Vaccine passports likely won’t be mandatory in New Zealand – legal expert
People are unlikely to be legally required to provide business owners with vaccination passports to use their services.
Health, customs and transport officials worked this year on establishing a health card system.
It was originally intended for international travelers, but is likely to be rolled out nationally.
Legal advice suggests that any forced use of passports in a national setting could be challenged under human rights law.
RNZ understands that officials could be on uneven ground if they attempt to make Covid-19 vaccination passports mandatory in places like restaurants and bars, or at events such as rugby matches or concerts.
As such, any initiative regarding vaccine certificates will see the responsibility fall on the business owners, who will be given a moral decision as to whether to serve people without vaccination verification.
Restaurant Association executive director Marisa Bidois said it would be unfair for small businesses.
“Some of the main concerns of companies in this discussion were that they would have to manage the process for this,” Bidois said.
“I think it’s a lot to ask a small or medium business owner or any business for that matter to potentially control this kind of system.”
Bidois said support for mandatory vaccine certificates to access restaurants had declined in the past two months.
Before Auckland’s current lockdown, around 70% of restaurants surveyed said they broadly supported a vaccine passport system, but this has fallen to 50% more recently.
“A lot of people were pretty reluctant to implement something like that unless it was mandatory, you know, unless they didn’t have to.
“Some, however, have jumped on board and we’ve seen that there are business owners who support this and it’s something that, some are looking for ways to implement it into their business right now.”
Sherridan Cook, partner at Auckland law firm Buddle Findlay, said it seems unlikely to force the use of vaccination passports in a domestic setting.
He said it could be done, but the big question from a legal perspective is the risk posed by customers.
“The Bill of Rights Act in New Zealand does not have the status to override other laws,” Cook said.
“The government is supposed to act under the Bill of Rights Act when it legislates for things like this. But it cannot be used to override it, like in the United States where the U.S. Constitution could be used to override legislation. .
“There could still be challenges from the people under the Bill of Rights Act, but again, it comes down to it, is it a justified limitation on the freedom of movement of people? “
Sources at RNZ said a mandatory vaccination certificate framework could end up being similar to the mandatory digitization rules in place across the country.
While Prime Minister Jacinda Ardern has made it mandatory for people to scan or log into businesses for contact tracing purposes, there is no such law for individuals.
The law only states that companies must provide people with the ability to scan or connect.
Businesses don’t have to force people to register.
Cook said a similar rule would make sense given the current threat of the virus, and that it would put the onus on business owners.
“For now, in this kind of predictable future where, well, we might not be too badly, it will depend on the companies.
“And some of them will make it a marketing step, they’ll say come to our store or whatever because, you know, everyone who works here is vaccinated and we only let in people who are vaccinated.”
The Department of Health’s national head of digital services, Michael Dreyer, said the My COVID Record service would be made public by the end of the year.
He said the vaccination certificates will meet international standards and most likely will take the form of a QR code that can be scanned and verified.
This raises other issues for businesses, like how they should digitize such documents and whether it should come out of their own pocket.
Covid-19 Response Minister Chris Hipkins said proof of first-stage vaccination would be available for people in the coming weeks.