1.2 The legal context | Covid-19 Lessons Learned

Main Report

Download report 16 MB

1.2 The legal context | Te horopaki ā-ture

As an Inquiry, we could not review the key response decisions made during the relevant period without understanding the legal framework in which government decisions are made. It includes the common law, the principles of equity and the statutes enacted by Parliament.

The elementary components of New Zealand's legal framework are affirmed by the Constitution Act 1986. They comprise:

the Executive branch of government
the legislature (the Governor-General and the House of Representatives, which together make up Parliament)
the independent judiciary.

1.2.1 Separation of powers and the rule of law | Te wehenga o ngā mana me te mana o te ture

It is a basic principle of the common law that the three main branches of government have separate functions. Each should normally operate within its designated sphere of authority.³⁵ This provides a system of checks and balances which guards the stability of the state. Any undue intermingling of the functions of the three branches of government runs counter to the safeguards provided by the separation of powers. A fundamental tenet of the common law is that governments should operate within the principles that comprise the rule of law.

1.2.2 The legislative framework before COVID-19 | Te tūāpapa ture i mua i te KOWHEORI-19

When COVID-19 emerged as a global threat in early 2020, New Zealand's main legal tool for responding to an infectious disease outbreak was the Health Act 1956. Then and now, the Act provides various powers that can be used to protect public health when such diseases break out or spread.³⁶

Early public health measures aimed at combatting COVID-19 were put in place using these existing statutory powers.³⁷ Government relied chiefly on sections 70 and 71 of the Health Act, which gave special powers to the medical officer of health (a medical practitioner whom the Director-General of Health designated for that role) in specific circumstances. For example, when authorised by the Minister of Health, when a state of emergency had been declared, or when an epidemic notice was in force, the medical officer of health could require people to enter quarantine or isolate and order public places and businesses to close.³⁸

Additional powers appear in Part 6 of the Health Act, which contains provisions authorising the government to make regulations by means of Orders in Council. These regulations – which may apply nationwide or to specific places³⁹ – can require people to be vaccinated and schools to close, restrict public gatherings and the movement of traffic, and more^.40 The Act's regulation-making powers are written very broadly and no specific triggering event is required to use them. But (unlike most of the powers given in section 70 of the Act)⁴¹ the regulations are subject to some constraints, set out in Part 6. For example, they may be rejected by a vote in the House of Representatives⁴² and can be challenged in court.

Two other Acts of Parliament were part of the initial legislative framework. The Epidemic Preparedness Act 2006 was introduced with the express purpose of ensuring government and business infrastructure and processes can continue in an epidemic (or pandemic).⁴³ It does so by providing extraordinary legal powers – including the power to temporarily modify laws by Orders in Council rather than by Parliament – to enable a rapid and flexible response to serious epidemics. Such powers can only be exercised if the Prime Minister first issues a time-limited epidemic notice. Epidemic notices also trigger the use of powers under the Health Act and the COVID-19 Public Health Response Act 2020 (see section 1.2.3 below).

The final element of the initial legislative framework supporting the COVID-19 response was the Civil Defence Emergency Management Act 2002. It authorises the relevant Minister to declare a state of national emergency across the entire country or in specified areas.⁴⁴The trigger is an actual or pending emergency that 'causes or may cause loss of life or injury or illness or distress or in any way endangers the safety of the public or property', and that cannot be dealt with by emergency services or otherwise needs a significant and co-ordinated response. The definition of an 'emergency' encompasses a wide range of situations, including epidemics and pandemics.⁴⁵ Although the Act does not itself contain powers specific to managing public health risks in a pandemic, it was relevant in the early COVID-19 response because it triggered the use of Health Act powers (and, later, powers available under the COVID-19 Public Health Response Act 2020).

Collectively, this was the legal framework under which the alert level framework was developed and, in March 2020, the first Alert Level 4 lockdown came into effect. Phase One of the Inquiry concluded that this existing framework 'broadly gave the Government the key initial legislative powers it needed' to manage the emerging pandemic.⁴⁶ However, very soon, the scale, severity and possible duration of the COVID-19 pandemic meant the framework was no longer fit for purpose.

