Ep 61 N8 12th Jul 23 - The Order Writers Screw Up

Oh wow!! Join Us Tonight For the Juicy Details!
More amazing legal insight from Liz from her visit supporting Ants in Rotorua DC.

You wont want to miss it!

Timeline:
01:10 Liz: Happenings re Ants hearing at Rotorua District Court – Highest ridiculous fines of $48k+ from Worksafe – Lackofsence not incent lol 😊 – Proposed action plan Section 168 Health and Safety Work Act 2015, powers of entry and inspection – Subsection 4 explained, Worksafe is not allowed to get any information off the PCBU about a worker’s Health status without the workers consent – Liz discusses the aftermath of the mandates on Rotorua such as loss of workforce, tourism and more – Reminder of rights against HWSA regulator Worksafe and discrimination in the pre-work area

07:04 Liz: Court happenings – Judgement was made, and they were waiting to collect $$ - Deputy registrar provides charge sheet and form for out of time hearing – Maritime law – Charge is under the repealed Health and Safety in Employment Act 1992 not the current Health and Safety at Work Act 2015 (HSWA) – Vehicle registration infringements?

11:00 Liz: Three Act play with an order – Broken chain of authority – Clause 8 COVID-19 Public Health Response (Vaccinations) Order 2021 - Duties of relevant PCBUs in relation to vaccinations – These orders related to people in the workplace, there no orders for people in the public – Although supposed to be a public health measure – Parent Act is COVID-19 Public Health Response Act 2020 (PHRA) – Section 18 PHRA - Authorised enforcement persons, lists the enforcers and what they can do – Enforcer Worksafe, is only the regulator of HSWA only

15:39 Liz: Watch Liz marry up these acts = Section 34 COVID-19 Public Health Response Act 2020 - Protection of persons acting under authority of this Act – § 129 of the Health Act 1956 (HA) - Protection of persons acting under authority of Act - Section 129 of the HA 1956 is incorporated into the PHRA so is important when suing eventuates – § 191 (2) HSWA 2015 - Designated agencies, that taking over of the role of Worksafe is supposed to be designated by the Prime Minister, Gazetted and specified using the Acts – See subsection 3 – No designations were made for government agencies, CEOs etc. to get Worksafe’s powers – You could in fairyland lol 😊 – Section 67 Legislation Act 2019 - Subpart 1 - Drafting and publishing legislation

19:48 Liz: No new sections added to HSWA that allowed Worksafe to check on vax certificates or get vaxxed – Section 168 (4) HSWA 2015 – Powers of entry and inspection – WS and how they conducted inspection by phoning, emailing and slipping fines under doors – §172 Health and Safety at Work Act 2015 - Power to take samples and other objects and things – Tests aren’t on people, have to be given with informed consent – See 168 (1)(e) – Covid-19 never came under an relevant HSWA legislation – Covid 19 is in the HA 1956 schedules, which should be called the Public Health Act – Go to subsection 4 – If WS were going to charge, then they don’t have any evidence

25:16 Liz: Clause 11 COVID-19 Public Health Response (Vaccinations) Order 2021 – Duties of affected person regarding vaccination records – How do the MOH have the record, off the doctor? – Exemptions to PCBU and enforcement officer on request, so if unvaxxed there’s no record – But they have no right under HSWA – Clause 11A - Duties of relevant PCBUs of affected persons: vaccine records – Information gathering exercise in which they had no right to gather and pass on, without consent

31:24 Liz: Want to sue the state for records to be destroyed as unlawfully taken – People who had their practitioner licenses taken

33:06 Dora: Purpose of the Acts

34:37 Liz: Section 129 of the Health Act 1956 - Protection of persons acting under authority of Act, but must be exercised in good faith and not recklessly – Put businesses out of business and more damage – Example of workplace disease

36:33 Dora & Liz: Dora discusses the initial judgements and likening to Ebola – Liz: HA 1956 didn’t allow persons to be treated if they didn’t consent – Courts are bound

40:50 Liz & Dora: Courts are bound by BORA – Group rights are not in BORA – Judicial review is 28 days – Exemptions from the start so it wasn’t treated like Ebola – Under the Health Act you would have had to show symptoms – Other cross over, Section 74 Health Act 1956 - Health practitioners to give notice of cases of notifiable disease - How to know if a persons alleged infectious disease or sickness has to come from the workplace, not from their home environment?

