As Victoria locks down again over a second wave of Covid-19, Andrew Geddis looks at how New Zealand might respond should community transmission be again detected here 

Melbourne’s adoption of “stage 4” restrictions to combat its Covid-19 outbreak – stay-at-home orders, limited exercise time, a night-time curfew – are a timely warning to us here in New Zealand. While we may legitimately take pride in our early efforts eliminating the virus, its threat has by no means evaporated.

Border controls and strict isolation and quarantine protocols for arrivals help to mitigate that threat. But for these to protect us fully, they must catch each and every case of infection. In contrast, the virus needs to slip through the net only once to begin spreading again through the community.

If that were to happen, the response very much will depend upon how quickly we can identify Covid-19’s presence. That is why general community testing still matters so much. If we catch an outbreak early, we can contact trace those who may have been exposed and hopefully confine the virus’ spread quickly. That in turn is why people keeping a record of their contacts is so important.

However, one of Covid-19’s features is the lag between infection and symptoms developing (as well as the existence of asymptomatic carriers). This means that by the time the virus is detected, it has already been passed on quite widely.

As such, there may also be a need to impose wider controls on community behaviour to slow further transmission from as-yet-unidentified infected individuals. To use the language of just a few weeks ago, we may have to travel back up the alert levels. At very worst, we may have to ascend all the way to a Level 4 lockdown should Covid-19 re-establish itself widely.

There is no doubt the legal powers exist to impose such measures, should they be considered necessary. Although some of the actions taken during New Zealand’s initial lockdown have been challenged in court in the Borrowdale v Director General of Health case, these were taken under the Health Act 1956. It is fair to say there is some doubt as to the exact nature of the powers that legislation conferred.

In response to this uncertainty, New Zealand’s Parliament has since enacted the Covid-19 Public Health Response Act 2020. This legislation clarifies the powers available to the government to respond to Covid-19, makes it clear who is able to exercise these powers, and under what circumstances they may do so.

If some sort of local lockdown is required – say, to target a particular cluster of cases in one town – then the Director-General of Health Ashley Bloomfield is able to order it. If a nationwide lockdown is required, then the Minister of Health can initiate it after consultation with the Director-General and others in government.

The nature of any lockdown measures then will depend on what sort of outbreak is at hand. While such measures must be “proportionate” to the risk of the virus’ spread, they can require any person to undertake “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”. 

How, then, might those powers be used should community transmission of Covid-19 be detected in New Zealand? Might we, for example, see the addition of nightly curfews and compulsory mask wearing to the restrictions we already experienced under Level 4?

That question again depends on the facts at hand. Melbourne’s declaration of an overnight curfew is a response to the flouting of the existing stay-at-home requirements, as people continued to gather in groups at each other’s houses. That behaviour in turn seems to reflect some muddy messaging about when it was okay to visit others in their homes.

By contrast, New Zealand’s clear “keep to your bubble” messaging and extremely limited reasons for leaving your home left little doubt about what was expected. Although there were some reports of house parties being broken up by the police during the lockdown period, the vast majority of people followed the rules both in the day and at night. As such, there was no real need to impose a curfew.

However, it is entirely possible that any future lockdown measures in New Zealand will include the compulsory wearing of face masks in at least some public settings. The science on mask’s effectiveness was a matter of early debate, with our Ministry of Health’s public stance as of June 12 continuing to be that: “There is no convincing evidence one way or another to require the use of non-medical face masks for healthy people in the community to protect from Covid-19”.

I suspect that position may change should the virus begin to circulate again. Although I am not an epidemiologist and so cannot give an expert opinion, there does now appear to be reason to believe that face masks help to significantly reduce the risk of transmission.

Consequently, should it become necessary for New Zealand to reimpose some form of Covid-19 lockdown, we might expect to see the same sorts of compulsory mask-wearing orders imposed in Melbourne since July 19, and now in place for the rest of Victoria. Which is something that our law now permits (while the earlier Health Act 1956 probably didn’t), and which a failure to comply with can result in a fine or even up to six months in prison.

Professor Andrew Geddis is the co-ordinator of external affairs at the University of Otago's Faculty of Law.

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