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Health (Protection) Amendment Bill (Consistent) (Sections 11, 14, 16, 17, 18, 22, 25(c)) [2014] NZBORARp 24 (25 July 2014)
Last Updated: 24 March 2019
Health (Protection) Amendment Bill
25 July 2014
Hon Christopher Finlayson QC, Attorney-General
Legal Advice
Consistency with the New Zealand Bill of Rights Act 1990:
Health (Protection) Amendment Bill
Purpose
- We
have considered whether the Health (Protection) Amendment Bill (PCO
17831/3.0)
(‘the Bill’) is consistent with the rights
and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the
Bill of Rights Act’).
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 11 (right to refuse medical
treatment), s 14 (freedom of expression),
s 16 (freedom of peaceful assembly), s
17 (freedom of association), s 18 (freedom of movement), s 22 (liberty of the
person), and
s 25(c) (right to be presumed innocent).
The Bill
- The
Bill amends the Health Act 1956. Part 1 aims to improve the range of measures to
protect the public from the harm associated with certain infectious diseases. It
increases
the range of infectious diseases that are “notifiable”,
provides a series of incremental options for the management of
individuals with
infectious diseases, and allows the tracing of people who have, or may have, an
infectious disease.
- Part
2 aims to protect young persons from the harmful effects of artificial UV
tanning by introducing a ban on the commercial provision
of such services to
people under 18 years of age.
Consistency with the Bill of Rights Act Threshold and overarching
principles
- Part
1 of the Bill inserts a new Part 3A into the Health Act, which increases the
range of measures available to protect the public from the harm associated with
certain infectious diseases.
Many of these measures give rise to prima facie
inconsistencies with the Bill of Rights Act. In determining that these measures
are
justified under s 5 of the Bill of Rights Act, we have primarily relied on
two aspects of the Bill.
- The
first aspect is the threshold for exercising the measures. The majority of the
measures can only be exercised if the decision
maker considers that an
individual poses, or
may pose, a “public health risk”,
which is defined as a substantial risk of serious harm to the health or safety
of others.
- The
second aspect is the overarching principles that ensure that the measures are
applied within a human rights framework. The following
principles are to be
taken into account by every person and court performing a function under new
Part 3A: 1
- An individual
should, where possible, be given the opportunity to voluntarily comply with
measures to reduce the public health risk
they pose before measures are
imposed.
- Where
alternative measures are available, preference must be given to the least
restrictive measure that will achieve the objective
of minimising the public
health risk posed by the individual.
- An individual in
respect of whom a measure is exercised is required to be treated with respect
and consideration, to the extent this
is possible while protecting public
health.
- Individuals are
required to be kept 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 or to apply for judicial review.
- Any measure
should not be applied for longer than is necessary to minimise the public health
risk posed by the individual.
Section 11 - Right to refuse medical treatment
- The
Bill contains new powers to require individuals to undergo a “medical
examination” or “treatment”, which
prima facie engage s 11 of
the Bill of Rights Act (right to refuse medical treatment). Section 11
“protects the idea that every
individual has the right to determine for
themselves what they do or not do to their own body, free from restraint or
coercion.”
2
- A
medical officer of health (MOH) may direct an individual to undergo one or more
medical examinations to determine whether the individual
has an infectious
disease if the MOH believes, on reasonable grounds, that:
- the individual
may have the infectious disease;
- the individual
has failed to comply with a request by the individual’s medical
practitioner or the MOH to undergo a medical
examination within a specified
period; and
- if the
individual has the infectious disease, the individual would pose a public health
risk.
- Similarly,
a District Court may, if satisfied of the same matters, make an order directing
the individual to undergo whatever medical
examinations the MOH considers
necessary to determine whether the individual has the infectious disease.
- A
District Court may also impose, as a requirement of a public health order, that
the individual be treated by a specified health
provider. Public health orders
can be contingent on the outcome of medical examinations being positive.
