3.2 Lesson Two: Legislation: the guardrail for fundamental rights and freedoms

 

Akoranga Tuarua: Te Ture: he whakamaru mō ngā motika me ngā herekore
 

L2.2 About this lesson

Mō tēnei akoranga

 
Our Terms of Reference ask us to assess the extent to which pandemic decision-makers were informed of the potential social and economic impacts of their decisions, and whether those impacts were reasonably balanced against public health goals during the response. As we have explained in Part 2, many key decisions about the use of certain public health tools in 2021-2022 (such as lockdowns and vaccine mandates) were made under the COVID-19 Public Health Response Act 2020. That Act defined when social and economic impacts were required to be taken into account. For this reason, we have looked closely at the legislative framework and whether it sufficiently supported decision-makers to make well-informed and balanced decisions.

We have developed this lesson and associated recommendations because, in the next pandemic, key response decisions will once again be fundamentally shaped by the legislative framework that authorises them.¹⁰¹⁹ Therefore, the need to have in place an appropriate legal framework is, in our view, a matter 'that should be taken into account in future decisions to best prepare New Zealand to respond to any future pandemics' (as our Terms of Reference require us to identify).

This lesson has been informed by submissions we received from agencies, organisations and legal experts, as well as submissions made to Phase One of this Inquiry.¹⁰²⁰ We have also drawn on the body of expert commentary about the legislative response to COVID-19 and especially the COVID-19 Public Health Response Act. We have consulted reviews by select committees like the Finance and Expenditure Committee¹⁰²¹ and the Regulations Review Committee,¹⁰²² along with submissions made to those bodies. We have also considered the work of independent legal scholars and other experts.

Some common perspectives emerge from these sources, which we discuss more fully later in this Lesson. Broadly, though, they agree that the Act itself:

• contained good safeguards, checks and balances. However, the Act could and should have provided more protection for human rights
• rightly gave the most significant powers to a minister rather than to officials
• was developed without adequate consultation with Māori and its provisions were not sufficient to give effect to the government's obligations under Te Tiriti o Waitangi
• did not clearly or sufficiently allow for proportionality¹⁰²³ or matters other than public health to be considered when decisions were taken
• included problematic provisions relating to exemptions from orders (especially a lack of clarity about the circumstances in which they could be granted), offences, enforcement and penalties.

We turn now to the key insights arising from our assessment of the COVID-19 legislative framework and how it shaped the key response decisions.

L2.3 What we learned from New Zealand's COVID-19 experience

Ngā mea i akona mai i te wheako o Aotearoa ki te KOWHEORI-19

 
L2.3.1 The COVID-19 Public Health Response Act created a more sophisticated legislative framework than other bespoke emergency legislation had achieved  

I waihanga te Ture Urupare Hauora Tūmatanui mō te  KOWHEORI-19 i tētahi anga ture mātanga ake i ērā atu ture ohotata motuhake

 
By early 2020, it was apparent that the Health Act 1956 had significant limitations as a tool for responding to a pandemic of the scale, severity and potential duration of COVID-19. We share the Ministry of Health's view that the special powers in the Health Act 'lack procedural and human rights safeguards and court judgments have found that while they can be used as a stop-gap measure in emergency situations, they are not suitable for sustained, complex responses.' ¹⁰²⁴ Given these inadequacies, and with COVID-19 spreading globally at alarming speed, the Government considered additional legislation was urgently needed.

For more than a decade, the preferred legislative approach to emergency responses had been to introduce bespoke Acts containing appropriate safeguards on the use of powers, along with other checks and balances.¹⁰²⁵ This had happened after the Canterbury and Kaikōura earthquakes, for example.¹⁰²⁶

The introduction of the COVID-19 Public Health Response Act 2020 was consistent with this approach. It too was an example of bespoke legislation, tailored to a specific emergency. Like the earthquake legislation, the Government chose to rely on this Act rather than any pre-existing legislative regime. And, like other bespoke legislation, the COVID-19 Public Health Response Act was always meant to be time-limited.

COVID-19 was a different kind of emergency. Typically, natural disaster emergencies have a short acute period followed immediately by a recovery phase, in which actions and decisions are seldom expected to have significant human rights implications. In contrast, COVID-19 was not a natural disaster that struck one locality quickly, after which the recovery could begin. COVID-19 was longer-lasting, was felt nationwide and required a response that included preventative measures to mitigate harm over a lengthy period.

The COVID-19 Public Health Response Act was intended to provide government with the powers this specific emergency was expected to require. Over time, it was amended to broaden the scope of those powers as other public health tools such as vaccine passes were considered desirable. The Act put in place a wide-reaching and complex framework of primary and secondary¹⁰²⁷ legislation, as well as other instruments such as Gazette notices, that was significantly more sophisticated than other bespoke emergency statutes had created. Those statutes had largely worked by authorising existing legislation to be amended,¹⁰²⁸ whereas the COVID-19 Public Health Response Act created a whole scheme setting out COVID-specific powers, duties, offences, penalties, enforcement and more.

This framework substantially improved some aspects of the previous Health Act regime,¹⁰²⁹ as shown in the following examples.

• The new Act expressly required the Minister¹⁰³⁰ to be satisfied that orders complied with the New Zealand Bill of Rights Act and were appropriate to achieve its purpose.
• Under the new Act, powers were exercised at a ministerial level, with Cabinet input envisaged and consultation with certain ministers required, rather than being held solely by a medical officer of health.

• As we have set out in Part 1 of this report (see section 1.2), those powers were broader and allowed for greater flexibility in developing tools to respond to the pandemic.

While the legislative framework ushered in by the COVID-19 Public Health Response Act was in many ways better than what came before, there is reason for concern about certain aspects of the Act – especially its constitutional implications. As we have described above, some of these concerns were aired by others at the time the Act was passed while others have emerged from subsequent expert reviews and commentary.

Given a number of these issues involve matters of constitutional law, they may seem esoteric or relevant only to some. But to strengthen New Zealand's legal preparedness for the next pandemic, it is important to everyone that these matters are addressed when developing the framework that will govern future responses to this particular form of emergency.

Our key reservations are set out below.

L2.3.2 Aspects of the COVID-19 Public Health Response Act could be improved

He wāhanga o te Ture Urupare Hauora Tūmatanui mō te KOWHEORI-19 ka taea te whakapai ake

 
L2.3.2.1 The Act gave very wide-reaching powers to the Executive branch of government

He mana whānui tā te Ture i tuku ki te wāhanga Whakahaere o te Kāwanatanga

 
The defining and distinctive feature of the COVID-19 Public Health Response Act was the extraordinary breadth and reach of the discretionary powers it granted to the Minister for COVID-19 Response.¹⁰³¹ The Minister had the power to make secondary legislation (in the form of Orders) that fundamentally affected almost every aspect of people's lives, including putting limits on human rights (provided he or she was satisfied such limits were justified).

