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COVID-19 Public Health Response Bill (Consistent) (Sections 14, 16, 17, 18, 21, 25(c)) [2021] NZBORARp 52 (14 September 2021)
Last Updated: 26 September 2021
Report of the
ATTORNEY-GENERAL
under the New Zealand Bill of Rights Act 1990 on the COVID-19 Public Health
Response Amendment Bill
14 September 2021
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: COVID-19 Public Health
Response Amendment Bill
- I
am satisfied that the COVID-19 Public Health Response Bill is consistent with
the rights and freedoms affirmed in the New Zealand
Bill of Rights Act 1990 (the
Bill of Rights Act). There are a number of provisions in the Bill which engage
rights or freedoms protected
by the Bill of Rights Act. I have concluded that
any limitation they pose on rights are reasonably justifiable under s 5 of the
Bill
of Rights Act.
Section 14 – Freedom of Expression
- New
section 32T of the Bill requires a person in MIQF to provide their contact
information for the purpose of invoicing MIQF charges.
The provision also
requires people to update their contact details as soon as practicable if their
details change before payment
of any MIQF charges. A failure to comply with
either of these requirements is an infringement offence.
- Section
14 of the Bill of Rights Act, the right to freedom of expression, is engaged by
this provision. This includes the freedom
to seek, receive, and impart
information and opinions of any kind and in any form. This right has been
interpreted as including the
right not to be compelled to say certain things or
provide certain information.1 I have considered whether
the provision can be reasonably justified in terms of s 5 of the Bill of Rights
Act. The s 5 inquiry asks
whether the objective of the provision is sufficiently
important to justify some limitation on the freedom of expression; and if
so,
whether the limitation is rationally connected and proportionate to that
objective and limits the freedom of expression no more
than reasonably necessary
to achieve that objective2.
- Section
14 (freedom of expression) is engaged and the right is limited because the Crown
is using its coercive powers to compel a
person to provide information through a
criminal offence in order to recover money owing to MIQF, which is a civil
debt.
- The
immediate objective that s 32T of the Bill serves is to facilitate the invoicing
of people who have used MIQF. This supports the
wider objective of supporting
the economic sustainability of the MIQF system, and in turn achieving an
economically sustainable response
to COVID-
19. These objectives are
related to the important primary objective of managing the public health risks
of COVID-19. It is the primary
objective of managing public health risks that
has been singled out by academic commentators as being an objective that is
sufficiently
important to justify proportional limits on
rights3.
- At
a conceptual level, there is a rational connection between being able to invoice
people for their MIQF stay and making MIQF economically
sustainable.
1 See, for example, Slaight
Communications v Davidson 59 DLR (4th) 416;
Wooley v Maynard [1977] USSC 59; 430 US 705 (1977).
2 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1
at [123].
- Andrew
Butler and Petra Butler in New Zealand Bill of Rights Act: A Commentary
(2nd ed, LexisNexis, Wellington, 2015) at
[16.6.18].
- The
proposed infringement offence for failure to provide or update contact
information is in due proportion to the objective of ensuring
MIQF is
economically sustainable. Entrants to MIQF come to New Zealand with the
knowledge that they are expected to pay fees for
their stay, and there is no
legitimate reason to avoid paying this debt.
- I
note that the MIQF system has been set up at pace as part of the pandemic
response, meaning operational processes are not fully
developed. The collection
of information for invoicing purposes should, in the long run, ideally be
addressed through enhancements
to MBIE’s operational systems. However, in
the short-term, other measures are reasonably necessary in this context,
including
a criminal penalty at the extreme end of regulatory measures. I also
note that MBIE has advised that they are moving towards being
able to issue
invoices to people during their stay in a MIQF, which would provide another
avenue to work around the issue of information
provision for the purposes of
invoicing.
- For
these reasons, I have concluded that the Bill appears to be consistent with the
right to freedom of expression in s 14 of the
Bill of Rights Act due to this
provision.
Section 25(c) – Right to be presumed innocent until proven
guilty
- Proposed
s 32 of the Bill creates an offence for failing to comply with the requirement
to remain in one’s room in MIQF, or
other place of isolation or
quarantine, except in accordance with specified exceptions (new section
32P(6)).4
- Clause
13 of the Bill replaces s 26 of the principal Act and provides that a person
commits an infringement offence if they do anything
specified as an infringement
offence in the Act or in a COVID-19 order, or breaches a rule made under new s
32Q about the operation
of MIQFs. New s 26(4) provides that a person who commits
an infringement offence is liable for:
- a
$4,000 fee and $12,000 fine for an individual or any lesser or equal amount
prescribed in regulations, or
- a
$12,000 fee and $15,000 fine for any other person or any lesser or equal amount
prescribed in regulations.