1.2.3 The COVID-19 Public Health Response Act 2020 | Te Ture Urupare Hauora Tūmatanui mō te KOWHEORI-19 2020

1.2.3.1 The purpose of the Act | Te whāinga o te Ture

From May 2020, the COVID-19 Public Health Response Act provided the legal framework for responding to the pandemic. It was repealed in 2024, making the Health Act 1956 once again the governing legislation in the event of an infectious disease outbreak.

The COVID-19 Public Health Response Act was introduced into Parliament on 12 May 2020 and came into force a day later. Because it was introduced under urgency, it was not referred to a select committee for the normal review and submissions process.⁴⁷

According to a briefing provided to the Attorney-General at the time, the Act was drafted to allow (among other things):

a proactive and precautionary approach to managing public health risks
the ability to use powers flexibly to respond to changing risks and developments and, in particular, powers to make legal orders on a wide range of matters.⁴⁸

Officials also said the new Act had been drafted to recognise that – while 'health factors' were necessarily central to whatever measures the Government introduced to manage the pandemic – economic and social factors needed to be considered when deciding those measures too.⁴⁹

When the Act came into effect, SARS-CoV-2 (the strain of coronavirus causing COVID-19) was still a relatively new virus. Its health consequences for individuals and populations were severe, as overseas experience had shown. No vaccines were available. For all these reasons, legislation enabling a strong public health response was clearly needed. At the time the COVID-19 Public Health Response Act was being drafted, however, Parliament could not have known for how long that response would have to be sustained as COVID-19 continued to spread and mutate. The Act was always intended to be repealed when no longer required. Its original duration was no more than two years from enactment⁵⁰ (that is, it would remain in force until May 2022) but this was subsequently extended to 13 May 2023.⁵¹ Ultimately, the Act was not fully repealed until 26 November 2024.

These repeated extensions illustrate something which was emphasised by the decision-makers and several officials we interviewed during Phase Two. The next pandemic may again be a 'marathon' and last for a long time.⁵² The legislative framework supporting the response needs to be capable of going the distance, regardless of the pandemic's duration and changing circumstances.

1.2.3.2 Powers under the Act | Ngā mana e whakawhiwhia ana e te Ture

A distinctive feature of the Minister's role under the COVID-19 Public Health Response Act was the ability to make Orders for an extremely wide range of purposes. Orders could 'require persons to refrain from taking any specified actions that contribute or are likely to contribute to the risk of the outbreak or spread of COVID-19, or require persons to take any specified actions, or comply with any specified measures, that contribute, or are likely to contribute, to preventing the risk of the outbreak or spread of COVID-19'.⁵³ The potential scope of COVID-19 Orders became broader still in November 2021, when Parliament strengthened this section so that Orders could now be made 'to avoid, mitigate, or remedy the actual or potential adverse public health effects' of COVID-19 rather than just 'preventing' an outbreak or the risk of the virus spreading.⁵⁴

The Orders that ministers made under the COVID-19 Public Health Response Act were similar to regulations. But unlike most regulations, these were not made by Order in Council: the power to make Orders under the COVID-19 Public Health Response Act was given directly to the Minister. We will return to this point later when examining specific response decisions. For now, we note only that – through the COVID-19 Public Health Response Act and its subsequent amendments – Parliament gave unusually broad powers to the Minister to make Orders. These Orders restricted or compelled people and their behaviours in ways that were extremely far-reaching.

1.2.3.3 Safeguards | Ngā tikanga whakahaumaru

The powers available to the Minister may have been broad but they were not unqualified. They could be exercised only if certain conditions – some mandatory and some permissible – were met. In the period we are reviewing, the Minister:⁵⁵

was required to have regard to advice from the Director-General of Health about the risk of COVID-19 outbreaks or spread, and measures that would be appropriate to address those risks⁵⁶
was permitted to have regard to any decision by the Government (that is, Cabinet) 'on the level of public health measures appropriate to respond to those risks and avoid, mitigate, or remedy the effects of the outbreak or spread of COVID-19 (which decision may have taken into account any social, economic, or other factors)'
was required to be satisfied the Order did not limit, or was a justified limit on, rights under the New Zealand Bill of Rights Act. This condition was not included in the original version of the Act: it was added in August 2020
was required to consult the Prime Minister, Minister of Justice, and Minister of Health, and was permitted to consult any other minister
was required to be satisfied that the Order 'is appropriate to achieve the purpose of this Act' (discussed further in section 1.2.3.5 below).

