The Delta variant of Covid-19 is currently making its impact felt throughout New Zealand, creating uncertainty for the whole country.  The Government is pushing to get as many people vaccinated as possible and as part of its response is making plans to restrict access to large-scale events for unvaccinated people.  The Ministry of Health has recently announced that digital vaccination certificates are in the pipeline and these will be vital in allowing access to summer festivals and events and protecting those attendees.

How far this restricted access could extend is a question yet to be answered by the Government. Questions have been raised as to whether it will extend to the likes of cafes and restaurants, supermarkets and even health care providers, such as pharmacies.

The reason we are yet to receive any clear guidance is because there is currently no right answer.

The New Zealand Bill of Rights Act 1990 provides that everyone has the right to refuse to undergo medical treatment and the right to freedom from discrimination on the grounds set out in the Human Rights Act 1993.  Those grounds include religious belief or physical illness.  Restricting an individual’s access to a public place is also a breach of that individual’s human rights.  The Human Rights Act makes it clear that it is unlawful for a person who supplies goods or services to the public to refuse to provide those services or treat an individual less favourably due to one of those prohibited grounds.

These rights can be subject to “reasonable limits”, however, provided such limits are demonstrably justified in a free and democratic society.  The Government may assess over the coming months whether public health can be a reasonable limit which would allow it to restrict access of unvaccinated individuals to public places.

From an employer perspective, concerns are being raised about who can be restricted to enter their premises and on what basis.  The Health and Safety at Work Act 2015 places an obligation on employers to ensure “a work environment that is without risks to health and safety”.  Employers have an obligation to keep their employees and customers safe and it is arguable that allowing unvaccinated people in could jeopardise that, particularly if any of those people are immunocompromised or unable to be vaccinated due to health reasons.

On the other hand, it is clear that there will be people who will not get vaccinated.  It may be that sufficient limits are already in place, being the health and safety measures New Zealanders have already been practising since the Covid-19 outbreak in 2020 – physical distancing, basic hygiene, staying home if unwell and now mask wearing.

These competing legal rights show that there is a fine line between an individual’s right to freedom from discrimination and an individual’s right to be in a safe environment.  The next few months will show where the Government believes this line should be drawn.