State of National Emergency declared – Expert Reaction

A State of National Emergency has been declared as part of New Zealand’s response to the COVID-19 pandemic.

The declaration came into effect at 12.21pm and yesterday an Epidemic Notice was issued, which came into effect just after midnight.

Both measures provide powers for Government to move the country to Alert Level 4 at 11.59 tonight. It is the second time a state of national emergency has been declared, the first was on 23 February 2011 following the Christchurch earthquake.

The SMC asked experts to comment on the new measures. Feel free to use these comments in your reporting or follow up with the contact details provided.

Professor Andrew Geddis, Faculty of Law, University of Otago, comments:

“With the declaration of a state of emergency and issue of an epidemic notice, New Zealand’s Government has taken on powers that haven’t been seen since the 1951 Waterfront dispute.

“The police (and the army, if needed to support the police) are empowered to order any person to stop any activity that contributes to the current emergency – essentially, spreading COVID-19 in the community. Government ministers may set aside virtually any legislative provision that becomes impracticable to apply while the epidemic is in force.

“These give the state extraordinary reach into our lives, and transfer extraordinary power to the executive branch. They are a marker of just how severe the threat that this virus poses to us all.”

No conflict of interest.

Louise Delany, Senior Lecturer at the Department of Public Health, University of Otago, comments:

“Powers under New Zealand’s emergency legislation have been invoked and, as of 25 March 2020, are in force. This has not required new legislation: the existence of the several statutes that make up our legislative framework were already in place.

“What is new is that powers under this framework can now be used, following processes for invoking emergency law having been followed and conditions for emergency law met. These processes and conditions are spelt out in the relevant specific laws.”

The Health Act 1965

“This Act has routine powers which may apply to infectious diseases if they are specified as such under the Health Act – as well as emergency powers. Covid-19 is legally an infectious disease, as of 30 January 2020. Given Covid-19’s recognition as an ‘infectious’ disease, health practitioners and laboratories are required to notify suspected cases to a Medical Officer of Health.

“The Health Act also has specific provisions relating to emergencies, although it does not use the term ‘emergency powers’. Instead it employs the term ‘special powers’ (which means more or less the same thing as emergency powers) for Medical Officers of Health under sections 70 and 71.

“These special powers include: requiring people to be isolated, quarantined or disinfected; requiring people to report or submit to medical examination; requiring people to remain where they are, isolated/quarantined, until medically examined and are free from infectious disease, requisitioning equipment such as vehicles, and use land or building.

“The Health Act was also amended as of 11 March 2020 to specify Covid-19 as a quarantinable disease. This enables provisions in Part 4 of the Health Act (relating to quarantine at the border) to apply.”

The Epidemic Preparedness Act 2006

“This Act is relatively new, and was developed following a re-evaluation of New Zealand’s emergency management framework following concerns about the implications of any outbreak of infectious disease. (The disease which had prompted this consideration was the outbreak of avian influenza, though this did not turn out to be significant for New Zealand).

“The Act only applies to a disease which is a ‘quarantinable disease’, as specified in the Health Act. As noted, Covid-19 is now, as of 11 March 2020, a quarantinable diseases.

“The purposes of the Epidemic Preparedness Act are to enable Government agencies to try to prevent the outbreak of epidemics in NZ; respond to epidemics; respond to possible consequences of epidemics (occurring here or overseas) and to ensure that certain activities normally undertaken by people and agencies interacting with Government agencies can continue to happen during an epidemic; and to enable some statutory requirements to be relaxed if not able to be complied with, or complied with fully.

“Provisions relating to the ‘epidemic notice’ enable the Prime Minister to issue an epidemic notice only if the Director-General of Health so recommends. The Prime Minister must also have the agreement of the Minister of Health.

“The Prime Minister must be satisfied that the effects of an outbreak of stated quarantinable disease are likely to disrupt (or continue to disrupt) essential government and business activity in NZ (or parts of NZ), although the outbreak can be overseas or in NZ.

“An epidemic notice lasts for three months maximum, but is renewable and also modifiable. Under the Act, Parliament must meet soon after an Epidemic Notice has been made.

“The Act automatically enables the use of special powers (section 70 and 71, noted above) under the Health Act.”

No conflict of interest.