Another safeguard was that, unless Parliament resolved otherwise, orders would be revoked at the end of a defined 'relevant period'.⁵⁷ The Act also required ministers to keep orders 'under review'⁵⁸ – a provision that the High Court considered reflected 'a legislative intention to monitor the justifications for orders in light of changing circumstances.'⁵⁹ Finally, orders made under the COVID-19 Public Health Response Act were subject to the same Parliamentary review process (carried out by the Regulations Review Committee) as ordinary regulations.

In a written submission to the Inquiry, Hon. Chris Hipkins emphasised the importance of these safeguards, saying '[t]here were times when an order would be changed as a result of feedback from the Regulations Committee, and the Government welcomed those changes'.⁶⁰

1.2.3.4 Additional provisions for vaccine mandates | Ngā whakaritenga tāpiri mō ngā whakature kano ārai mate

Two new sections (11AA and 11AB) were added to the COVID-19 Public Health Response Act on 25 November 2021. These sections addressed the making of COVID-19 orders specifically in relation to workplace vaccine mandate orders. The powers available under the two new sections could be exercised either by the Minister for Workplace Relations and Safety or the Minister for COVID-19 Response.

The requirements for making vaccine mandate orders under these new sections differed from those applying to mandate orders made before December 2021. When orders were made under section 11AA, there was no provision for the Minister to 'have regard to' Government decisions (although consultation with the Prime Minister and other relevant ministers was required) and no requirement to have regard to the Director-General of Health's advice. However, the Minister was now subject to a new requirement: he or she had to be satisfied that the Order was 'in the public interest'.⁶¹The Minister still had to be satisfied that the Order was appropriate to achieve the Act's purpose and did not contravene the Bill of Rights Act.

Significantly, the new provisions did not require vaccine mandate orders to be justified on public health grounds. This was deliberate, as a Cabinet paper proposing the provisions made clear. There were other reasons beyond public health 'to support employers and PCBUs⁶² to take necessary steps to prevent COVID-19 exposure and transmission in workplaces (like ensuring overseas market access)', the paper said.⁶³

1.2.3.5 Requirements to consider the potential impact of decisions | Ngā herenga kia āta whakaaro ki ngā pānga ka hua ake i ngā whakatau

A central issue in this phase of the Inquiry is whether key response decisions (including decisions to make orders) were informed by advice on their likely health, social and economic impacts. If so, how did decision-makers balance these potential impacts when choosing between options? The COVID-19 Public Health Response Act⁶⁴ required this in two ways.

First, when making an Order under either section 11 or 11AB, the Minister had to be satisfied that the Order was appropriate to achieve the Act's purpose – namely, to 'support a public health response to COVID-19' that, among other things:

prevented and limited the risk of COVID-19 outbreak or spread
avoided, mitigated, or remedied the adverse effects of COVID-19 (whether actual or potential, direct or indirect)
was co-ordinated, orderly and proportionate
allowed social, economic, and other factors to be taken into account where it was relevant to do so; and
was economically sustainable.⁶⁵

The Act's purpose therefore encompassed factors beyond public health alone (although the original version did not refer to social or economic factors, or economic sustainability: they were added by an amendment in August 2020).⁶⁶ Requiring the Minister to ensure that a section 11 Order would support these goals was therefore an important constraint, as several commentators noted when the Act was being reviewed.⁶⁷

Second, sections 9 and 11AA of the COVID-19 Public Health Response Act required the Minister to consider the impact of orders on people's rights and freedoms (including social and economic impacts). In other words, the Minister had to be satisfied that an Order did not limit rights and freedoms under this statute – or, if it did limit them, then that limitation had to be justified.⁶⁸ Although an Order could be legally challenged, it could not be ruled invalid by the courts just because it was inconsistent with the Health Act 1956 or other legislation, apart from the New Zealand Bill of Rights Act 1990.⁶⁹

1.2.3.6 A new regime for managing pandemics | He kaupapa whakahaere hou mō ngā mate urutā

The introduction of the COVID-19 Public Health Response Act 2020 was a significant step. It signalled a more modern (albeit temporary) approach to managing pandemics than that available under the existing legislative framework, which relied heavily on the Health Act 1956. That statute had very quickly proved inadequate in the face of a global event on the scale of COVID-19.

