Why can’t I play frisbee at the park?

Our day-to-day lives are now dictated by the Government.

Dr Duncan Webb, MP and former Professor of Law, unpacks the law behind these extraordinary restrictions.

How far from my house can I walk? Why can’t I play frisbee at the park? Why is a bottle store open in Invercargill? Most importantly where can I find the answers to questions like these and what is the source of the extraordinary powers that government officials now have? The powers of the police and Director General of Health are not unlimited, but it takes some untangling to find out what they are and where they come from.

The genesis of the extraordinary powers was a relatively small step – the adding of the COVID-19 to the list of infectious diseases notifiable to a medical officer of health by the Infectious and Notifiable Diseases Order 2020. It amended Schedule 1 of the Health Act 1956, was passed on 28 January and came into effect on 30 January 2020. It meant that COVID-19 became a notifiable disease, and by the Infectious and Notifiable Diseases Order (No 2) 2020 was also made a quarantinable infectious disease on 11 March. There is a long list of notifiable diseases, from the life-threatening, like typhoid, through to the merely serious. However there are very few quarantineable diseases but some include bird flu, cholera, the plague, and yellow fever. This step put the powers found in the Health Act in place.

The next step was on 24 March with the declaration by the Prime Minister that the effects of the outbreak of COVID-19 are likely to disrupt or continue to disrupt essential governmental and business activity in New Zealand significantly. That was done with the agreement of the Minister of Health and on the recommendation of the Director-General of Health by the Epidemic Preparedness (COVID-19) Notice 2020 which switched on the powers in the Epidemic Preparedness Act 2006.

Shortly thereafter Ashley Bloomfield, who had just become a very powerful person, made an order under section 70(1)(m) Health Act. The scope of the order was extraordinary – it required “all premises” to close (with limited exceptions) and forbade people to “congregate in outdoor places of amusement or recreation”. The exception identified the premises of “essential businesses” and – even more extraordinarily – stated that that term means whatever is currently described as an essential business on the COVID-19 website. 

Finally on 26 March, just before midnight, the Minister of Civil Defence announced that owing to the impact of COVID-19 there was a National State of Emergency – the first since the waterfront strikes of 1951, thus enabling the wide powers set out in the Civil Defence Emergency Management Act 2002.

Together these various notices and orders give enormous powers to officials including the police. However those powers are not unlimited. Section 70 of the Health Act enables the Director General to take almost any steps to control a disease including testing and quarantining people, restricting travel (which he has not yet done notwithstanding unofficial statements) and much more besides. It even grants a power of entry into homes by police to ensure compliance, however it is of note that homes are expressly carved out of orders closing premises and prohibiting congregating.

However the powers triggered by s 91 of the Civil Defence Emergency Management Act 2002 are even greater. The police (or the Civil Defence Controller) can “direct any person to stop any activity that may cause or substantially contribute to an emergency” – like playing frisbee. So while the Director General’s order under the Health Act is relatively narrow, the powers of the police which arise because of the declaration of a National Emergency under the Civil Defence Act are broad indeed.

A fine of up to $5000 (of $50,000 for a company) can be imposed for a breach. Such fines are obviously unlikely – but if a big corporate were to flout the requirement on non-essential businesses to close such a fine would not be out of the question.

However the police do have some modest constraints. They (and anyone acting under these powers) must be able to produce ID if requested and give a general explanation of their authority and the power being exercised. Exactly how police intend to exercise these powers is unclear. While guidelines for police actions in civil defence emergencies were updated in 2015, they do not directly relate to the current situation. Undoubtedly informal guidance is given to police, but that is not something publicly available.  

On a brighter note, the declaration of an epidemic has enabled the government to respond at lightning speed to address some immediate and pressing issues like income support, immigration and so on. In particular it triggered provisions in the Social Security Act 2018 which enabled grants to be made outside of normal circumstances. Many other government functions like those of courts, parole boards are also adjusted to allow for business to continue in changed conditions. 

Parliament, however, is carved out of all of these provisions. As the ultimate sovereign authority and source of accountability for government it will never be subject to executive control. However the Business Committee of Parliament (chaired by the Speaker) has made resolutions to very much pare back the operation of the House while the epidemic continues. Parliament has sought to preserve its accountability function by the setting up of a special Epidemic Response Select Committee to ensure scrutiny of government action at the present time.

The powers of the police are wide indeed – however they must either be directly linked enforcing the orders of the Director General of Health (to close non-essential businesses and prevent people from congregating) or be to prevent action that may actually “cause or substantially contribute to an emergency.” They cannot simply do what they like.

Most New Zealanders are following the advice, guidance and requests of authorities for the good of everyone – even if there isn’t (currently) a legal obligation to do so. The police’s ability to use powers of persuasion over compulsion has long been one of their strengths, so a gentle enquiry of a citizen as to the need to be driving so far from home or so late at night is just as effective as (and far more legal than) an outright prohibition.

So while the powers of the police, the Director General of Health, and the Controller of Civil Defence are not unlimited, they are certainly broad. Most important is the ability to simply give a direction to stop an activity – which must be followed – providing the activity would have the effect of substantially contributing to the emergency. While that is an objective test, the advice we are getting from Ashley Bloomfield is that playing frisbee will do just that, and he ought to know.