With such broad powers having been given to the Executive, we find it concerning that the Act:

• put almost no limits on the kinds of orders the Minister and Director-General could make under section 11. They could make Orders requiring people to take or refrain from any action, or comply with any measure or prohibition, provided that they considered doing so would contribute to preventing or limiting the spread of COVID-19¹⁰³²
• allowed officials to be authorised to grant exemptions from compliance with Orders, but did not itself prescribe circumstances in which exemptions could or should be granted. While this gave much-needed flexibility, it left significant discretion to officials in relation to exemptions in circumstances where the Act did not provide any 'safety valve' for exceptional circumstances or humanitarian considerations, or clear overarching statutory basis for exemptions¹⁰³³

• in effect,¹⁰³⁴ gave all orders made under the Act overriding power in relation to other legislation.¹⁰³⁵

In highlighting our concerns about the broad powers under the Act, we accept that they were subject to important safeguards and appear to have been exercised with appropriate caution in the circumstances existing (or understood to exist) at the time. This sense of caution was reflected in Cabinet's careful consideration of key decisions, which provided one significant safeguard. Further, former ministers and their advisers appear to have been hearing from a range of sources and doing their utmost to protect the health and wellbeing of New Zealanders.

But, in essence, the COVID-19 Public Health Response Act gave the Minister for COVID-19 broad powers, including the ability to override legislation, with Parliamentary scrutiny after the fact. Over the long period it remained in force, the Act enabled unprecedented government control of people's normal activities. We recognise that, in the all-encompassing turmoil of mid-2020, this legislative approach may have been considered necessary at first. We also recognise that some of the Act's provisions may have been appropriate at certain stages of the pandemic, depending on the relative urgency of the situation and changing knowledge about how to respond to the virus (discussed further below). Nevertheless, we think a different approach can and should be taken to prepare for future pandemics.

L2.3.2.2  The response legislation allowed the use of extraordinary powers throughout the entire pandemic period

I āhei te ture urupare ki te whakamahi i ngā mana motuhake puta noa i te wā katoa o te mate urutā

 
As we have explained, the extraordinary powers that the COVID-19 Public Health Response Act gave to the Minister for COVID-19 Response went hand in hand with safeguards. For example, section 8 of the Act stipulated that orders could be made only when authorised by the Prime Minister, or when a state of emergency or an epidemic notice was in force – two measures that are rarely used, must themselves meet exacting criteria and are strictly temporary (although they can be, and were, repeatedly renewed during the COVID-19 pandemic).

The Act's extraordinary powers were clearly intended to be exercised in the specific context of a public health emergency. At the time it was passed, officials and ministers believed the pandemic response would only be needed for a short period, as the Rt. Hon. Chris Hipkins told us:

No-one expected COVID-19 would take 2½, nearly 3 years... I think we were expecting maybe six months at the beginning and then maybe a year and then maybe vaccination and then maybe that would be it … . Had we known we were going to be dealing [with] it for three years we probably would have made different decisions at the beginning about how we structured that response.¹⁰³⁶

Uncertainty as to the duration of the pandemic was reflected in section 3 of the Act. While it originally had a two-year outlook overall (and would be repealed at that point), section 3 also provided that the Act would be repealed unless Parliament resolved otherwise every 90 days.¹⁰³⁷

But ultimately, and with the agreement of Parliament, the COVID-19 Public Health Response Act remained in force for the entire 20-month period we are reviewing and beyond. It was finally repealed on 26 November 2024, four and a half years after it was introduced.

As we know, the risk associated with COVID-19 and the kinds of powers that the Government needed varied significantly during that time. Several factors contributed: the virus was shut out of the country for extended periods due to border closures, the virulence and transmissibility of COVID-19 variants fluctuated (the risks presented by Delta were different from those associated with Omicron, for example), and the proportion of the population protected by vaccination was significantly higher by the end of 2021 than at the start of the year.

But at the very start of the pandemic, with vaccination still a distant prospect and little known about how the virus might spread, New Zealand's initial response was driven by an understandable sense of urgency. This has been vividly described by one of the central actors, the Director-General of Health, Sir Ashley Bloomfield. In evidence quoted by the High Court when considering a challenge to the legality of the initial lockdown, he recalled:¹⁰³⁸

Then came a tipping point around the weekend of 21–22 March: modelling coming in from experts, both in New Zealand and around the world, was showing that once community transmission took hold, we would lose our window to stamp out the virus, that there would only be one shot at this. At the same time, we were getting our first confirmed community transmission cases. We realised that “go early” had changed to “go right now”, and there was no time left. What we thought could be done in two weeks or two days had to happen now: it was quite literally now or never. Hard decisions were required, and we made them, as it was now clear that this was the best – in fact the only – way to protect the health and well-being of New Zealanders, prevent our health system being overwhelmed, and avoid prolonged damage to our economy. The absolute priority was to get the lockdown in place and that drove every aspect of what we did over that period: we needed to move, and had no time to sort out the exact details. Some things would have to get sorted out later.

Faced with an imminent but still unquantifiable threat, the Government initially exercised the powers available to it under the Health Act 1956. It issued an epidemic notice which came into force on 25 March 2020 (repeatedly renewed, it remained in place until the end of 2022).¹⁰³⁹ A national state of emergency came into effect the same day and continued until 13 May 2020. But already, the Government started developing the bespoke COVID-19 Public Health Response Act to govern the response. Once that Act came into force, the pandemic response remained on an emergency footing for almost three years.¹⁰⁴⁰

Was the ongoing availability and use of extraordinary powers justified, given the fluid pandemic landscape? In her 2022 review of emergency legislation for the Law Commission, Professor Janet McLean KC explained that emergencies typically move through several phases: mitigation, preparedness, response and recovery.¹⁰⁴¹ But they are not always distinct or sequential. In a pandemic – whose duration was variable and unpredictable – 'a country may go in and out of an acute emergency phase'.¹⁰⁴² Likewise, 'the response and recovery phases may proceed in tandem for many years and the threat to health may fluctuate'.¹⁰⁴³

As not all emergency phases may justify the use of extraordinary measures, different responses will likely be required at different times. During the most acute phases, Professor McLean said, normal processes for developing and implementing laws and regulations, including public participation and dialogue, might need to be temporarily suspended, and power placed (also temporarily)' in the hands of a few … acting on expert advice'.¹⁰⁴⁴ How long such arrangements are justified and should remain in place 'will depend on the level of the threat to wellbeing and the nature and geographical extent of the emergency'.¹⁰⁴⁵ But in liberal democracies, she said:

The general proposition still holds good that the use of extraordinary powers should be as time-limited as possible and the resumption of ordinary political and legal processes should commence as early as is prudent (subject to ongoing mitigation measures).¹⁰⁴⁶

In our view, the COVID-19 Public Health Response Act (and other statutes supporting the response) did not adequately allow for the variable pandemic circumstances New Zealand experienced over 2020–2022. The legislation did not distinguish between acute response phases and other phases that were lower-risk. Instead, the legislation authorised a concentration of power that continued during times when the emergency was acute and also when it was not.