- New
s 33 provides that regulations may be made by the Governor-General prescribing
fees and fines for infringement offences that are
no more than the maximum
amount specified in s 26. However, it is not a requirement for regulations to be
made. If these regulations
are not made, or until such time that they are made,
the default penalties set out above will apply.
- Because
infringement offences are strict liability offences they prima facie
limit s 25(c) of the Bill of Rights Act, which affirms the right to be
presumed innocent until proven guilty. This is because a strict
liability
offence may be proved by a finding that certain facts occurred without proof of
mens rea. The accused is required to prove a defence (on the balance of
probabilities), or disprove a presumption, to avoid liability.
- Although
infringement offences do not result in a criminal conviction,5
the Court of Appeal in Henderson v Director, Land Transport New
Zealand held that the rights in ss 24 and 25 of the Bill of Rights Act apply
to minor offences dealt with under the infringement notice
regime.6
4 It is an offence on conviction to
intentionally fail to do so (section 32P(5)).
5 Section 375(1)(a) of the Criminal Procedure Act
2011.
6 [2005] NZCA 367; [2006] NZAR 629 (CA).
- The
penalties in the Bill are higher than those generally recommended for
infringement offences. The Legislation Guidelines set out
that, in general,
infringement fees should not exceed $1,000.7 However,
there are exceptions to this rule and there are infringement provisions in New
Zealand legislation that impose penalties
in excess of
$1,000.8
- I
have considered in particular whether the penalties for the offence are
proportionate to the importance of the Bill’s objective.
- The
infringement offence in section 32P arises when individuals in MIQF, or other
places of isolation or quarantine, fail to remain
in their room except for
authorised purposes. Individuals are required to be in those places due to
either testing positive to COVID-19
or being considered at high risk of having
been exposed to COVID-19 (either through travelling outside of New
Zealand’s borders,
or having been in proximity of an individual who has
tested positive for COVID-19).
- Requiring
high risk individuals to stay in their room is rationally connected to the
public health objective of preventing the outbreak
or spread of COVID-19.
- In
addition, a person who leaves their room for an authorised activity but fails to
comply with conditions imposed by the chief executive
of the agency responsible
for MIQF (the Chief Executive), would also be committing an infringement offence
under s 32P(5). There
is no statutory limit on types of conditions that can be
imposed, for which a breach of conditions may be low risk. However, it is
foreseeable that the types of conditions imposed on persons leaving their room
for an authorised purpose will be conditions directly
related to the public
health objective (for example mask wearing requirements, social distancing etc).
The Bill of Rights Act applies
to conditions made by the Chief Executive meaning
conditions which are inconsistent with the Bill of Rights Act will be ultra
vires.
For these reasons, I consider an infringement offence related to breach
of such conditions is also rationally connected to the public
health
objective.
- I
consider that the infringement offence in s32P is a justifiable limit on section
25(c) because:
- the
offences are in the nature of a public welfare regulatory offence and do not
result in a criminal conviction;
- the
defendant is in the best position to justify their apparent failure to comply
with the law; and
- the
penalty for the offence is proportionate to the importance of the Bill’s
objective.
- As
discussed above, new section 32T of the Bill also creates an infringement
offence for individuals who fail to provide, or keep
updated, contact details
for the purposes of invoicing MIQF charges. Being able to invoice individuals
for their MIQF stay is important
to retaining an MIQF system which is
economically viable. An economically sustainable response to COVID-19 is
connected to managing
the public health risks of COVID-19. The COVID-19 pandemic
continues to constitute an exceptional situation in respect of a virus
that has
been shown to have extreme impacts on public health and wellbeing. This context
continues to necessitate the utmost caution
being taken to protect public
health.
7 Legislation Guidelines
(18th edition) at 25.2.
- Legislation
Guidelines (18th edition) Chapter 25. The guidelines
make it clear that these are exceptions to the general principle and should not
operate as precedents
for new infringement offence regimes.
- For
these reasons I consider these infringement offences are a justified limitation
on the presumption of innocence and the penalties
are proportionate as they are
tied to an important public health objective. Accordingly, the limit that
sections 32 (P) and 32T may
place on the right on the right to be presumed
innocent until proven guilty according to law are justified under section 5 of
the
Bill of Rights Act.
Sections 16, 17 and 18 – Freedom of peaceful assembly,
freedom of association and freedom of movement
- Section
16 of the Bill of Rights Act provides that everyone has the right to freedom of
peaceful assembly, s 17 that everyone has
the right to freedom of association,
and s 18(1) that everyone lawfully in New Zealand has the right to freedom of
movement and residence
in New Zealand.
- Sections
11(1)(b) and 32P are designed to restrict movement of individuals to, from and
within MIQF and other places of isolation
or quarantine. The proposed new s
22(3A) gives a constable the power to stop a vehicle at any roadblock or
checkpoint established
for the purpose of enforcing or monitoring compliance
with a COVID-19 order which restricts movement of persons. New section 22(5)
extends this power to enforcement officers, provided that they are acting under
the supervision of a constable.
