This blog post is part of our Frequently Asked Legal Questions series.
Recently, Laney wrote about the laws associated with some of the measures China is taking to contain the novel coronavirus (SARS-CoV-2), which causes the disease COVID-19, as well as about police reprimand powers for spreading rumors about the virus. Graciela has written about the laws on quarantine and isolation in Spain. Others at the Law Library have published Global Legal Monitor articles related to the actions taken in other countries. In this post, I look at some of the strategies, laws, and powers available in New Zealand with respect to attempting to keep the virus out of the country and containing its spread among the community. One case of the virus in the country was confirmed in late February, a second case was confirmed on March 4, a third on March 5, and a fourth on March 6. (New Zealand time).
1. What is the legal and policy framework for responding to the coronavirus outbreak?
The New Zealand government has activated the New Zealand Influenza Pandemic Plan: A Framework for Action (NZIPAP) in response to the novel coronavirus. This document, which was updated in 2017, sets out the stages, actions, roles, and legislative powers involved in responding to an influenza pandemic. Although it focuses on pandemic influenza, the plan notes that “the approach in the plan could reasonably apply to other respiratory-type pandemics.” In addition, individual government agencies “have their own response plans, manuals, handbooks and standard operating procedures based on the NZIPAP, each of which provides information in addition to that contained in the NZIPAP.” Furthermore, the NZIPAP is
one part of the wider New Zealand emergency management framework, which is governed by several Acts and regulations. The relationship between health emergency planning and planning in the wider emergency management sector is detailed in the National Health Emergency Plan, which provides overarching direction to the health and disability sector and all of government.
Pandemic planning in New Zealand, according to the NZIPAP, is based around three overarching goals related to protecting New Zealand’s people, society, and economy during and after a pandemic, and involves a six-phase strategy:
- Plan For It (planning and preparedness)
- Keep It Out (border management)
- Stamp It Out (cluster control)
- Manage It (pandemic management)
- Manage It: Post-Peak
- Recover From It (recovery).
The NZIPAP provides details on the triggers, objectives, and actions related to each phase. It also provides details about the relevant laws, and the specific roles and powers assigned to various agencies under those laws, which apply under different “work streams” (e.g., health, education, law and order, welfare, border, etc.). In addition, it outlines the Public Information Management Strategy that “allows the Ministry of Health to explain what it is doing and to advise the public as the pandemic progresses.”
The various legislative powers are discussed in detail in part C of the NZIPAP. The compulsory measures available include the following:
- requirements for people to be tested and screened
- quarantining or isolating people (that is, removing symptomatic or non-symptomatic people to a quarantine or treatment facility or prohibiting them from leaving a particular facility)
- restricting the movement of people into or out of an area
- restricting travel of people (within or out of New Zealand)
- imposing a duty to supply information (eg, future travel plans or past travel history)
- requirements on people to undergo preventive treatment
- requirements on people not to go to work or other public places or to do so only under certain conditions
- commandeering of resources (eg, land, buildings or vehicles).
A number of infectious disease management powers are provided in part 3A of the Health Act 1956, which was added by the Health (Protection) Amendment Act 2016. Part 3 (infectious and notifiable diseases) and part 4 (quarantine) of the Health Act are also relevant. Additional powers are “available under the Epidemic Preparedness Act 2006 to facilitate the management of serious epidemics of specified diseases.” There are also powers under the Civil Defence Emergency Management Act 2002 that apply in a state of emergency declared under that Act.
The “routine” and “special” powers in the Health Act can be exercised with respect to the diseases listed in schedule 1 of that Act. Other health legislation relevant to managing a pandemic includes
- Health (Infectious and Notifiable Diseases) Regulations 2016
- Health (Burial) Regulations 1946
- Health (Quarantine) Regulations 1983
- Cremation Regulations 1973
- Health Practitioners Competence Assurance Act 2003
- Medicines Act 1981 (and regulations made under that Act)
- New Zealand Public Health and Disability Act 2000.
2. What actions has the government taken to date?
On January 30, 2020, the government published the Infectious and Notifiable Diseases Order 2020, which “amends the Health Act 1956 by adding the novel coronavirus to the list of infectious diseases notifiable to a medical officer of health in Section B of Part 1 of Schedule 1 of that Act.”
The government has set up a dedicated phone number for coronavirus advice as part of the existing Healthline service, and the Ministry of Health is providing health advice, news updates, and other information on its website. This includes fact sheets and guidance for health professionals, advice for travelers, and information for other groups and gatherings.
