COVID-19: How public health rule-breakers can be prosecuted

Health officials are reluctant to initiate legal action against a young man who failed to isolate while he was potentially infectious - despite calls for the Government to crack down on rule-breakers. 

The 21-year-old Manukau Institute of Technology (MIT) student, also referred to as Case M, did not isolate while awaiting the result of his COVID-19 test, instead visiting a gym and attending university throughout the week. As a result, Auckland was plunged back into lockdown for a provisional seven-day period.

A number of cases in Auckland's existing cluster have come under scrutiny for failing to isolate. Case J and Case L, household contacts of Case I, a student at Papatoetoe High School - the school at the centre of the cluster - went to work while they were potentially infectious. Case L, an employee at KFC in Botany Downs, has since claimed the family was not instructed to isolate and asked for an apology from the Prime Minister.

On Tuesday, Director-General of Health Dr Ashley Bloomfield said he believed the families to be "extremely remorseful" and suggested the intense public backlash had been enough of a punishment

Dr Bloomfield said he had not been thinking about the possibility of referring the case to the police for prosecution, saying he was more focused on "containing the outbreak".

He added that a punitive approach to public health breaches may discourage people from coming forward - echoing the stance of both Prime Minister Jacinda Ardern and COVID-19 Response Minister Chris Hipkins.

On Sunday, Ardern confirmed the police will be involved if health officials suspect people are defying public health orders.

"If we have any concerns that those who are meant to be isolating are not, [the Ministry of] Health will work with police to check in on those that we feel the need to," she said.

Yet despite the reluctance to punish those who break the rules, there is already legislation in place that outlines penalties for those who fail to follow official instructions.

Speaking to The AM Show on Tuesday, Massey University Law Professor Chris Gallavin said a prosecution could be easily initiated, as there is already law in place to support that. 

Legislation passed last year gave health officials the power to enact COVID-19 Orders, which cover elements of the response such as testing and managed isolation and quarantine facilities (MIQ).

"Flagrant, intentional breaches of those COVID-19 Orders can carry a $4000 fine or six months imprisonment," Gallavin explained.

"If it's an unintentional slip-up, the legislation provides a $300 infringement notice, or if it's referred to the courts, it can be a $1000 fine."

Rule-breakers could also be charged under the Crimes Act, Gallavin said, such as for criminal nuisance.

It's not the Prime Minister's decision

Speaking to The AM Show on Monday, Ardern declined to comment on whether the families should face legal action, saying it was not her decision to prosecute those who break the rules.

"Do I want people to understand the consequences? Yes, but my job is twofold - first, to prevent people dying and second to get people to follow the rules," she said.

"I find this a difficult dilemma and that's why I'm pleased it's not my decision."

Gallavin confirmed that in these instances, the decision whether or not to prosecute a person for flouting the rules is not made by the Prime Minister.

"The Prime Minister is absolutely right, saying it's not her decision - it's a police decision, through the Solicitor-General and the Attorney-General... the police and the Solicitor-General are independent of the political side of things," Gallavin explained.

"It's not a case of the Prime Minister saying, 'this is the agenda for prosecution' - it's actually a police issue.

"The police are the ones who bring the charges… they're the ones who independently investigate it."

However, a police investigation would be hindered if health officials fail to provide the information on the case in question.

"They are hampered, in a sense, by [a lack of] information - if a file is not referred to them, they might not have the evidence they need to do the investigation," Gallavin said.

"The issue is not a gap in the law. It's actually a policy on whether people who breach COVID-19 Orders are to be investigated and prosecuted. Up until now there's been an [educational] approach by the New Zealand Police and now we'll hopefully start seeing a segway into a more nuanced approach - that there may be prosecutions on a case-by-case basis."

However, Gallavin said New Zealanders should not rely on the idea that police investigations and legal action will protect the public, echoing Dr Bloomfield's belief that the best defence is remaining united as a team of five million.

"You're outraged, I'm outraged, everybody is angry… but let's not kid ourselves that the enforcement of the law is going to be the silver bullet to protect us all… because if our frontline defence is the enforcement of a $300 or $4000 fine, then perhaps that's not going to be sufficient to protect us," Gallavin said.

"We really do need that team of five million to stay together."