To avoid any doubt, these comments refer solely to what the legislative scheme said and allowed: we are not commenting on how the powers set out in the Act were actually exercised. We acknowledge that many decision-makers and officials were committed to restoring usual government processes as soon as possible. We also acknowledge the prevailing climate of uncertainty: some may have considered broad powers needed to be available at all times, in case they were unexpectedly and urgently needed. However, we think future pandemic legislation could address this issue in a more nuanced way.

L2.3.2.3 The decision-making roles, processes and powers provided for in pandemic legislation should be carefully considered

Me āta whakaaro ngā tūranga whakatau, ngā tukanga me ngā mana i whakaritea e te ture mate urutā

 
We have already described (in Part 1) how government decision-making works in 'normal' times. Significant policy decisions are made by ministers acting collectively as members of Cabinet. When a statute allows a minister to take particular actions or decisions individually, the minister should 'ensure that they consider all relevant matters and do not take into account irrelevant matters'.¹⁰⁴⁷ They should also, where appropriate, brief Cabinet about the intended decision. As the Cabinet Manual explains, this ensures the entire Cabinet 'understand[s] the basis on which the Minister intends to make the decision' and can defend it publicly and collectively.¹⁰⁴⁸

The Manual makes it clear that 'Cabinet cannot make, or appear to make, a decision that the statute requires a Minister to make'. To do so can threaten the integrity of the statutory decision-making process.¹⁰⁴⁹ Within that guideline, it is normal for ministers to consult Cabinet about the significant decisions they are statutorily required to make.

In fact, in a pandemic, there are real benefits in doing so. Cabinet comprises ministers with diverse experiences who represent and are informed by their portfolios. As one senior official told us, Cabinet is designed to 'winnow and weight a plurality of views'.¹⁰⁵⁰ This is what many pandemic decisions required. We consider Cabinet was well-placed to assess and balance the varying interests that were affected by key decisions, including by considering economic and social factors.

In all significant ministerial statutory decision-making, Cabinet involvement is expected to some degree. Where Cabinet expresses a view on a decision, it would be highly unlikely for a minister to take a different approach.

What was somewhat unusual about the COVID-19 Public Health Response Act is that it expressly referred to Cabinet involvement. It did so via s 9(1)(b), which stated that, when making an order, the Minister for COVID-19 Response 'may have had regard to any decision by the Government 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).'¹⁰⁵¹ The involvement of Cabinet was explicitly built into the statute.

The decision-making process and the respective roles of Cabinet and the Minister were canvassed in advice to the Attorney-General in May 2020. In that advice, Cabinet's role was described as 'set[ting] the strategy for responding to COVID-19 with the different alert levels, and criteria for moving between them.' The Minister's role would be to 'decide which orders are needed and proportionate to issue to limit the risk of the outbreak or spread of COVID-19'.¹⁰⁵²

Under section 9 of the COVID-19 Public Health Response Act, it was the Minister who would determine what orders were required to prevent and limit the risk of COVID-19. As we have said above, the Act explicitly envisaged Cabinet input: in making these decisions, the Minister was permitted to have regard to Cabinet's policy decisions about the appropriate levels of public health measures.¹⁰⁵³

Our assessment of key decisions (on adjusting alert levels, for example, in Chapter 2 section 2.4.4) has shown that, Cabinet was, in reality, the primary decision-maker in some instances. When ministers did exercise their statutory powers, they effectively did so to implement a decision that Cabinet had made or approved. Rt. Hon. Chris Hipkins explained:

Although the Act gave me powers to make Covid-19 orders (including orders to self-isolate, or requiring mask wearing etc) in practice these decisions went through the usual Cabinet decision-making process or were referred to Cabinet.¹⁰⁵⁴

We are not suggesting that the processes the Government followed when making decisions under the Act resulted in wrong decisions. Section 9 made it clear that the Minister was required to consult with key ministerial colleagues and allowed for additional consultation, including with Cabinet. We are satisfied that Cabinet's decision-making processes in the pandemic – especially the breadth of information it considered – ensured those decisions took account of relevant matters, including those set out in the Act's purpose. It follows that the key decisions we have been discussing were made in accordance with the prevailing legislation and thus complied with the rule of law.

There is a different question, however, as to the appropriateness of using broad-scale statutory powers as a means of attenuating fundamental rights. Limiting basic rights on a wholesale basis is a serious matter in a parliamentary democracy. Parliament should be involved whenever possible. If the urgency of a situation makes Parliament's involvement impracticable, the next best alternative is to employ the powers of the Executive Council to enact secondary legislation. Although using the Executive Council process might be considered less convenient than the alternative, we consider that the gravity of preventing people from exercising their basic rights and freedoms on a broad scale demands a decision-making process at the highest possible level of formality. We return to this issue in 2.4.2.1 below.

L2.2.2.4 Legislation – including vaccine legislation passed in November 2021 – was passed with urgency

Ngā ture – tae atu ki ngā ture kano ārai i whakaturehia i Noema 2021 – nā te tikanga whakatere

 
The COVID-19 Public Health Response Act 2020 was passed by Parliament under urgency in May 2020. So too were several subsequent amendments to that Act – including, in November 2021, the COVID-19 Response (Vaccinations) Legislation Act, which gave the Minister the power to order vaccine passes and associated mandates.

However, we note that in general, when legislation is passed under urgency:

• it does not have the benefit of select committee scrutiny and public submissions
• there is a risk of poor drafting, unintended consequences and implementation problems
• full cost-benefit analysis may not be possible
• the advice that officials can give decision-makers about the proposed legislation – including the extent to which it complies with the New Zealand Bill of Rights Act – may be limited
• public confidence can be undermined because of one or more of these factors.

These potential consequences are avoided by legislating for key pandemic powers in advance.

L2.4 What we think is needed

Ā mātou whakaaro mō ngā mea e hiahiatia ana

 
We found in Part 2 that pandemic decision-makers were, for the most part, sufficiently informed when they made key decisions. They also reasonably balanced the many competing interests they faced. However, these outcomes were not attributable to the COVID-19 Public Health Response Act, whose limitations we have outlined above. The outcomes were instead largely due to processes and practices that were adopted in and around the legislation – processes and practices that we cannot be sure will be followed in another pandemic. We think it important that a future legislative framework formally requires these critical questions of balance, proportionality and impacts to be taken into account in all pandemic decisions.

In this section, we set out what we think that future framework should look like – a modern, fit-for-purpose framework that reflects what was learned from COVID-19 but is flexible enough to meet the challenges of what may be very different pandemic circumstances.