- These
new sections prima facie limit an individual’s right to move freely,
assemble and associate. Nevertheless, the Bill may
be consistent with the Bill
of Rights Act if the limitations are necessary and can be justified in a free
and democratic society.9
- The
purpose of new sections 11(1)(b) and 32P are to restrict movement of individuals
to, from and within MIQF and other places of
isolation or quarantine. Those
individuals are at higher risk of spreading COVID-19 in the community and the
utmost caution must
be taken to protect public health. The power granted to
constables and enforcement officers to stop vehicles at a checkpoint serves
the
important objective of enforcing and monitoring compliance with an order that
restricts movements of persons, for the purpose
of preventing transmission of a
serious public health risk is an important objective.
- COVID-19
is transmitted through physical proximity. Restricting the movement of
individuals moving to, from or within places of isolation
or quarantine, and
accordingly their ability to assemble, associate and move freely is rationally
connected to the public health
objective of preventing, containing, reducing,
controlling, managing, eliminating or limiting the risks of an outbreak, or the
spread,
of COVID-19.
- The
Bill aims to enable the public health response to COVID-19 to continue to
function in a co-ordinated and orderly way. A number
of the restrictions on
individuals moving to, from and within MIQF already exist operationally or
through the existing orders made
under the principal Act. It is more suitable
for these restrictions to sit in primary legislation to ensure transparency and
proportionality
of any restrictions on the rights and freedoms contained in the
Bill of Rights Act. Any discretionary decision-making powers that
these new
sections provide for must be made in a manner consistent with the Bill of Rights
Act.
- A
constable or enforcement officer exercising the power in section 22(3A) to stop
a vehicle, may only do so where a road block or
checkpoint has been established
for the purpose of enforcing or monitoring compliance with an order that
restricts movements of persons,
a power which I consider reasonably necessary to
minimise movement in and out of areas where COVID-19 is, or is likely to be,
present
in the community. Restricting movement through the use of authorised
road blocks and checkpoints for the purposes of containing an
outbreak, or
preventing the spread, of COVID-19 is rationally connected to the public health
objective.
9 Section 5 of the Bill of Rights Act.
- The
Bill provides for extensive limits on freedom of association, assembly and
movement. However, in the context of a global pandemic,
these powers reflect the
significant risk that COVID-19 poses to the public health and wellbeing of
individuals in New Zealand. The
limitation on freedom of association, assembly
and movement for a limited period is in due proportion to the public health
response.
The principal Act already provides for a number of significant
safeguards to ensure that when orders are made consideration is given
to the
public health concerns, rights and freedoms affected, and wider social
interests. Orders may only be made where a risk of
transmission remains and must
be kept under review. These safeguards ensure that powers are used transparently
and are subject to
public and parliamentary scrutiny.
- For
these reasons, the limits that section 11 (1)(b), 22 and 32P (1) may place on
the rights and freedoms of movement, peaceful assembly
and association are
justified under section 5 of the Bill of Rights Act.
Section 21 – Right to be free from unreasonable search and
seizure
- New
s 32S provides the Chief Executive the power to seize and hold items people may
possess (or have delivered) in an MIQF in breach
of the rules – for
example, alcohol in excess of the limits. While I consider that this provision
engages s 21 of the Bill
of Rights Act, the right to be free from unreasonable
search and seizure, I consider that the limit on the right is reasonably
justified,
- This
provision would allow the Chief Executive to seize and hold items that may pose
a risk to the health and safety of individuals
in MIQFs, which may require the
intervention of MIQF staff and/or the congregation of individuals within MIQF
(for example, if restricted
goods cause an incident requiring the building to be
evacuated) and thereby heighten the risk of transmission if the individual is
infectious with COVID-19. Mitigating the risk of COVID-19 transmission from
those in MIQF facilities to the community is a sufficiently
important public
policy objective to justify the use of some seizure powers in this context.
- The
ability to seize items is proportionate to the purpose of the provision in
ensuring the effective and orderly operations of MIQFs,
and in doing so
mitigating the risk of COVID-19 transmission from MIQ facilities to the wider
community. The seizure power is also
accompanied by adequate safeguards to
ensure it will not be exercised unreasonably. These include that the Chief
Executive must be
satisfied that rules are a justified limit under the BORA,
items can only be held until the end of a person’s stay and the
powers can
only be exercised where there are reasonable grounds to believe there is a
breach of the rules.
Conclusion
- I
am satisfied that the COVID-19 Public Health Response Bill is consistent with
the rights and freedoms enshrined in the Bill of Rights
Act.
Hon David Parker
Attorney-General
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