, in particular notifiable conditions.
     
245. The notification process is different for different groups of notifiable conditions. For instance, details identifying the person may not be contained in the notification in the case of AIDS, while identifying details may be included in the event of a person with anthrax. This creates a disadvantageous distinction between different types of conditions.
     
246. We have examined whether the resulting discrimination on the grounds of disability (which includes disease) is justified.

247. The Ministry of Health has commented that while there is often a negative stigma associated with all diseases, this is particularly the case with sexually transmitted diseases ('STDs') such as AIDS, chlamydia, gonorrhoea, HIV, and syphilis

– none of which require the disclosure of personal information. Preserving a degree of anonymity in the context of individuals suspecting that they have a STD would encourage these individuals to come forward and seek medical help.

248. We note however that the protection of a degree of anonymity for certain STDs and not for other diseases is not absolute. Under clause 39 of the Bill, where the disclosure of identifying particulars is not authorised by the Bill, it may only be done if disclosure is reasonably required in a particular circumstance to enable:
     

• the treatment of the person whose identifying particulars they are; or
  
• action to be taken to protect public health.
  

249. The discrimination, therefore, ends where it is reasonably required to disclose identifying particulars for treatment of that person or for protection of public health. The limit encourages those who may suspect having an STD to seek treatment with the promise of a degree of anonymity but this difference with other conditions comes to an end once the information is required for treatment or public heath. We therefore consider this instance of prima facie discrimination to have a rational and proportional connection between the provision and the objective.
     

CONCLUSION

250. Overall, we have formed the view that the Public Health Bill appears to be consistent with the Bill of Rights Act. In reaching this conclusion, we have given particular emphasis to specific purposes for each Part of this legislation, and to the general purpose of the Bill to improve, promote and protect public health in order to help attain optimal and equitable health outcomes for all population groups,

including Māori.

Footnotes

1 See Moonen v Film Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 and R v Oakes (1986) 26 DLR (4th)

2 R v Keegstra [1990] INSC 224; [1990] 3 SCR 697,729,826

3 RJR MacDonald v Attorney-General of Canada (1995) 127 DLR (4th)1 4 Ross v New Brunswick School District No 15 [1996] 1 SCR 825

5 See W v Egdell [1990] 1 All ER 833

6 R v Harris [2000] 2 NZLR 524, 527 (CA)

7. Butler and Butler, The New Zealand Bill of Rights Act: A Commentary (LexisNexis: Wellington, 2005), at 555 (para 18.11.5)
   
8. Irwin Toy Ltd v A-G (Quebec) (1989) 58 DLR (4th) 577 (SCC)
   
9. RJR MacDonald v Attorney-General of Canada (1995) 127 DLR (4th) 1; see on this point the dissenting judgment of La Forest J.
   
10. See Richard Claydon & Hugh Tomlinson, The Law of Human Rights (Oxford University Press, Oxford, 2000), Vol. 1, 15.171 - 15.176.
    
11. See Rishworth et al, The New Zealand Bill of Rights (2003) at 256. 12 See E Wicks, Human Rights and Healthcare (Hart Publishing (2007)) 13 Logan v United Kingdom (1996) 86 DR 74 (ECommHR)
14. Butler, at 409 (para 14.7.3)
    
15. See Butler at 418 (para. 14.9.12)
    
16. Neilsen v Attorney-General [2001] NZCA 143; [2001] 3 NZLR 433 (CA) para 34
    
17. Application no 56529/00 (25 January 2005)
    

18 84 DLR (4th) 161, 188 citing R v Oakes [1986] 1 SCR 103.

19 [2004] UKHL 56

20. Butler at 215 (para 9.4.12).
    
21. Much of this information was provided in the context of the advice concerning the Law Reform (Epidemic Preparedness) Bill.
    
22. Butler at 592 (para 18.25.1)
    
23. Clause 264(1)
    
24. Clause 259(1)
    

25 [2003] UKHL 4; [2003] 2 WLR 435

26 Article 6(1) provides that in the determination of his or her civil rights everyone is entitled to a fair hearing by an independent and impartial tribunal established by law.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Public Health Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.