L2.4.1 Primary legislation should be in place, in advance, setting out the key legal powers government can use in a pandemic

Me whakarite kē te ture matua i mua, hei tautuhi i ngā mana matua ka taea e te Kāwanatanga te whakamahi i te wā mate urutā

 
COVID-19 taught us about the kinds of tools and powers a government will need to respond to a future public health emergency like a pandemic. We consider the need for some of these powers is sufficiently certain to justify including them in primary legislation, which should be in place ahead of the next pandemic.

That legislation should:

• emphasise and affirm human rights, which are an overarching consideration whenever government exercises its powers in a pandemic
• be developed according to usual law-making processes (including meaningful engagement with Māori, consistent with Te Tiriti obligations)
• contain appropriate safeguards (procedural and substantive, proactive and reactive)
• clarify how, why and by whom powers are exercised, including in relation to exemptions from public health measures (noting the need for 'safety valve' exemption provisions in the legislation, even if specifics of exemption regimes can only be put in place once the nature of a given pandemic is known)
• require the government's use of powers under the legislation to be subject to ongoing review, monitoring and disclosure, and
• allow for government to use different response strategies and approaches as the pandemic progresses and new circumstances arise.

The reasons for our preferred legislative approach relate to the distinctive features of pandemics, compared with other emergencies, and to our reservations about the COVID-19 Public Health Response Act (set out above).

L2.4.1.1 Because pandemics are different to other emergencies and require a different response, we should not rely on bespoke legislation in the same way

Nō te mea he rerekē te mate urutā i ētahi atu ohotata, ā, he rerekē hoki te urupare e hiahiatia ana, kāore e tika kia whakawhirinaki tonu ki ngā ture motuhake pēnei i mua

 
As we have explained, New Zealand's response to large-scale emergencies – which, historically, have been largely due to natural disasters – has often relied on bespoke, situation-specific and time-limited legislation. Usually, these statutes simply include a power to amend other legislation (by way of regulation) as required for the emergency response.

However, COVID-19 taught us that the way pandemics unfold is markedly different from natural disasters. The response must therefore be different too, reflecting the likelihood of constantly-changing levels of urgency and risk over an extended period of time, with overlapping periods of response and recovery. While a natural disaster is still unfolding, there is no prospect of using legal measures to avoid or limit its impacts; however, legal measures can help to minimise the impacts of a pandemic while it is actually happening.

The COVID-19 experience also showed that responding to a pandemic is much more likely to impinge on human rights than other emergency responses. Public health tools like closing the borders, putting people in quarantine and isolation, imposing lockdown restrictions, closing regional boundaries and mandating vaccination all have human rights implications that are unlikely to arise (or only for a brief time) in a natural disaster emergency.

For these reasons, we think there is significant value in legislating for a pandemic response in advance, rather than simply relying on bespoke legislation at the time. Preparing and passing legislation in 'peace time', without the enormous pressures and challenges that emerge once the pandemic arrives, will allow a thoughtful scheme to be developed – one that incorporates the lessons from COVID-19, such as the need to balance public health considerations with wider social and economic impacts in a structured way.

PPrimary legislation developed and passed in advance would have the benefit of consultation and discussion to ensure it complies with te Tiriti o Waitangi and is consistent with human rights obligations. There would be time for a thorough vetting process under the New Zealand Bill of Rights Act 1990, as well as public input via a select committee process. These steps would enhance the quality of the law, promote transparency and strengthen public trust. All these valuable forms of social and political capital will be critical to maintaining social licence – and support for the response – in the next pandemic (see Lesson Four).

Another significant benefit of developing new pandemic legislation is that future governments would not have to rely on the powers in Part 3 of the Health Act 1956 for large-scale pandemics. The powers sit with the medical officer of health (a public health doctor) rather than a minister. Although they were considered sufficient for the initial response to COVID-19, those powers do not contain adequate safeguards and they are not appropriate for an ongoing pandemic response. We see little logic in retaining them for initial pandemic responses while also developing a new scheme for ongoing responses. Instead, a single coherent pandemic-specific legislative scheme is needed that would sit alongside the Health Act powers (which may remain appropriate to manage other public health emergencies).

L2.4.1.2 Why we prefer to have enhanced primary legislation in place well before the next pandemic response

Ko te take i hiahia ai mātou kia noho kē he ture matua kua whakakaha i mua noa atu I te urupare ki tētahi mate urutā anō

 
We acknowledge that there are two key arguments against putting primary legislation in place in advance. First, the next pandemic is likely to be different to COVID-19 and we cannot predict what kind of response will be needed. Second, granting significant power to the Executive creates a risk of such powers being abused in circumstances where there is no pandemic or no urgent need to use them.

We fully accept that the next pandemic will be different, perhaps significantly so. It may not be viral, like COVID-19. If it is, it may result from a virus with different attributes: it may not be respiratory, it may be transmitted differently and the health consequences may be different – perhaps even more severe. By the time the pandemic arrives, alternative public health tools may be available to respond, some of which may not exist yet. None of this can be predicted with great certainty, although the Ministry of Health's Pandemic Plan states that '[a] pandemic caused by a respiratory pathogen – in particular, a virus – is the most likely event to cause a large-scale health emergency.'¹⁰⁵⁵

Notwithstanding the unpredictability, and on the basis of the COVID-19 experience, we think it likely that a government facing another pandemic may need the ability to:

• restrict people's movement, including in and out of areas
• restrict people's contact with others, including by closing businesses or limiting how they operate
• restrict entry into the country at the borders
• deploy vaccines, testing technology and other PPE
• mandate vaccines.

That being so, we consider such powers should be the subject of standing legislation, provided sufficient safeguards are in place and the legislation is not enacted under urgency. Building a sound legal framework capable of withstanding the unpredictable challenges of the next pandemic cannot be hurried – time must be allowed for careful research, open debate and close scrutiny. It is imperative that we use that time now and use it well, before another pandemic arrives on our doorstep. As the international body charged with ensuring global pandemic preparedness has noted: 'Our reality is no longer one where pandemics are rare shock events but where they pose a constant, real danger … We cannot simply prepare for the last battle.'¹⁰⁵⁶ This is as true for the preparedness of our legal framework as it is for the public health system.

Our preference for standing legislation does not mean we see no place whatsoever for bespoke legislation or the use of urgency. As yet unknown circumstances are bound to emerge in the next pandemic and will need to be addressed urgently. However, we see significant benefit in trying to reduce reliance on bespoke and urgent legislation as far as possible.

As for the concern that having such powers technically available in legislation could be vulnerable to abuse, we agree that overreach is always possible and it is not preferable to rely on the good faith of future governments to avoid it. However, some existing statutes already work in this way. For example, the Health Act 1956 already contained the powers used to give effect to some initial pandemic response measures in 2020 (including a nationwide alert level 4 lockdown). Those powers are still available in the Health Act today. Likewise, before COVID-19, the Epidemic Preparedness Act already contained provisions allowing the government to modify legislation in an epidemic; those provisions remain.