46:54 Emz & Liz: Where to for Ants? Section 18.4 District Court Rules 2014 - Time for appeal if there is right of appeal – Reasons for right of appeal – Liz added as contact for Ants to appeal against Worksafe or fine prosecutors – Costs if they withdraw – Sue with section 129 – Has to be an application to the High Court – Long term plan for members and workers – To be added to PG’s - Breach of contract be accompanied by a lockout allegation – Bring in CEOs of big company, Maritime NZ etc. – Non gov worker can bring in whomever participated in the lockout for the purposes of section 86 ERA 2000 - Unlawful strikes or lockouts

51:14 Timeframes – Section 142 Employment Relations Act 2000 - Limitation period for actions other than personal grievances, for breach of contract – Open chat: Use of AI

54:40 Liz: OIA that Sue Grey got – Question was: all reference all BORA and any advice between the Justice COVID team and DPMC – Did they send any advice about the HSWA? Answer is probably no – Policy gave the thumbs down to the enabling Act – Inconsistent with the Health Act 1956

58:25 Liz: Possible OIA to ask about HSWA and ERA – Dora: Law is there to protect us from the government, discuss NZ constitutional arrangements – Fitzgerald and Muldoon, no retrospective legislation – Fitzgerald v Muldoon - breached section 1 of the Bill of Rights 1688 - No dispensing power

01:01:21 Liz: Fitzgerald three strike case of cruel and excessive punishment breached section 9 of NZBORA – Executive, parliament and courts all have to obey the law – Ants case re using a repealed act for the infringements & reason to revisit Section 18 COVID-19 PHRA 2020 - Authorised enforcement persons - Example of how the authorities are still pursuing people saying the relevant law was in place – So we can too

Content links:

Section 168 (4) health and safety at work act 2015 - powers of entry and inspection
(4) Despite subsection (1)(e), if all or any part of the information relates to a person’s health status and identifies the person, an inspector must not, without that person’s consent,—
(a) require the production of information; or
(b) examine the information; or
(c) make a copy of, or take an extract from, the information.
https://www.legislation.govt.nz/act/public/2015/0070/latest/DLM5977151.html

Section 18.4 District Court Rules 2014 - Time for appeal if there is right of appeal
https://www.legislation.govt.nz/regulation/public/2014/0179/latest/DLM6122821.html
https://www.legislation.govt.nz/regulation/public/2014/0179/11.0/DLM6129567.html

Section 11 - Admiralty Act 1973 - Rules of procedure and regulations as to fees
https://www.legislation.govt.nz/act/public/1973/0119/latest/DLM411666.html#DLM411666

Act before HWSA 2015 - A Guide to the Health and Safety in Employment Act 1992
https://cdn.auckland.ac.nz/assets/science/for/current-students/HR/health-safety-wellness/documents/hseguide-2ed.pdf

Health and Safety in Employment Act 1992 – Repealed 2016
https://www.legislation.govt.nz/act/public/1992/0096/latest/DLM278829.html

Section 231 Health and Safety at Work Act 2015 - Repeals and revocations
https://www.legislation.govt.nz/act/public/2015/0070/latest/DLM5977235.html

Clause 8 COVID-19 Public Health Response (Vaccinations) Order 2021 - Duties of relevant PCBUs in relation to vaccinations
https://www.legislation.govt.nz/regulation/public/2021/0094/latest/whole.html#LMS487895

Section 18 COVID-19 Public Health Response Act 2020 - Authorised enforcement persons
https://www.legislation.govt.nz/act/public/2020/0012/latest/LMS344191.html

Section 34 COVID-19 Public Health Response Act 2020 - Protection of persons acting under authority of this Act
(1) Section 129 of the Health Act 1956 (which relates to the protection of persons acting under authority of that Act) applies as if that Act included a reference to this Act.
(2) However, this section does not limit any other protections from liability that apply under any other enactment.
https://www.legislation.govt.nz/act/public/2020/0012/latest/LMS344210.html

§ 129 of the Health Act 1956 - Protection of persons acting under authority of Act
https://www.legislation.govt.nz/act/public/1956/0065/121.0/DLM308498.html

§ 191 (2) Health and Safety at Work Act 2015 - Designated agencies
https://www.legislation.govt.nz/act/public/2015/0070/latest/DLM5977182.html#DLM5977182

