Analysis: Covid-19 Response Minister Chris Hipkins has effectively promised that a more comprehensive mask mandate and a requirement to scan QR codes are on their way. But what are the legal hurdles?

While Cabinet will review and likely approve a new order under the Covid-19 Public Health Response Act to make mask use on all domestic flights and on public transport in Auckland mandatory, more comprehensive restrictions are on their way.

Covid-19 Response Minister Chris Hipkins told reporters on Friday that he would be taking a draft order to Cabinet to require people in the Auckland region to wear masks on public transport. The order will also cover all domestic air travel, even if the flights don’t start or end in Auckland.

However, he indicated future orders expanding the scope of the mask mandate and requiring people to scan QR codes before entering high-risk businesses or events – those with large crowds or those where social distancing is impossible – are also in the pipeline.

Opportunity for expansion

Hipkins said the focus was on public transport in Auckland and on domestic flights because these carried the highest risk in the current situation, where at least three community cases have been infected in the CBD in the past week-and-a-half. If more cases are out there, they are most likely to be in Auckland.

“There’s a more immediate need around Auckland and then around plane travel, obviously,” he said.

“We’re a very, very mobile country. People get around quite a lot. We want to contain risk as much as we possibly can.”

An order expanding the mask mandate to other cities with managed isolation and quarantine (MIQ) facilities or international airports would be looked at later in the week.

“Auckland at this point. But we will be looking at other areas and whether or not we differentiate other parts of the country as well,” Hipkins said.

He also implied he was convinced of the need for an order mandating the scanning of QR codes in high-risk settings – without one, he didn’t expect to see participation or uptake increase considerably.

“It may go up, but then it may go up only temporarily. We’re looking very closely at what we can do to get the usage back up on an enduring basis, because that’s where we ultimately need it to be.”

At the same time, Hipkins indicated there may be some obstacles to such a mandate.

“We’ve got some legal processes to work through. We’ve also got to look at the enforceability and the practicality of different requirements that we may put in place there.”

Legal obstacles not a concern

But Eddie Clark, a public law lecturer at Victoria University of Wellington, said there were few legal obstacles blocking either the mask mandate or the scanning one. In fact, the Covid-19 Public Health Response Act doesn’t even require the minister to take the order to Cabinet for sign-off.

What it does require is that the Health Minister be the person to issue the order. That, technically, isn’t Hipkins – as of last week, the Health portfolio has been split into two ministerial roles and the legislation has not been updated to reflect this. Hipkins is the Covid-19 Response Minister but the actual Health Minister is Andrew Little.

Clark said Little will likely have to sign off on the order in the end, even if Hipkins is actually in charge of drafting and setting it.

Beyond that, the Covid-19 Act gives the Government very broad powers to tackle Covid-19.

“The Act does say that the Bill of Rights Act has to be taken into account when making these orders. Both of those would be infringements on freedom of movement and freedom of assembly under the Bill of Rights Act,” Clark told Newsroom.

“But, the Bill of Rights allows for such restrictions or limitations as are justified in a free and democratic society and we saw in the Borrowdale case that, in the health situation then, the Court agreed that the very stringent lockdown was a demonstrably justified limitation.”

While the situation was different under Level 1, Clark thought the restrictions were “very light and if there’s a rational basis for thinking it might help prevent the spread of Covid-19, I think it probably meets the [legal] bar”.

No need to enforce

Clark also said enforceability was unlikely to matter. He pointed to the mask mandate on public transport under Level 2, which was specifically not enforced by police, as a guide for how these new orders might play out.

“We saw, in Wellington, that when we were at Level 2 and the mask mandate existed, some people didn’t wear masks but the vast majority of people did. You are achieving much higher compliance with the existence of a rule than you are where there’s exactly the same reason to do exactly the same thing but its advice rather than a rule,” he said.

Throughout the pandemic, New Zealand has taken a light touch on enforcement. Despite thousands of tips about lockdown breaches, police resorted to verbal warnings in the vast majority of cases and prosecuted only a few, intentional, repeat offenders. Clark also highlighted the anti-lockdown marches in Auckland under Level 3 and the June Black Lives Matter march under Level 2, both of which violated health restrictions but resulted in no arrests.

“The police justifiably, on occasion, get criticised, I think that they’ve taken a reasonably soft approach on this,” he said.

With the ability to issue a mask mandate and a scanning mandate clear and the enforceability issue put aside, the path seems wide open for Hipkins to implement these rules in the coming weeks. Health experts like Michael Baker and Siouxsie Wiles called for new restrictions to be put in place earlier this week as it became clear that people would not participate in public health measures if they were not made to.

Writing in Newsroom on Friday, Professor Philip Hill of the Centre for International Health, Department of Preventive and Social Medicine at the Otago Medical School called for mandatory masking.

“The difference in mask uptake between the period where mask use was mandatory and the period since, is huge, far greater than could be accounted for by any possible confounding factors, from an epidemiological point of view,” he wrote.

“The one thing that is outstanding about the arguments from the Prime Minister against making masks mandatory is how uncompelling the points made are. They simply don’t stack up.”

Marc Daalder is a senior political reporter based in Wellington who covers climate change, health, energy and violent extremism. Twitter/Bluesky: @marcdaalder

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