The powers set out in the new legislation differed significantly from those in the Health Act in several important ways. Broadly, Health Act powers are intended to be exercised by doctors and apply to infectious individuals and their close contacts, in specified places and in response to a wide range of infectious and notifiable diseases. By contrast, the powers contained in the COVID-19 Public Health Response Act could be exercised by politicians – a deliberate and significant departure from the Health Act.

Other significant similarities and differences between the two Acts can be summarised as follows:

Both Acts contain similar powers aimed at preventing and containing the outbreak or spread of disease – for example, powers requiring people to be tested or enter quarantine, and powers to close specified premises.
Orders made under the COVID-19 Public Health Response Act were subject to more checks and balances than orders made under section 70 of the Health Act. They had to be in writing, published and regularly reviewed; orders were also time-limited. They could not limit or affect the application of the New Zealand Bill of Rights Act. By contrast, the Health Act contains minimal procedural safeguards, opportunities for review or oversight of orders.⁷⁰

In Part 3 of this report, we consider the lessons learned from the introduction and use of the COVID-19 Public Health Response Act, and what principles might underpin the governing legislation we rely on in another prolonged pandemic.

1.2.4 The human rights framework | Te tūāpapa mō ngā mōtika tangata

Concern about human rights featured prominently in the feedback the Inquiry received in early 2024 about possible new terms of reference. Many submitters argued that certain pandemic decisions (especially on vaccine mandates and lockdowns) had infringed fundamental rights and freedoms, and therefore warranted more scrutiny. We heard similar concerns again in engagements with individuals, organisations and communities.

Several major crises and emergencies since the start of the twenty-first century have demonstrated how significantly such events – and the response to them – can impact citizens' human rights. For example, the Human Rights Commission described the Canterbury earthquakes of 2010 and 2011 as not only catastrophic natural disasters but 'one of New Zealand's greatest contemporary human rights challenges'.⁷¹ Decisions made during the earthquake response and recovery phases had the potential to impinge on people's economic, social, civil and political rights – especially those who were already vulnerable or disadvantaged.⁷² Likewise, the Royal Commission of Inquiry into the Christchurch mosques attacks in March 2019 advised decision-makers to consider the human rights consequences when assessing response options in similar situations in future. While the violent terror inflicted that day was of course an assault on the most fundamental right of all (the right to life), so too could 'mistargeted and disproportionate state responses' endanger human rights, the Inquiry said.⁷³

Our assessment of the key pandemic decisions therefore includes the impacts (actual and potential) on New Zealanders' human rights. As further context, we therefore briefly outline the framework established to recognise and protect human rights in New Zealand.

This country's human rights framework comprises domestic laws, international laws and various United Nations human rights treaties, declarations, resolutions and other legal instruments New Zealand has ratified over several decades. Te Tiriti o Waitangi – which the Human Rights Commission has called 'New Zealand's original human rights declaration'⁷⁴ – also forms part of the framework. Te Tiriti aligns with many of the international human rights instruments New Zealand has adopted.

The New Zealand Bill of Rights Act 1990 is central to the country's human rights framework.⁷⁵ It affirms a range of fundamental human rights and freedoms, including the right to refuse to undergo medical treatment (section 11), freedom of expression (section 14), and freedom of movement (section 18).

Importantly, the rights and freedoms recognised in the New Zealand Bill of Rights Act are not absolute. They are subject to 'such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society' (section 5) and may be subservient to other Acts of Parliament (section 4). Unlike other countries where rights are deeply entrenched and/or protected by written constitutions,⁷⁶ the rights affirmed in the Act can be overridden by ordinary laws passed by a simple majority vote in Parliament. While views differ on whether this is a strength or a weakness in New Zealand's constitutional arrangements, it means our human rights framework is considered to be moderately flexible.