A few days prior to the addition of the coronavirus to schedule 1, public health staff began meeting flights from China “to actively look for signs of the novel coronavirus and provide advice, information and reassurance to passengers.” The Interagency Pandemic Group had also previously convened, the Ministry of Health had an Incident Control Team in place, and the government stated it was “sharing information and working closely with international partners.” In early February, the government chartered a flight to evacuate New Zealanders, Australians, and Pacific Islanders from Wuhan, China. The measures applied in that context included “pre-flight checks, in-flight safety measures and isolating passengers for 14 days upon arrival in New Zealand.” The passengers from New Zealand and the Pacific, totaling 157 people, were put in isolation at the Whangaparoa Reception Centre, north of Auckland. New Zealanders who had been on the Diamond Princess cruise ship were also later housed at the facility.
As part of the “Keep it Out” phase under the NZIPAP, the government has taken a range of border measures, including issuing revised travel advisories and putting in place travel restrictions. On February 2, the government announced that it was “placing temporary entry restrictions into New Zealand on all foreign nationals travelling from, or transiting through mainland China.” New Zealand citizens and residents who traveled from China after February 2 were asked to register with the Healthline service and to self-isolate for 14 days. The same travel restrictions and self-isolation requirements were put in place with respect to Iran on February 28, and the registration and self-isolation requirements were applied from March 2 to people entering the country form South Korea and northern Italy. The travel restrictions are regularly reviewed.
The government has announced initiatives to assist businesses impacted by the coronavirus and has agreed to remove the income support stand-down period for those who lose their jobs as a result of the virus. A welfare support fact sheet, covering all government assistance available to people affected, was published in February.
In terms of the current cases of the coronavirus confirmed in the country, the first involved a person who arrived from Iran on February 26. The individual was placed in isolation in Auckland Hospital for treatment. Contact tracing was commenced and close contacts were put in isolation and tested for the virus. The second case involved a person who returned to Auckland from northern Italy. The person and her family members were isolated at home and authorities started to trace other contacts. The third case involved a person with close family members who had recently returned from Iran. He and his family members were also self-isolated at home. The Ministry of Health stated that “[t]wo schools have also been notified about the positive test as there is a family member at each of those schools” and “[t]he students who attend these schools are now at home in isolation.” The fourth case involved the partner of the second case.
3. What quarantine and isolation powers apply to notifiable infectious diseases such as the novel coronavirus?
The NZIPAP states that
[c]ompulsory or voluntary isolation of cases and quarantine of contacts are important measures to prevent or slow the spread of a pandemic virus at all phases of a pandemic response, particularly in the context of border and cluster control. Compulsory isolation and quarantine may be considered for cluster control for the first New Zealand suspected or diagnosed cases, but in practice, this is probably no more effective than voluntary quarantine.
The Health Act 1956 includes a provision on voluntary compliance as part of the overarching principles that apply to the management of infectious diseases:
92D Voluntary compliance
(1) If an individual poses a public health risk, and that risk can be prevented or minimised by the individual’s voluntary compliance with certain measures, the individual must be given the opportunity to voluntarily comply with those measures before measures under this Part are applied to the individual.
(2) A person or court exercising or performing any functions, duties, or powers under this Part must take into account whether the individual has had an opportunity to minimise the risk of transmitting the infectious disease, and whether he or she has done so, or the extent to which he or she has done so, particularly in response to—
(a) any directions given to the individual:
(b) any request or instruction from a medical practitioner, medical officer of health, or health protection officer.
(3) Individuals and communities should be encouraged to take responsibility for their own health and, to that end, to participate in decisions about how to protect and promote their own health and the health of their communities.
The power of a medical officer of health to detain a person for isolation purposes is a “routine power” under part 3A of the Health Act. Such powers do not normally need approval or authorization for use. According to the NZIPAP, this power
allows a medical officer of health to issue a written direction to a person or contact whom the officer believes on reasonable grounds poses a public health risk arising from an infectious disease (section 92I to section 92L). Section 92I outlines a variety of conditions the officer may specify in the direction, including to stay at all or specified times at a specified place of residence, subject to specified conditions. The direction must specify its duration. Directions cannot be used to compel the person to seek treatment under Part 3A. For that to happen, the officer must apply for and be granted a treatment order under that Part. However, a medical officer of health may issue a directions to a person undergo a medical examination, although several preconditions must first be met (eg, person has not complied with a previous request to seek examination; section 92K).
Other powers related to isolation, quarantine, examination, and treatment are “special powers” under the Act that require prior authorization (e.g., from the Minister of Health) before they can be used.