What do these new powers mean for businesses, employers and their people?
A state of emergency gives legal weight to the obligation to cease conducting any business that does not amount to an essential service. Together, the announcements signal a range of other obligations to co-operate with medical officers, police and Civil Defence, and a need to be aware of the penalties for not doing so.
The epidemic notice also activates a range of dormant provisions in the Immigration Act which allow the extension of existing temporary entry class visas and to give judges the ability to deal with immigration matters without requiring attendance.
State of emergency
The Civil Defence Emergency Management Act (CDEMA) sets out the powers that may be exercised following the declaration of a state of emergency in New Zealand. Most relevant to the obligation to cease conducting any business which does not amount to an “essential service", the CDEMA grants the following powers to the National Controller of Civil Defence Emergency Management, or to any Police constable:
- The power to exclude persons from any premises or place, including any public place where they consider such exclusion is necessary for the preservation of human life.
- The power to break into any premises or place if they believe, on reasonable grounds, that that action is necessary for saving life, preventing injury, or removing endangered persons.
- The power to restrict public access to any public place.
- The power to direct any person to stop any activity that may substantially contribute to an emergency (e.g. working in non-essential services), or to request any person to take any action to prevent or limit the extent of the emergency.
Penalties for failing to comply with powers under the CDEMA
On conviction of an offence under the CDEMA the penalties are:
- Imprisonment for a term not exceeding three months, or to a fine not exceeding NZ$5,000 (or both) an individual.
- A fine not exceeding NZ$50,000 for a body corporate.
The formal Epidemic Preparedness Notice (EPN) gives the Medical Officer of Health additional powers, including to require places, buildings and people to be isolated, quarantined, or disinfected as they think fit; or to require
- by order published in a newspaper or by announcement broadcast by a television channel or radio station that can be received by most households:
- require all premises within the district (or a stated area of the district) of any stated kind or description to be closed, and
- forbid people to congregate in outdoor places of amusement or recreation of any stated kind or description (whether public or private) within the district.
Police are also able to do anything reasonably necessary (including the use of force) to help a medical officer of health exercise these powers, and ensure compliance – including assisting medical officers to enter into and inspect any building.
Penalty for breaching an order which restricts access to work premises
The Health Act provides that a person who:
- does anything forbidden by a medical officer of health,
- fails or refuses to comply with, or delays complying with, a direction or requirement of a medical officer of health, or
- does, or delays ceasing to do, anything prohibited by a medical officer,
- commits an offence, and will be liable to a term of imprisonment not exceeding six months, or a fine not exceeding NZ$4,000 (or both).
In addition, where a police officer is doing something he or she has a legal duty or power to do, and the exercise of the power is reasonable in the circumstances and it is exercised in a reasonable manner, the refusal or failure to cooperate with the officer's direction may amount to an obstruction. This is an offence under the Summary Offences Act and carries a penalty upon conviction of imprisonment for a term not exceeding three months or a fine not exceeding NZ$2,000.
Employers should also note changes to existing temporary entry class visas with the issuance of an epidemic notice.
This is relevant to people who are in New Zealand reliant on a temporary visas that will expire after 2 April 2020 and before the EPN issued yesterday. Temporary visas include visitor visas, student visas and work visas.
The EPN activates a number of emergency provisions including some affecting people who are in New Zealand on temporary visas. While this note is focused on work visas, the principles apply equally to those on visitor visas and student visas.
Temporary work visas include (but are not limited to) those issued on the basis of Essential Skills and those issued for a Specific Purpose. The EPN has a commencement date of 25 March 2020. However, for the purpose of its effect on identified provisions in the Immigration Act the commencement date is 2 April 2020.
This note only comments on section 78 of the Act, which covers what happens to the visas of temporary visa holders which expire during the period that starts on commencement of the EPN – 2 April 2020 – and before the date that is 14 days after the EPN expiry date (which was not explicitly stated). Under the Epidemic Preparedness Act 2006 the EPN will expire, unless renewed, on the earliest of the day that is three months after the EPN's commencement, or as notified by the Prime Minister.
People in this category can rely on the combined effect of the EPN and the Immigration Act so that their visas will be treated as if they remain current allowing them to stay in New Zealand until either for some other reason their visa is cancelled or until three months after expiry of the EPN. They do not need any endorsement or modification of their visa. No document needs to be issued and no new visa needs to be granted.
Care may need to be taken to avoid a situation where, for example, redundancy prior to 2 April 2020 leads to a breach of a visa leading to cancellation before the concessionary provisions are able to provide relief.
If you would like assistance in assessing how your obligations might be affected by COVID-19, please get in touch with the contacts listed or your usual Bell Gully adviser.
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Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.