These powers are maintained in the relevant legislation but remain inactive unless and until triggered by an epidemic notice or a declaration of a state of emergency. If either of those triggers arises, there is immediate Parliamentary scrutiny.¹⁰⁵⁷ The triggers are themselves statutory powers subject to review by the Courts, who could declare them invalid if the powers were exercised unlawfully. We think these are sound protections that can and should apply to the powers we propose including in primary legislation.

In Phase One of the Inquiry, it was suggested that model pandemic legislation could be drafted and left dormant until needed. As the Phase One report notes, this was not a unanimous view and a minority opinion was recorded.¹⁰⁵⁸ We agree with the minority view and consider there are numerous highly persuasive reasons for rejecting the notion that future pandemic legislation should be stood up under urgency by the Parliament of the day. While, in future, bespoke legislation may still be necessary, pandemic preparedness legislation based on lessons learned during the COVID-19 pandemic seems like a step that should obviously be taken.

L2.4.2 Fit-for-purpose pandemic legislation should reflect the following principles and features

Me whakaata ngā ture mate urutā e hāngai ana
ki te kaupapa i ngā mātāpono me ngā āhuatanga
e whai ake nei

L2.4.2.1 Appropriate decision-makers | Ngā kaiwhakatau tika

 
Our assessment of key COVID-19 decisions highlighted that different kinds of pandemic response decisions are best made by different decision-makers. We generally support the elevation of decision-making powers from officials to ministers, which was a key feature of the COVID-19 Public Health Response Act.

Cabinet involvement is undoubtedly essential in decisions about when and how to deploy the most significant public health tools, either nationally or regionally. Such powers should be exercised by the Governor-General making Orders in Council: this is consistent with the Legislation Design and Advisory Committee's advice that 'the more significant the power, the more likely it is that it should be exercised by the Governor-General in Council.'¹⁰⁵⁹ However, recommendations to the Governor-General should only be made after meeting clear substantive preconditions (discussed in relation to substantive safeguards below).

The kinds of public health tools that we consider could be given effect by Orders in Council are lockdowns, border closures (and associated quarantine arrangements), closing boundaries around defined areas of the country, and vaccine mandates. The Order in Council process ensures the involvement of Cabinet ministers and thus the collective input that we think is highly valuable in the pandemic context.

Beneath that, individual ministers should be empowered to define greater detail, such as which businesses might qualify as essential businesses, and the criteria for exemptions from requirements. Ministers would be better placed to determine the circumstances in which someone falling within a vaccine mandate made by Order in Council would not in fact be required to comply. Care should be taken to identify the appropriate ministers to exercise such powers, and the decision-making power can ensure that relevant factors are weighted appropriately.

Ministers with particular portfolio responsibilities should make rules within their particular area. For example, border ministers and their agencies are in the best position to set and enforce border-related rules (while of course working closely with the health system). Likewise, government health leaders would be responsible for defining specific health processes. For example, in relation to essential services, it would fall to health leaders to define the rules for operating them safely (such as hygiene and distancing requirements). Officials in appropriate agencies would also have responsibility for assessing exemption applications against rules set by an appropriate minister.

L2.4.2.2 Procedural safeguards | Ngā tukanga haumaru

 
These concern the legislative processes governing how decisions are made or powers are exercised. Such safeguards are intended to provide protection against overreach or abuses of power.

The COVID-19 Public Health Response contained some good process safeguards that we consider should be repeated. They include triggers such as an epidemic notice; requirements to consult with Cabinet and/or other ministers; revocation of any secondary legislation unless approved by Parliament within a defined period; requirements to review secondary legislation; requirements to publish orders and give notice of their effect; and review by the Regulations Review Committee.

We also think there is room to strengthen some of these safeguards. The requirement to review secondary legislation should be given specific timeframes (which could have been beneficial to hasten the removal of vaccine mandates, for example). Orders or secondary legislation should have built-in expiry dates, ¹⁰⁶⁰ with a power to renew them if a review shows they remain necessary. Ongoing monitoring of public health tools should be required – including monitoring their use, efficacy and whether limitations on human rights remain justified in all circumstances – to inform the review process.

In times of less urgency, we would encourage Parliamentary review and approval of orders or secondary legislation before they come into effect. We also support requirements to publish the advice relied on when developing and making orders or secondary legislation.

L2.4.2.3 Substantive safeguards | Ngā ārai haumaru whai tikanga

 
Substantive safeguards are protections built into legislation to guide or limit what must, or can, be considered when decisions are made or powers are exercised. In the COVID-19 Public Health Response Act, the substantive safeguards included requiring the Minister to be satisfied that orders were appropriate to achieve the purpose of the Act, and to be satisfied of compliance with the New Zealand Bill of Rights Act.

The Act required decisions to take account of economic and social impacts, and proportionality, via the purpose section of the Act. Pandemic legislation should include explicit requirements for social and economic factors to be considered in all response decisions and balanced against public health goals.

Legislation should also contain principles to guide decision-making and the application of public health tools, in a similar manner to the principles appearing in sections 92A to 92H of the Health Act 1956. If adjusted for the pandemic context, the principles of proportionality (s 92F) and least restrictive alternative (s 92G) would be particularly useful. Other valuable guidance for developing statutory principles may be found in the 2025 report of the National Ethics Advisory Committee on 'Ethical principles for epidemics and pandemics'.¹⁰⁶¹

Substantive safeguards such as those we have described should apply to all those with decision-making powers – not only ministers but also the Executive Council, the Director-General of Health and other officials.

L2.4.2.4 Human rights | Ngā motika tangata

 
We consider there should be broader requirements than just ensuring new legislation refers to the New Zealand Bill of Rights Act. Referring to that legislation incorporates section 5, which requires decision-makers to consider whether restrictions are justified limitations on human rights. This includes consideration of proportionality, effective alternatives to proposed limitations and whether decision-makers are satisfied that the least restrictive option has been adopted. As already noted in relation to substantive safeguards, one means to achieve this could be to adopt guiding principles.

Matters affecting human rights should generally be dealt with in primary legislation (as opposed to regulations, Orders, and other secondary legislation instruments).¹⁰⁶² As far as possible, this approach should be taken in future pandemic legislation. Should secondary legislation be used to put limits on rights – and bearing in mind that this would be happening in an emergency context – we recommend requiring enhanced transparency including by:

• publishing all advice provided to the government about consistency of legislative instruments with the New Zealand Bill of Rights Act, in the same way that ordinary vetting of legislation is published,¹⁰⁶³ and
• reporting to Parliament any instances where secondary legislation is considered to be inconsistent with the New Zealand Bill of Rights Act, in a process analogous to that is currently in place under s 7 of that Act.

Human rights and social cohesion are also enhanced through increased transparency (freedom of information) as well as public engagement and participation that is authentic, genuine, meaningful. As far as possible, legislation should allow for transparency and public engagement or input.