The outbreak of a disease that seriously threatens the health of the population is an obvious situation where the individual rights safeguarded in the Bill of Rights Act may be limited by public health measures. We regularly saw examples during COVID-19, where decisions to use lockdowns and certain travel requirements restricted people's freedom of movement within New Zealand, and the right of citizens to enter the country. In making such difficult trade-offs, decision-makers are guided by the principles of international human rights law, which set out when and how public health measures may limit rights. As the Human Rights Commission explained in November 2021, such measures:

... must be specifically aimed at preventing disease. They must also be provided for, and carried out in accordance with, the law and be strictly necessary in a democratic society to achieve their objective. They must be proportionate, reasonable, non-discriminatory, and subject to independent review. There must be no less intrusive and restrictive means available to reach the public health objectives. They must also be based on scientific evidence. Additionally, public health resources must be mobilised in the most equitable manner and should prioritise the needs of marginalised or vulnerable groups.⁷⁷

1.2.5 Emergency powers | Ngā mana ohotata

Under our legal system, Parliament has essentially unlimited power to make and unmake the laws of the land. This doctrine is called 'parliamentary sovereignty'. Although the legitimacy of this concept is sometimes challenged – including in some submissions received by this Inquiry – the sovereignty of Parliament remains a firmly embedded principle in New Zealand's legal system.

Parliament's unfettered authority to make and unmake laws extends to passing legislation giving ministers or officials broad emergency powers that would usually be unjustifiable in normal circumstances – including the authority to make decisions that restrict people's fundamental rights and freedoms. However, the actions of government under such legislation must still be consistent with the rule of law. Among other things, this means ministers and officials must 'exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably'.⁷⁸ Any 'coercive' actions or 'encroachments on … liberty' by government must always be justified in law.⁷⁹

As a check, the government's actions are subject to the scrutiny of the courts. If someone considers the government has not exercised its public powers lawfully, they can seek a ruling from the courts through the process of judicial review⁸⁰ – something which occurred several times during the COVID-19 pandemic.⁸¹

The emergency powers given to the government under the COVID-19 Public Health Response Act 2020 and secondary legislation (including what became known as COVID-19 orders) were unusually broad. They enabled wide-ranging, mandatory infection control measures to be used and enforced. For example, the Minister of Health and the Director-General of Health could issue section 11 orders requiring isolation and quarantine, travel restrictions, COVID-19 testing and reporting, mask-wearing, physical distancing and closure of businesses and services. Later, the COVID-19 Response (Vaccinations) Legislation Act 2021 broadened the scope of these orders so that people could be required to produce a vaccination certificate to enter certain premises.

The orders that could be made under the Act could have the effect of significantly restricting the fundamental rights of New Zealanders – although, as we have already noted, section 13 made it clear that this did not 'limit or affect the application of the New Zealand Bill of Rights Act' or prevent COVID-19 orders from being legally challenged.⁸² As the Phase One report pointed out, the courts thereby retained 'their inherent supervisory jurisdiction to rule that the exercise of a statutory power' – in an emergency situation or otherwise – was 'invalid if it was not "demonstrably justified in a free and democratic society"' as the New Zealand Bill of Rights Act required.⁸³

³⁵ Legislation Design and Advisory Committee, Legislation Guidelines (2021 edition), last updated September 2021, Chapter 4 Part 1, https://ldac.org.nz/guidelines/legislation-guidelines-2021-edition/constitutional-issues-and-recognising-rights-2/chapter-4

³⁶ Health Act 1956 (as at 27 August 2025), https://www.legislation.govt.nz/act/public/1956/0065/223.0/DLM305840.html

³⁷ The exercise of those powers, including their scope, were challenged in *Borrowdale v Director-General of Health* [2020] NZHC 2090. The Court determined that the powers were inappropriately exercised for the first nine days of the first lockdown because they were not exercised by the Director-General of Health.