- We
consider that the potential limitations on the right to refuse medical treatment
are justified under s 5 of the Bill of Rights
Act because of the importance of
the objective of identifying and managing public health risks, and because the
threshold for exercising
the measures in the Bill and the principles governing
their use ensures this is the least restrictive response. In addition, we note
that:
- any medical
examination must be conducted in accordance with current best practice and be
the least invasive necessary to establish
whether the individual has the
infectious disease; and
- a District Court
can only impose a treatment requirement if satisfied that this is the only
effective means, short of indefinite detention,
of managing the public health
risk posed by the individual.
Section 14 – Freedom of expression
- The
Bill includes provisions requiring individuals, who are subject to supervision
because of the public health risk they pose, to
provide their supervisor with
information on any action, occurrence, or plan that is relevant to that risk.
This potentially limits
the right to freedom of expression under s 14 of the
Bill of Rights Act.
- The
Bill also creates a new “contact tracing” regime that allows
officials to obtain
information about the contacts of a person with
an infectious disease for the purpose of:
- identifying the
source of the disease;
- making the
contacts aware that they may be infected; and
- limiting the
transmission of the disease to others. 3
- This
regime allows a “contact tracer” to require individuals with
infectious diseases to provide information about persons
they have been in
contact with, and to provide identifying information, including the names,
addresses and other details of those
contacts. It also allows the contact tracer
to require certain other persons, such as the individual’s employer, to
provide
names and addresses of contacts that they are aware of. Non- compliance
with a direction to provide information is an offence punishable
by a fine not
exceeding $2,000.
- We
consider that the potential limitations on freedom of expression are justified
under s 5 of the Bill of Rights Act. The right to
freedom of expression is
primarily intended to protect
the right to political speech and
opinion. Persons required to provide information under the Bill 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). In light of
the
importance of minimising public health risks, the safeguards provided by the
Bill, and the limited manner in which this right
is restricted, we consider that
the Bill strikes a reasonable balance between potential limitations on the right
to freedom of expression
and the benefit of protecting public health.
- In
regard to the “contact tracing” regime, we also note that:
- there is a
requirement to consider whether contact tracing is appropriate before exercising
the power; and
- the contract
tracer is, as far as practicable, required to keep the identity of the person
with the infectious disease confidential.
Sections 16, 17 and 18 – Freedom of peaceful assembly, association and
movement
- If
a MOH believes, on reasonable grounds, that an individual poses a public health
risk, or a person they have been in contact with
may pose a public health risk
because they may have been infected, the MOH can make directions, including
requiring the person to:
- stay at a
specified place of residence;
- refrain from
carrying out specified activities;
- be supervised by
a person at a specific place; and
- refrain from
going to specified places absolutely or with conditions.
- Similarly,
a District Court may, if satisfied that an individual poses a public health
risk, make a public health order imposing the
same requirements.
- These
provisions are prima facie inconsistent with ss 16 (the right to freedom of
assembly), 17 (the right to freedom of association)
and 18 (the right to freedom
of movement) of the Bill of Rights Act. We have considered these rights
together.
- We
note that the directions and orders are time limited to a maximum of 6 months
and must be regularly reviewed by a MOH to assess
whether they are still
necessary. While the directions and orders can be extended, this can only be
done if there continues to be
a public health risk that cannot be addressed by
voluntary compliance or a less restrictive measure.
- We
consider that the limitations on ss 16, 17 and 18 are justified under s 5 of the
Bill of Rights Act. These rights aim to ensure
that individuals are able to
organise for political or ideological reasons. This is not the context in which
the Bill restricts these
rights, which is to effectively manage public health
risks. In addition, the overarching principles ensure that the restriction of
these rights is demonstrably justified in a free and democratic
society.
Section 19 – Freedom from discrimination
- Clause
13 of the Bill amends the Health Act to ban, and make it an offence to provide,
commercial artificial UV tanning services to persons under 18 years of age.
- This
clause raises issues of inconsistency with s 19(1) of the Bill of Rights Act,
which states that “everyone has the right
to freedom from discrimination
on the grounds of discrimination in the Human Rights Act 1993”. Section
21(1)(i) of the Human
Rights Act prohibits discrimination by age.
