A prominent lawyer is questioning whether the emergency legislation that gives the Government the right to control Kiwis' freedom of movement is still justifiable now that Omicron is the main variant.
Lady Deborah Chambers QC argues that given the COVID-19 situation has changed, it's no longer appropriate.
"The Bill of Rights, which does guarantee our freedom of movement and right to come in and out of the country as New Zealanders, is just not entering the discussion," Chambers told AM on Wednesday.
"It seems to me, now that the facts have changed and we are dealing with a much milder form of the virus, the Government is breaching its obligations under the Bill of Rights in terms of protecting our fundamental rights to freedom of movement and the ability to go in and out of New Zealand."
Chambers said New Zealand's legislation sets out a series of rights that are subject "only to such reasonable limits as can reasonably be demonstrated and justified in a free and democratic society".
"My point is that given how low the risk is now of dying of this disease, given the 95 percent two shots campaign and given the fact that New Zealanders are doing social distancing and are careful - you can no longer justify the extent of the control on our freedom of movement by this Government."
In 2020 the Government declared a state of national emergency in New Zealand giving it additional powers to fight COVID-19. Prime Minister Jacinda Ardern also issued an epidemic notice enabling the use of a number of 'special powers' in legislation, to help tackle the coronavirus.
The powers under New Zealand's emergency legislation did not require new Bills to be passed. The existence of several statutes that make up the country's legislative framework were already in place, and were simply enacted.
The Health Act 1965, for example, allows the Government to require people to be isolated, quarantined or disinfected, force people to remain where they are, and requisition equipment, vehicles and buildings.
The epidemic notice is still in place and will last for three months from December 18, 2021 unless the Government chooses to lift it earlier. The notice can be extended again if required.
Chambers' comments come after she wrote an opinion piece in the NZ Herald questioning the powers on Wednesday.
In the article, she said the closed borders and mandatory managed isolation requirements "cannot be demonstrably justified as reasonable".
But Chambers told AM the vaccine mandate, which has sparked protests in Wellington, is more complicated.
"The rights you have under the Bill of Rights is the right not to have medical treatment that you do not consent to. The argument is that the Government has not breached that because, of course, if you choose not to have the vaccine, you don't have to have the vaccine.
"The only argument against that is, well do you really have a choice given that you will lose your job and can't go out to certain places or go on planes… and you're having your freedom of movement restricted. But that argument has been run in the courts and has been lost and you can see it is a more complicated argument."
It comes after New Zealand reported 2846 new community COVID-19 cases on Tuesday and 15 at the border.
The Prime Minister's office has been contacted for comment.
