The Government is currently putting in place the legal basis for
the new COVID-19 level 4 World we will all be in from 11:59pm on Wednesday 25
Yesterday the Government Gazetted an Epidemic Preparedness
Notice under s 5 of the Epidemic Preparedness Act 2006 (EPA). This
ensures that there is statutory power for government agencies to respond to
COVID-19 in New Zealand, largely by allowing measures to be taken quickly to revise any
legal instruments impeding the effective management of the epidemic.
The EPA as a generic framework has its limitations and may not be
able to address a range of legislative modifications that the commercial world
might need to navigate through the coming months, and amendments to the EPA
itself may be required to give Government the flexibility it will need.
EPA Gazette notice does not in itself implement the Government’s
COVID-19 level 4 measures, including the requirement that people involved in
non-essential services stay home for the next four weeks. At 12:21 pm
today, the Minister for Civil Defence declared a state of emergency under the
Civil Defence Emergency Management Act 2002. In addition, the Government
will likely rely on the broad powers available under the Health Act 1956
(particularly s 70). Further legislation is possible.
the recent experience of a number of other countries in trying to strictly
manage and enforce similar measures, it is important that the relevant legal requirements
are clearly set out in a way which can be both understood by the public and
enforced by appropriate government agencies.
Key questions and answers for the commercial sector
In the interim, those operating in the commercial sector have many
questions. We have compiled some FAQs and have endeavoured to answer them
based on our current understanding of the situation (as at 25 March 2020):
1. Is my business an essential
service/business and how do I check?
Government has issued (and will continue to update) a list of essential businesses which it considers provide essential
services. While there is plenty of grey area around these definitions, a
good indication of what the Government intends is the definition of essential
services as providing the “necessities of life for everyone in New
Government has set up an email address (firstname.lastname@example.org)
to answer specific queries about whether particular businesses are considered
essential in the current circumstances.
my business is an essential service/business, do I have to continue to provide
commercial businesses the answer is generally no – being an essential service
does not mean you have to continue to provide that service. Some
utilities and lifeline services do have certain obligations, but generally you
are free to hunker down and wait out the virus if that’s your preference.
the Government requisition my property or that of my business?
Government can in certain circumstances requisition property (including for
example medical equipment or business premises) under the Health Act 1956 and
the Civil Defence Emergency Management Act 2002.
my business is an essential service/business and I keep it open, what are my
obligations under the Health and Safety at Work Act 2015?
because your business is an essential service does not remove your obligations
as an employer under the Health and Safety at Work Act 2015.
require your employees to continue to work, it must be a reasonable requirement
in all the circumstances, and you need to take all practicable steps to ensure
the risk of infection is appropriately managed (for example, implementing
shift-based working, staggered meal breaks, flexible leave arrangements and
physical distancing). However, in doing so businesses should make sure
that their COVID-19 protective measures do not inadvertently create other
material risks or undo other protections that are in place to manage the
non-COVID-19 risks associated with the workplace.
about co-operation between essential services/businesses?
Government has already turned its mind to the question of whether businesses
providing essential services can cooperate in ways that would assist the
Government’s response to the COVID-19 pandemic, even though they might
technically breach competition laws requirements in New Zealand as set out in
the Commerce Act 1986.
the Government issued an economic policy statement pursuant to s 26 of the Commerce Act 1986 indicating that one of
the Government’s objectives in responding to the COVID-19 pandemic in New
Zealand was to “facilitate the sale and supply of grocery products and other
essential goods and services in an equitable manner”. While the
policy statement goes on to say that the Government does not endorse behaviours
such as price gouging and hoarding, the statement is clearly intended to
facilitate businesses acting collaboratively to ensure that essential goods and
services are able to be delivered to New Zealanders during the period in which
COVID-19 is affecting the economy.
are my obligations to the public as a service provider (e.g. operating a
As well as
having obligations to their employees, a person conducting a business or undertaking
has obligations to the public using its services. This would require you
again to take all practicable steps to appropriately manage the risk of
is this all going to be enforced?
Overseas, many countries have resorted to prosecutions to enforce
similar measures, and the Health Act 1956 and the Civil Defence Emergency
Management Act 2002 both facilitate similar responses in New Zealand in the
case of non-compliance.
8. How long this can all go on
Even though the Government has
signalled that the COVID-19 level 4 measures will last a minimum of four weeks,
the Epidemic Preparedness Notice which has been issued is active for three
months, unless a revised notice is issued before then. More relevantly,
the expected declaration of a civil defence emergency and any requirements
issued under the Health Act 1956 will likely govern the true duration of these
This is one of a series of Brief Counsels Chapman Tripp has produced on COVID-19. See the full list of COVID-19 releases here.