L2.4.2.5 Exemptions from restrictions in particular circumstances

Ngā whakakore here i ngā āhuatanga motuhake

 
As we have discussed elsewhere, a challenging feature of many public health tools used to respond to a pandemic is that they can cause disproportionate harm to some individuals while still creating benefits for the overall population. An important way to manage those outcomes, and to protect human rights at an individual level, is to have a robust scheme for exemptions, where they are justified. There must always be discretion in individual cases.

The COVID-19 Public Health Response Act created a process where orders made under it could also authorise someone else to grant exemptions to those orders. We can see why, for practical purposes, that process may have been considered desirable. However, we think guidance needs to be given in legislation concerning when exemptions will be granted (at a high level, for example 'in the interests of justice'), means of challenging exemption decisions, and other safeguards to ensure the exemption process is clear and consistent. As noted above, we see benefit in the rules concerning exemptions being set by ministers (at least at a high level).

L2.4.2.6 Giving effect to the Treaty of Waitangi  

Te whakamana o te Tiriti o Waitangi

 
The rapid development of the COVID-19 Public Health Response Act and urgent passage of the COVID-19 Response (Vaccinations) Legislation Act meant there was insufficient engagement with Māori about how the resulting legal powers could affect them.¹⁰⁶⁴ We think such consultation is important particularly given that, as Phase One of this Inquiry found, Māori experienced the COVID-19 pandemic somewhat differently, which was reflected in health, social, economic and other outcomes.

Pandemic legislation needs to be developed in consultation with Māori, and Māori should have input into both its design and implementation, in accordance with Cabinet Office guidance.¹⁰⁶⁵ This is necessary to understand how Māori are affected by pandemic measures both socially and economically, to ensure the legislation provides for Māori needs, to ensure that – as far as possible – powers are exercised in a culturally appropriate way, and to build trust and confidence so that future pandemic responses can be more effective. We also consider lessons can be learned from tikanga values to support an effective pandemic response.

L2.4.2.7 Allowing for different strategies and approaches

Te tuku kia rerekē ngā rautaki me ngā huarah

 
COVID-19 demonstrated that, over the course of a pandemic – which may be lengthy – levels of public health risk are likely to fluctuate considerably. This variability will require government to deploy a range of powers and adopt different strategies at different times.

Pandemic response legislation should therefore recognise the likelihood that the response will be needed for an extended period, that the characteristics of the virus or other infectious agent may change, and that there will be periods of more and less urgency throughout. The legislation needs to allow for different strategies that are given effect by different public health tools (for example, an elimination strategy is likely to require border closures and other ways to stop transmission, such as lockdowns).

Law-makers also need to consider whether powers should be available unchanged throughout the pandemic, or if – in less urgent times – there should be different procedural requirements to enhance accountability and transparency. They should consider how legislation might allow for businesses to undertake risk assessments and determine how to operate, when government deems it appropriate to do so.

L2.4.3 Considerations for bespoke and/or urgent legislation

Ngā whakaaro mō te ture motuhake, ture whakatere rānei

 
We recognise that standing legislation is unlikely to be able to cover every contingency a pandemic may trigger: as already stated, bespoke legislation may still be needed to some extent and may need to be passed urgently.

To enhance confidence in and quality of such legislation, we make the following suggestions.

• Avoid using secondary legislation to place significant limits on people's rights. Where it must be used, consider our comments on disclosure and reporting above in section 2.4.2.4.
• Consult as far as possible, including with the Human Rights Commission, Māori, businesses, other political parties, health professionals and other experts/expert bodies. If pandemic circumstances mean there is no time for consultation before bespoke legislation or urgency processes are required, retrospective review – with input from the above groups and others – is essential to ensure ongoing legislative improvements.
• Include mechanisms for oversight by Parliament, and ensure inclusion of sunset clauses.
• Prioritise clarity in legislation and legislative instruments. Do not require people to refer to unenforceable guidance, published elsewhere, to interpret or apply the law.
• Pursue transparency vigorously by (for example) proactively releasing relevant Cabinet minutes and papers and considering the use of disclosure statements.
• Continually review response legislation and whether it remains fit for purpose. Keep a record of all emergency powers in force. As soon as circumstances are less urgent, take the opportunity to consider whether there would be better mechanisms for the response than bespoke legislation or secondary legislation made under it, such as making amendments to the overall pandemic legislation.

L2.5 Recommendations | Ngā tūtohutanga

To create a clear and enduring legal framework for managing future pandemics, the Government should establish dedicated primary legislation.

This framework should set out the most significant powers and tools available to government in a pandemic response, including restrictions on movement and vaccine requirements, ensuring restrictions on human rights are grounded in primary legislation.

The pandemic legislation should clearly define the scope and limits of emergency powers, including:

• the triggers for activating them
• the appropriate decision-making authority, and
• the circumstances under which exemptions from powers, penalties or offences may apply.

The legislation should embed strong safeguards – both procedural and substantive, and both proactive and reactive. The legislation and use of powers should be subject to ongoing review and reporting, and decision-makers should be required to explicitly consider:

• human rights, and how any limitation on those rights is justified, necessary and evidence-based
• principles such as proportionality and the use of least restrictive measures (which should be set out in the legislation to guide decision-making and the use of public health tools)
• social and economic considerations, in balance with public health advice.

The legislation should provide for flexibility, enabling the response to be scaled and adapted as circumstances change. However, decision-makers should be required to weigh social, economic and public health considerations at every stage of the response.

The legislation should provide for periodic review, to ensure it remains fit for purpose.

To ensure legitimacy, public trust and robust consideration of rights and Te Tiriti o Waitangi obligations, the legislation should be developed using the usual law-making processes, including select committee scrutiny, public consultation and regulatory impact analysis.

The legislation should undergo careful vetting for consistency with the New Zealand Bill of Rights Act 1990.

Bespoke pandemic legislation should not be passed under urgency except as a last resort.

If urgency is unavoidable, law-makers should still follow as many ordinary processes as possible.

Any bespoke powers should include appropriate safeguards, including sunset clauses, to ensure they expire automatically after a short period unless Parliament renews them.

Advice relating to the exercise of powers under pandemic legislation should be publicly released as far as possible.

In relation to human rights, there should be:

• publication of all advice provided to the government about consistency of secondary legislation and/or other legislative instruments with the New Zealand Bill of Rights Act, and
• reports to Parliament of any instances where secondary legislation is considered to be inconsistent with the New Zealand Bill of Rights Act.

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¹⁰¹⁸ Primary legislation comprises Acts (also known as statutes) that have been passed by Parliament, or proposed Acts (known as Bills) that have been introduced to Parliament. 

¹⁰¹⁹ This lesson addresses only the public health component of the legislative framework, not the many other statutes and legal instruments that may need to be used or adapted in a pandemic response. 

¹⁰²⁰ Providing those submissions were not subject to confidentiality orders. 

