Wheels already coming off Ardern’s covid passport plan

Hospitality NZ is worried it will break the law in imposing the so-called covid passport on clients wanting to eat and drink in venues such as cafe’s, restaurants, bars and hotel dining areas.

In a press release issued Friday, its CEO Julie White said she agrees with the use of vaccine certificates to get back to ‘normal business’ after 90% of (the eligible) population is vaccinated “but industry’s fury is growing” that business owner risk breaking the law.

White says her organisation advised the Government in a submission yesterday (Thursday 7 October) on its vaccination certificate scheme, that a specific law was needed to exempt companies from the Bill of Rights, Privacy Act and Human Rights Act.

That’s three laws every establishment risks breaking every time a punter enters their premises.

“We support vaccination certificates, because we’re desperate to open, but the Government must pass a law that protects us from legal action and costs,” says White.

Read that again, they are desperate to open and will agree to sign your rights away to do it.

“Delta is here to stay so we need a way out,” says White. “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.

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

White says the situation was far more complicated than the government proposal appreciated (isn’t it always?).

“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,” she says.

The Hospitality NZ commentary on the Government’s plan detailed 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,”White said.

Hospitality New Zealand is New Zealand’s leading nationwide hospitality industry association covering commercial accommodation and food and beverage businesses. It is a not-for-profit organisation that supports over 3,000 members. To find out more visit www.hospitality.org.nz, or connect on Twitter, Facebook, Instagram or LinkedIn.