³⁸ Health Act 1956 (as at 27 August 2025), ss 70 and 71, https://www.legislation.govt.nz/act/public/1956/0065/latest/DLM307083.html and https://www.legislation.govt.nz/act/public/1956/0065/latest/DLM307201.html

³⁹ Health Act 1956 (as at 27 August 2025), s 122, https://www.legislation.govt.nz/act/public/1956/0065/latest/DLM308445.html

⁴⁰ Health Act 1956 (as at 27 August 2025), s 117, https://www.legislation.govt.nz/act/public/1956/0065/latest/DLM307994.html

⁴¹ This was the case as of March 2020. However, amendments to this section in late 2021 did clarify a publication requirement, and designate notices to be secondary legislation.

⁴² Legislation Act 2019 No 58 (as at 1 July 2025), Subpart 2 s 117, https://www.legislation.govt.nz/act/public/2019/0058/latest/DLM7298430.html

⁴³ Epidemic Preparedness Act 2006 (as at 3 November 2021), s 3, https://legislation.govt.nz/act/public/2006/0085/latest/DLM404464.html

⁴⁴ Civil Defence Emergency Management Act 2002 (as at 27 August 2025), s 66, https://www.legislation.govt.nz/act/public/2002/0033/latest/DLM150776.html

⁴⁵ Civil Defence Emergency Management Act 2002 (as at 27 August 2025), s 4, https://www.legislation.govt.nz/act/public/2002/0033/latest/DLM149796.html

⁴⁶ NZ Royal Commission of Inquiry into COVID-19 Lessons Learned: Phase One, Main Report (2024), Appendix A1 Section 1.1, https://www.covid19lessons.royalcommission.nz/reports-lessons-learned/main-report/appendices/a-an-overview-of-legislation-emergency-plans-systems-and-structures-supporting-the-covid-19-response

⁴⁷ The Act was however reviewed by Parliament's Finance and Expenditure Committee in July 2020.

⁴⁸ COVID-19 All-of-Government Policy Strategy and Co-ordination Unit, Briefing to the Attorney-General: Next Steps: COVID-19 Response Bill (2 May 2020), https://www.dpmc.govt.nz/sites/default/files/2023-01/AL27-Next-steps-COVID-19-Response-Bill-redactions-applied.pdf, paras 3, 8

⁴⁹ Cabinet Paper, COVID-19 Public Health Response Bill – Approval for Introduction (11 May 2020), https://www.dpmc.govt.nz/sites/default/files/2023-01/AL11-Paper-and-Minute-COVID-19-Public-Health-Response-Bill-Approval-for-Introduction-11-May-2020.pdf, para 8

⁵⁰ COVID-19 Public Health Response Act 2020 (as at 26 November 2024), s 3 (as enacted), https://www.legislation.govt.nz/act/public/2020/0012/30.0/LMS344600.html

⁵¹ COVID-19 Public Health Response Amendment Act 2021, s 4, https://www.legislation.govt.nz/act/public/2021/0048/26.0/LMS552308.html

⁵² NZ Royal Commission of Inquiry into COVID-19 Lessons Learned: Phase Two, interview with Rt. Hon. Chris Hipkins (15 September 2025)

⁵³ COVID-19 Public Health Response Act 2020, section 11(1)(a), https://www.legislation.govt.nz/act/public/2020/0012/30.0/LMS344177.html

⁵⁴ Parliament strengthened Section 11 on the advice of the Health Select Committee. See House of Representatives, Health Committee, *Final report on the COVID-19 Public Health Response Amendment Bill (No 2)* (11 November 2021), https://selectcommittees.parliament.nz/view/SelectCommitteeReport/843bb575-c13e-4997-90cc-fb2b0eab5fee, p 4

⁵⁵ See s 8 of the COVID-19 Public Health Response Act 2020, which lists additional conditions (not included here): https://www.legislation.govt.nz/act/public/2020/0012/latest/LMS344174.html

⁵⁶ Note that s 9(2) clarifies that: 'Nothing in this section requires the Minister to receive specific advice from the Director-General about the content of a proposed order or proposal to amend, extend, or revoke an order.' COVID-19 Public Health Response Act 2020, https://www.legislation.govt.nz/act/public/2020/0012/latest/LMS344175.html