¹⁰²¹ NZ House of Representatives, Report of the Finance and Expenditure Committee, Inquiry into the operation of the COVID-19 Public Health Response Act 2020 (July 2020), https://selectcommittees.parliament.nz/view/SelectCommitteeReport/99cf4200-c1df-4904-836c-90b2c1dd74b0 

¹⁰²² NZ House of Representatives, Report of the Regulations Review Committee, Inquiry into COVID-19 Secondary Legislation (15 June 2023), https://selectcommittees.parliament.nz/v/6/598a07f5-0ea1-49f1-8949-08db6d443690?lang=en 

¹⁰²³ As we define elsewhere in this lesson, 'proportionality' requires the benefits expected to result from a particular response measure to be weighed against the possible adverse consequences. 

¹⁰²⁴ Ministry of Health, New Zealand Pandemic Plan, A framework for action (interim update, July 2024), https://www.health.govt.nz/system/files/2024-07/interim_nz_pandemic_plan_v2.pdf, pp 125–126 

¹⁰²⁵ NZ House of Representatives, Report of the Regulations Review Committee, Inquiry into Parliament's legislative response to future national emergencies (December 2016), https://selectcommittees.parliament.nz/view/SelectCommitteeReport/17330fce-b9ff-4043-9908-1658ca0e5c45, p 26
Professor Janet McLean KC, 'The Legal Framework for Emergencies in Aotearoa New Zealand', Te Aka Matua o te Ture Law Commission Study Paper 23 (November 2022), https://www.lawcom.govt.nz/assets/Publications/StudyPapers/NZLC-SP23.pdf, paras 2.2–2.3, pp 31–32 

¹⁰²⁶ Key bespoke legislation introduced after these major earthquakes includes the Hurunui/Kaikōura Earthquakes Recovery Act 2016, https://legislation.govt.nz/act/public/2016/0102/latest/DLM7054111.html, Canterbury Earthquake Recovery Act 2011, https://legislation.govt.nz/act/public/2011/0012/latest/DLM3653522.html and Canterbury Earthquake Response and Recovery Act 2010, https://legislation.govt.nz/act/public/2010/0114/latest/DLM3233004.html 

¹⁰²⁷ Secondary legislation is law made by someone other than Parliament, generally under a power delegated by Parliament in a particular Act. Examples include regulations, rules and Orders in Council. 

¹⁰²⁸ See, for example: s 6 of the Canterbury Earthquake Response and Recovery Act 2010, https://legislation.govt.nz/act/public/2010/0114/latest/DLM3233036.html, s 7 of the Hurunui/Kaikōura Earthquakes Recovery Act 2016, https://legislation.govt.nz/act/public/2016/0102/15.0/DLM7054141.html, and s 7 of the Severe Weather Emergency Recovery Legislation Act 2023, https://legislation.govt.nz/act/public/2023/0017/latest/LMS825642.html 

¹⁰²⁹ Section 16 of the COVID-19 Public Health Response Act 2020 provided that orders made by the Minister would be automatically revoked unless they were approved by Parliament within a specified period. See https://www.legislation.govt.nz/act/public/2020/0012/latest/LMS344186.html 

¹⁰³⁰ In the COVID-19 Public Health Response Act 2020, 'the Minister' with powers under s 11 meant the Minister for COVID-19 Response (and, before that portfolio was created in November 2020, the Minister of Health) or a Minister authorised by the Prime Minister (s5).

¹⁰³¹ Some powers were also granted to the Director-General of Health to make orders which could only apply to defined geographical areas. We are not aware of those powers having been exercised and so do not focus on them in our analysis. 

¹⁰³² Subject, of course, to the prerequisites in ss 8–10. 

¹⁰³³ These concerns were noted by the Chief Ombudsman in a submission (dated 3 February 2022) to the Regulations Review Committee's Inquiry into the regulation-making powers in the COVID-19 Response (Vaccinations) Legislation Act 2021 and the COVID-19 Public Health Response (Protection Framework) Order 2021. See https://www3.parliament.nz/resource/en-NZ/53SCRR_EVI_118276_RR1584/41550fc738733906e5e48abd51467febc0e9277a 

¹⁰³⁴ From 6 August 2020, section 13(1) of the COVID-19 Public Health Response Act 2020 read: 'A COVID-19 order may not be held invalid just because (a) it is, or authorises any act or omission that is, inconsistent with the Health Act 1956 or any other enactment relevant to the subject matter of the order'. See https://www.legislation.govt.nz/act/public/2020/0012/81.0/LMS344179.html 

¹⁰³⁵ With the exception of the New Zealand Bill of Rights Act 1990. COVID-19 Public Health Response Act 2020, as at 6 August 2020, s 13(2), https://legislation.govt.nz/act/public/2020/0012/81.0/LMS344179.html 

¹⁰³⁶ NZ Royal Commission of Inquiry into COVID-19 Lessons Learned: Phase Two, interview with Rt. Hon. Chris Hipkins (15 September 2025) 

¹⁰³⁷ COVID-19 Public Health Response Act 2020, as enacted, s 3, https://legislation.govt.nz/act/public/2020/0012/30.0/LMS344600.html. This provision was subsequently amended to extend the duration of the Act. 

¹⁰³⁸ Borrowdale v Director-General of Health [2020] NZHC 2090 at [141] 

¹⁰³⁹ This was not the first use of legal powers for the COVID-19 response. The first Section 70 Order (other than relating to cruise ships) was issued on 16 March under the direct authorisation of the Minister of Health. This preceded powers authorised by the Epidemic Notice by nine days. 

¹⁰⁴⁰ Although the COVID-19 Public Health Response Act 2020 was not repealed until November 2024, in November 2022, section 11 was amended to repeal the Director-General's powers under section 10 and to limit the Minister's powers under section 11 to making orders in relation to self-isolation, masks, persons arriving in New Zealand, and import/manufacture/supply/sale of tests. The powers to make orders that would apply different restrictions based on vaccination status, or mandate vaccinations, were also removed. 