Section 67 Legislation Act 2019 - Subpart 1 - Drafting and publishing legislation
https://www.legislation.govt.nz/act/public/2019/0058/latest/DLM7298343.html#DLM7298343

§172 Health and Safety at Work Act 2015 - Power to take samples and other objects and things
https://www.legislation.govt.nz/act/public/2015/0070/latest/DLM5977157.html

Clause 11 COVID-19 Public Health Response (Vaccinations) Order 2021 – Duties of affected person regarding vaccination records
https://www.legislation.govt.nz/regulation/public/2021/0094/latest/whole.html#LMS522632

Schedule 1 Health Act 1956 – Notifiable infectious diseases
https://www.legislation.govt.nz/act/public/1956/0065/latest/whole.html#DLM308729

Health Act 1956 Schedule 1 Part 3 - Quarantinable infectious diseases - COVID-19:
amended, on 11 March 2020, by clause 3(2) of the Infectious and Notifiable Diseases Order (No 2) 2020 (LI 2020/31).
https://www.legislation.govt.nz/act/public/1956/0065/latest/DLM308729.html

Section 11 COVID-19 Public Health Response (Vaccinations) Order 2021 – Duties of affected person regarding vaccination records
https://www.legislation.govt.nz/regulation/public/2021/0094/latest/whole.html#LMS522632

Section 11A COVID-19 Public Health Response (Vaccinations) Order 2021 - Duties of relevant PCBUs of affected persons: vaccine records
https://www.legislation.govt.nz/regulation/public/2021/0094/latest/whole.html#LMS580570

Section 129 of the Health Act 1956 - Protection of persons acting under authority of Act
https://www.legislation.govt.nz/act/public/1956/0065/latest/DLM308498.html

Section 74 Health Act 1956 - Health practitioners to give notice of cases of notifiable disease
https://www.legislation.govt.nz/act/public/1956/0065/latest/DLM307220.html

Section 86 Employment Relations Act 2000 - Unlawful strikes or lockouts
https://www.legislation.govt.nz/act/public/2000/0024/latest/whole.html#DLM59977

Section 142 Employment Relations Act 2000 - Limitation period for actions other than personal grievances
No action may be commenced in the Authority or the court in relation to an employment relationship problem that is not a personal grievance more than 6 years after the date on which the cause of action arose.
https://www.legislation.govt.nz/act/public/2000/0024/latest/DLM60902.html

Health Act 1956 – search within Act for ‘public health’
https://www.legislation.govt.nz/act/public/1956/0065/latest/resultsin.aspx?search=sw_096be8ed81c588c6_public+health_25_se&p=1

Fitzgerald v Muldoon
https://en.wikipedia.org/wiki/Fitzgerald_v_Muldoon

Bill of Rights Act 1688 - See Section 1 No dispensing power
https://www.legislation.govt.nz/act/imperial/1688/0002/latest/whole.html#DLM11115

FITZGERALD V R [2021]
https://www.courtsofnz.govt.nz/assets/cases/2021/2021-NZSC-131.pdf
https://www.franksogilvie.co.nz/news/case-brief-fitzgerald-v-r-2021-nzsc-131
Summary: The majority of the Supreme Court found the three strikes regime is subject to section 9 of the New Zealand BORA. This means the High Court should not have imposed the maximum sentence for Mr. Fitzgerald’s third strike offence where it was grossly disproportionate to the seriousness of the offence.

Section 9 New Zealand Bill of Rights Act - Right not to be subjected to torture or cruel treatment
https://www.legislation.govt.nz/act/public/1990/0109/latest/whole.html#DLM225507

From the chat:

Infection fatality rate of COVID-19 inferred from seroprevalence data
https://apps.who.int/iris/bitstream/handle/10665/340124/pmc7947934.pdf?sequence=1

ADDITIONAL:

Judicial Review
https://www.studocu.com/en-nz/document/university-of-otago/public-law/judicial-review-condensed/6957718?origin=viewer-recommendation-3

Search for word vehicle registration in Health and Safety in Employment Act 1992
https://www.legislation.govt.nz/act/public/1992/0096/latest/resultsin.aspx?search=sw_096be8ed816654fa_vehicle_25_se&p=1

Health Act 1956 – search within Act for ‘public health’
https://www.legislation.govt.nz/act/public/1956/0065/latest/resultsin.aspx?search=sw_096be8ed81c588c6_public+health_25_se&p=1