⁵⁷ Unless the House of Representatives passed a resolution to approve the Order within that period. See s 16 of the COVID-19 Public Health Response Act 2020, https://www.legislation.govt.nz/act/public/2020/0012/latest/LMS344186.html

⁵⁸ COVID-19 Public Health Response Act 2020 (as at 26 November 2024), s 14(5), https://www.legislation.govt.nz/act/public/2020/0012/latest/LMS344182.html

⁵⁹ Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291 at para [80]

⁶⁰ We also note the Regulations Review Committee held an inquiry into COVID-19 Secondary Legislation, which reported to Parliament in June 2023: we return to this in Part 3.

⁶¹ Section 11AA(2) clarified that 'public interest' included (but was not limited to) ensuring continuity of services that are essential for public safety, national defence, or crisis response; supporting the continued provision of lifeline utilities or other essential services; maintaining trust in public services; and maintaining access to overseas markets. See https://www.legislation.govt.nz/act/public/2020/0012/294.0/LMS606175.html

⁶² PCBUs (Persons Conducting a Business or Undertaking) is a term used in the Health and Safety at Work Act 2015: see section 17(1), https://www.legislation.govt.nz/act/public/2015/0070/latest/DLM5976849.html

⁶³ Cabinet Paper, Supporting COVID-19 vaccination requirements in the workplace (October 2021), https://www.mbie.govt.nz/dmsdocument/19926-supporting-covid-19-vaccination-requirements-in-the-workplace-proactiverelease-pdf, paras 42-43

⁶⁴ COVID-19 Public Health Response Act 2020 (as at 26 November 2021), s 9(1) and (later) s 11AA(1), https://www.legislation.govt.nz/act/public/2020/0012/latest/LMS344175.html

⁶⁵ Not all elements of the response set out in Section 4 (which defines the Act's purpose) are included here. For the full list, see https://www.legislation.govt.nz/act/public/2020/0012/294.0/LMS344139.html

⁶⁶ See section 4(ca) and 4(cb) in the amended Act. COVID-19 Public Health Response Act 2020 (as at 26 November 2021), https://www.legislation.govt.nz/act/public/2020/0012/294.0/LMS344139.html

⁶⁷ The final report of the Finance and Expenditure Committee says the statement of purpose in section 4 of the Act 'functions as an explicit constraint on the Minister regarding the making of section 11 orders'. See 'Inquiry into the operation of the COVID-19 Public Health Response Act' (July 2020), https://selectcommittees.parliament.nz/view/SelectCommitteeReport/99cf4200-c1df-4904-836c-90b2c1dd74b0, p 12.
In a submission to the Committee, the New Zealand Law Society said the requirement for the Minister to consider whether the Order was appropriate to achieve the Act's purpose was the only substantive limitation, with the other requirements being procedural. See https://www.lawsociety.org.nz/assets/Law-Reform-Submissions/l-FEC-COVID-19-Public-Health-Response-Act-2020-5-6-20.pdf

⁶⁸ COVID-19 Public Health Response Act 2020 (as at 6 August 2020), s 9, https://legislation.govt.nz/act/public/2020/0012/81.0/LMS344175.html

⁶⁹ COVID-19 Public Health Response Act 2020 (as at 26 November 2024), ss 13(1) and 13(2), https://www.legislation.govt.nz/act/public/2020/0012/294.0/LMS344179.html

⁷⁰ Although in some circumstances, public health measures are required to be respectful of individuals (s 92C), proportionate, minimally restrictive and apply only for as long as necessary (ss 92F, 92G and 92H), https://www.legislation.govt.nz/act/public/1956/0065/latest/DLM305840.html

⁷¹ New Zealand Human Rights Commission, 'Monitoring Human Rights in the Canterbury Earthquake Recovery' (2013), https://tikatangata.org.nz/cms/assets/Documents/OPCAT-Files/Monitoring-Human-Rights-in-the-Canterbury-Earthquake-Recovery.pdf p 7.
Quoted in NZ Royal Commission of Inquiry into COVID-19 Lessons Learned: Phase One, Main Report (2024), Appendix A4, https://www.covid19lessons.royalcommission.nz/reports-lessons-learned/main-report/appendices/a-4-human-rights-frameworks