¹⁰⁴¹ Professor Janet McLean KC, 'The Legal Framework for Emergencies in Aotearoa New Zealand', Te Aka Matua o te Ture Law Commission Study Paper 23 (November 2022), https://www.lawcom.govt.nz/assets/Publications/StudyPapers/NZLC-SP23.pdf, para 1.2, p 12 

¹⁰⁴² Professor Janet McLean KC, 'The Legal Framework for Emergencies in Aotearoa New Zealand', Te Aka Matua o te Ture Law Commission Study Paper 23 (November 2022), https://www.lawcom.govt.nz/assets/Publications/StudyPapers/NZLC-SP23.pdf, para1.24, p 18 

¹⁰⁴³ Professor Janet McLean KC, 'The Legal Framework for Emergencies in Aotearoa New Zealand', Te Aka Matua o te Ture Law Commission Study Paper 23 (November 2022), https://www.lawcom.govt.nz/assets/Publications/StudyPapers/NZLC-SP23.pdf, para 9, p 11 

¹⁰⁴⁴ Professor Janet McLean KC, 'The Legal Framework for Emergencies in Aotearoa New Zealand', Te Aka Matua o te Ture Law Commission, Study Paper 23 (November 2022), https://www.lawcom.govt.nz/assets/Publications/StudyPapers/NZLC-SP23.pdf, para 1.24, pp 18–19 

¹⁰⁴⁵ Professor Janet McLean KC, 'The Legal Framework for Emergencies in Aotearoa New Zealand', Te Aka Matua o te Ture Law Commission, Study Paper 23 (November 2022), https://www.lawcom.govt.nz/assets/Publications/StudyPapers/NZLC-SP23.pdf, para 1.24, p 18 

¹⁰⁴⁶ Professor Janet McLean KC, 'The Legal Framework for Emergencies in Aotearoa New Zealand', Te Aka Matua o te Ture Law Commission, Study Paper 23 (November 2022), https://www.lawcom.govt.nz/assets/Publications/StudyPapers/NZLC-SP23.pdf, para 9, p 11 

¹⁰⁴⁷ Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, p 78 

¹⁰⁴⁸ Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, p 78 

¹⁰⁴⁹ Cabinet Office, Cabinet Manual (Wellington: 2017), https://www.dpmc.govt.nz/sites/default/files/2017-06/cabinet-manual-2017.pdf, p 78 

¹⁰⁵⁰ NZ Royal Commission of Inquiry into COVID-19 Lessons Learned: Phase Two, interview with Brook Barrington (23 May 2025) 

¹⁰⁵¹ COVID-19 Public Health Response Act, s 9(1)(b), https://www.legislation.govt.nz/act/public/2020/0012/30.0/LMS344175.html

¹⁰⁵² COVID-19 All-of-Government Policy Strategy and Co-ordination Unit, Briefing to 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 14–16 

¹⁰⁵³ COVID-19 Public Health Response Act, s 9(1)(b), https://www.legislation.govt.nz/act/public/2020/0012/30.0/LMS344175.html 

¹⁰⁵⁴ Rt. Hon. Chris Hipkins, written response to NZ Royal Commission of Inquiry into COVID-19 Lessons Learned: Phase Two request (1 August 2025) 

¹⁰⁵⁵ Ministry of Health, New Zealand Pandemic Plan, A framework for action (interim update, July 2024), https://www.health.govt.nz/system/files/2024-07/interim_nz_pandemic_plan_v2.pdf, p 6 

¹⁰⁵⁶ Global Preparedness Monitoring Board, The Changing Face of Pandemic Risk, GPMB Secretariat (Geneva: 2024), https://www.gpmb.org/reports/m/item/the-changing-face-of-pandemic-risk-2024-report, p iv 

¹⁰⁵⁷ See s 67 of the Civil Defence Emergency Management Act 2002, https://www.legislation.govt.nz/act/public/2002/0033/latest/DLM150777.html and s 6 of the Epidemic Preparedness Act 2006, https://legislation.govt.nz/act/public/2006/0085/latest/DLM404484.html 

¹⁰⁵⁸ NZ Royal Commission of Inquiry into COVID-19 Lessons Learned: Phase One, Main Report (2024), Part 3 Section 10.3 (Lesson 6.2), https://www.covid19lessons.royalcommission.nz/reports-lessonslearned/main-report/part-three-moving-forward/10-3-lessons-for-the-future, pp 65–67 

¹⁰⁵⁹ Legislation Design and Advisory Committee, Legislation Guidelines (2021 edition), last updated September 2021, Chapter 14 Section 14.4, https://assets.ctfassets.net/6i3jqfgtuxyj/6aiZYGGoVQ4Kym4HcsdhaZ/0c429e6e0446174552aff55a36c073d9/LDAC-Legislation-Guidelines-2021-edition.pdf, p 74 

¹⁰⁶⁰ This was a feature of orders made by the Director-General under the COVID-19 Public Health Response Act 2020, which would expire after one month unless revoked or extended sooner. See section 14(4), https://www.legislation.govt.nz/act/public/2020/0012/30.0/LMS344182.html 

¹⁰⁶¹ National Ethics Advisory Committee, Finding Balance: Ethical principles for epidemics and pandemics (Ministry of Health, April 2025), https://neac.health.govt.nz/assets/Uploads/NEAC/publications/Finding-Balance-Ethical-principles-for-epidemics-and-pandemics-v2.pdf 

¹⁰⁶² Legislation Design and Advisory Committee, Legislation Guidelines (2021 edition) (last updated September 2021), Chapter 14 Section 14.1, https://assets.ctfassets.net/6i3jqfgtuxyj/6aiZYGGoVQ4Kym4HcsdhaZ/0c429e6e0446174552aff55a36c073d9/LDAC-Legislation-Guidelines-2021-edition.pdf, p 68 

¹⁰⁶³ Ministry of Justice, Advice on consistency of Bills with the Bill of Rights (last updated 19 December 2025), https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/the-bill-of-rights-act/advice/ 

¹⁰⁶⁴ For examples of commentary on engagement or consultation with Māori in the development of legislation, see:
Human Rights Commission, submission to the Regulations Review Committee Inquiry into the regulation-making powers in the COVID-19 Response (Vaccinations) Legislation Act 2021 and the COVID-19 Public Health Response (Protection Framework) Order 2021 (11 February 2022), https://www3.parliament.nz/resource/en-NZ/53SCRR_EVI_118276_RR1583/5c364f58807b388de3cfd079526d26be56e0994f
Te Hunga Rōia Māori o Aotearoa – The Māori Law Society, submission to the Regulations Review Committee Inquiry into the regulation-making powers in the COVID-19 Response (Vaccinations) Legislation Act 2021 and the COVID-19 Public Health Response (Protection Framework) Order 2021 (21 July 2023), https://www3.parliament.nz/resource/en-NZ/53SCRR_EVI_118276_RR1585/e00aa38475ec6f8ecd95db55de224861bb7ce48c
Human Rights Commission, submission to the Finance and Expenditure Committee Inquiry into the COVID-19 Public Health Response Act 2020 (June 2020), https://www3.parliament.nz/resource/en-NZ/52SCFE_EVI_97823_FE27114/2025bc2399e2b8fff1505628d61334c0e8af4d4c
The All of Government Law Reform Team's advice to the Finance and Expenditure Committee in 2020 was that there was 'merit in further consideration and engagement on specific Treaty interests if enduring emergency legislation were to be developed.', https://www3.parliament.nz/resource/en-NZ/52SCFE_ADV_97823_FE27885/684fc88dfb4292a0b29660ce1b88c862525421c1, at para 29 

¹⁰⁶⁵ Cabinet Office Circular CO(19)5, Te Tiriti o Waitangi / Treaty of Waitangi Guidance (22 October 2019), https://www.dpmc.govt.nz/publications/co-19-5-te-tiriti-o-waitangi-treaty-waitangi-guidance#introduction