- We
consider that any potential inconsistency with s 19 is justified under s 5 of
the Bill of Rights Act. The Ministry of Health notes
that evidence shows
overexposure to UV rays can increase the probability of health risks including
skin cancer, especially in young
people. While the distinction between young
people of 17 years and 18 years is necessarily arbitrary, it is legitimate to
use an
age limit where it is not practical to engage in individualised
assessments, as long as the restrictions are rationally connected
and
proportionate to the objective. The age limit in the Bill minimises the health
risks of artificial tanning to individuals until
adulthood, which is
proportional to the objective and consistent with other age-based restrictions,
such as those on the purchase
of alcohol and tobacco.
Section 22 - Liberty of the person
- A
number of provisions in the Bill provide for the detention of individuals,
including:
- requiring an
individual to stay, at all times or at specified times, at a specified place of
residence;
- where there is
an urgent public health order, requiring an individual to be detained at
specified premises; and
- where there is a
public health order, requiring an individual to be detained, at all times or at
specified times, in a hospital or
other suitable place.
- Section
22 of the Bill of Rights Act provides that "everyone has the right not to be
arbitrarily arrested or detained." 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." 4
- We
do not consider that the Bill authorises "arbitrary detention". In reaching this
view, we have taken account of the European Court
of Human Rights ruling in
Enhorn v Sweden 5 regarding the detention of individuals suffering from
an infectious disease. In that case, 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
one of last resort; and
- the detention
must be lifted as soon as possible once the person no longer poses a threat to
the public.
- We
consider that these provisions are consistent with s 22 of the Bill of Rights
Act. The powers of detention in the Bill can only
be exercised if a MOH or a
District Court considers that an individual poses, or may pose, a public health
risk. The most significant
detention powers can only be authorised by a District
Court (with the exception of short-term urgent public health orders) and only
if
the individual is considered to actually (as opposed to potentially) pose a
public health risk. In addition, the overarching principles
(see para 8) will
also ensure that the different forms of detention are only used where no less
restrictive measure would be sufficient
and that the individual is detained no
longer than necessary.
Section 25(c) - Right to be presumed innocent
- The
Bill contains three strict liability offences. The Bill makes it an offence
to:
- fail, without
reasonable excuse, to comply with directions of a medical officer of health (cl
7, new s 92R);
- fail, without
reasonable excuse, to comply with directions to provide information for
“contact tracing” (cl 7, new s 92ZZC);
and
- provide
artificial UV tanning services to a person under the age of 18 (cl 13, new s
114).
- The
maximum penalty for the first two offences is a fine not exceeding $2,000. The
maximum penalty for the third is a fine not exceeding
$2,000 (for an individual)
or $10,000 (for a body corporate).
- The
first two offences prima facie engage section 25(c) (presumption of
innocence) because an accused is required to raise an evidential basis for a
reasonable excuse
to escape liability. The third offence prima facie
engages section 25(c) because it puts the onus on the defendant to prove
that the person being supplied the UV tanning services produced
a document
purporting to be an approved evidence of age document indicating that the person
was aged 18 or over.
- We
consider that these limitations on the presumption of innocence are justified
under section 5 of the Bill of Rights Act. In reaching
this conclusion, we have
taken into account:
- the importance
of the objectives of reducing the spread of serious infectious disease and the
harm of UV tanning to young people;
- the nature of
the offences and relatively low level of the maximum penalties; and
- that, where the
onus is on the defendant, the defendant will usually be in the best position to
provide the relevant evidence or to
prove the
matter.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Tania Warburton
Acting Chief Legal Counsel Office of Legal Counsel
Footnotes
- New
ss 92B – 92F
- Sylvia
Bell (ed.) Brookers Human Rights Law (online looseleaf ed, Brookers) at
BOR11.01. 3 Subpart 5 of new Part 3A
- Neilsen
v Attorney-General [2001] NZCA 143; [2001] 3 NZLR 433 (CA) at para [34].
- Application
no 56529/00 (25 January 2005).
Disclaimer
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 Health (Protection) Amendment 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.
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