New Zealand

Legal risks over vaccine certificates incites industry fury

“Survival at stake” as government called on to protect industry members

While Hospitality NZ (HNZ) agrees with the use of vaccine certificates to return to normal business after 90 percent of New Zealanders are vaccinated, the organisation has called on the NZ government to take action to protect the industry from potential legal ramifications the scheme may have.

CEO Julie White said HNZ has advised the Government in a submission addressing its vaccination certificate scheme launching later this month, that a specific law is needed to exempt companies from three key components of law, specifically the Bill of Rights, Privacy Act and Human Rights Act.

“Reaching a 90 percent vaccination rate will allow businesses to operate again, so we support vaccinations, and using vaccination certificates,” she said.

“If our members start using certificates to deny entry, they will immediately breach three pieces of legislation. There are members of the public just waiting to take a hospitality business to court.”

“Our members can’t afford to run this system, bear the brunt of public antagonism, and risk breaking the law.”

“Our members are frustrated and angry that the Government has left this so late, putting us under pressure to do something drastic, without legal protection.

“They know we’re desperate – we’ve sacrificed $24m a day in following the Covid-19 health response. Our survival is at stake, and dozens have already closed for good.”

The HNZ commentary on the Government’s scheme details the problems not identified in the plan:

Using health and safety laws would require each business or venue to justify discrimination based on a health and safety assessment specific to its venue, and it is doubtful that such assessments can legally be used to support a society-level health objective.

Discriminating against non-vaccinated people will be a prima facie breach of the Bill of Rights provision that people can refuse medical treatment. The threshold for a breach is low and there is no certainty about how a Court would judge.

Human Rights Act prohibits discrimination on grounds of things such as pregnancy, religious and ethical beliefs, and political opinion. The use of vaccine certificates is likely to be challenged on these grounds.

A certificate scheme is likely to require divulging medical information and unique identifiers, which run contrary to values in the Privacy Act, though the scheme itself might not be in breach.

A public health order mandating that hospitality workers must be vaccinated provides no guidance on how to comply without breaching employment laws.

“Without protection of a law, businesses, workers, the public and the Police will all face legal uncertainty and costs in trying to carry out a certificate scheme.” 

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