⁷² New Zealand Human Rights Commission, 'Monitoring Human Rights in the Canterbury Earthquake Recovery' (2013), https://tikatangata.org.nz/cms/assets/Documents/OPCAT-Files/Monitoring-Human-Rights-in-the-Canterbury-Earthquake-Recovery.pdf, p 10

⁷³ Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15 March 2019, *Ko tō tātou kāinga tēnei: report of the Royal Commission* (2020), Part 2 Chapter 3, https://christchurchattack.royalcommission.nz/the-report/part-2-context/overview-of-new-zealands-international-and-domestic-human-rights-framework

⁷⁴ New Zealand Human Rights Commission, '75 years on from the Universal Declaration of Human Rights, Aotearoa has work to do' (10 December 2023), https://tikatangata.org.nz/news/75-years-on-from-the-universal-declaration-of-human-rights-aotearoa-has-work-to-do

⁷⁵ New Zealand Bill of Rights Act 1990, https://legislation.govt.nz/act/public/1990/0109/latest/DLM224792.html

⁷⁶ Emily Haves and Sarah Tudor, National Bills of Rights: International Examples, House of Lords Library (19 February 2016), https://researchbriefings.files.parliament.uk/documents/LLN-2016-0010/LLN-2016-0010.pdf
N.W. Barber, "Why entrench?', International Journal of Constitutional Law 14, no. 2 (2016), https://doi.org/10.1093/icon/mow030

⁷⁷ NZ Human Rights Commission, A human rights and Te Tiriti o Waitangi approach to Aotearoa New Zealand's proposed Covid-19 Protection Framework (November 2021), https://tikatangata.org.nz/cms/assets/Documents/Reports-and-Inquiry/COVID-19-/A-human-rights-and-Te-Tiriti-o-Waitangi-approach-to-Aotearoa-New-Zealands-proposed-Covid-19-Protection-Framework-General-Conditions-Briefing.pdf, pp 1-2.
The Human Rights Commission's discussion draws on sources including the Siracusa Principles 1984 (in particular clauses 25 and 26); the UN Human Rights Committee Statement on derogations from the Covenant in connection with the COVID-19 pandemic, CCPR/C/128/2 (24 April 2020); and the UN Committee on Economic, Social and Cultural Rights Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights E/C.12/2020/1 (6 April 2020).

⁷⁸ One of the eight principles of the rule of law set out by the constitutional law expert, Lord Bingham of Cornhill KG, in his book *The Rule of Law* (2010); see Bingham Centre for the Rule of Law, 'Lord Bingham's summary of the Rule of Law' (2025), https://binghamcentre.biicl.org/our-vision

⁷⁹ See Lord Atkin's dissent in Liversidge v Anderson [1942] AC 206. The majority judgment, which displayed undue deference to the Executive branch, carries no authority under modern law and Lord Atkin's dissent is universally regarded as the correct legal analysis.

⁸⁰ See the judgment of Elias CJ and Arnold J in *Ririnui v Landcorp Farming Ltd* [2016] 1 NZLR 1056 (Supreme Court).

⁸¹ For example, Borrowdale v Director-General of Health [2020] NZHC 2090, *Orewa Community Church & Ors v Minister for COVID-19 Response and the Director-General of Health* [2022] NZHC 2026 and *Four Aviation Security Service Employees v Minister of COVID-19 Response & Ors* [2021] NZHC 3012 (among others).

⁸² COVID-19 Public Health Response Act 2020, as at 26 November 2024, s 13(2), https://legislation.govt.nz/act/public/2020/0012/latest/LMS344179.html

⁸³ NZ Royal Commission of Inquiry into COVID-19 Lessons Learned: Phase One, Main Report (2024), Appendix A1 Section 1.2, https://www.covid19lessons.royalcommission.nz/reports-lessons-learned/main-report/appendices/a-1-legislation