The NZ Council for Civil Liberties is deeply concerned about the government’s plans to introduce Covid-19 vaccination certificates and mandate their use for access to certain events and venues. This is a major imposition on civil liberties and takes our country in a new direction; as such it should be done carefully and with adequate protections for civil liberties.

While we understand the government’s need to move at speed, we still expect that any such moves should be taken after as much consultation with the public, civil society groups, and Māori groups as possible. This is not happening and the government has been refusing requests for information about their plans.

We have written to the Prime Minister Jacinda Ardern and the Minister for Covid-19 Response Chris Hipkins to express our concerns and request this information. The text of that letter follows:

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Dear Prime Minister and Minister Hipkins,

Covid-19 Vaccination Certificates

I am writing to express the New Zealand Council for Civil Liberties’ deep concern about the way in which the government is proceeding to introduce vaccination certificates, and to seek information from you about the proposals that must be shared with the public.

In the press conference held on 5 October 2021, you (the Prime Minister) announced that the Cabinet had decided to introduce vaccination certificates. You said that the government is ‘consulting on this framework now’ and that this included their use in hospitality venues. Later in the press conference, you responded to a question about the use of certificates to access church services, and suggested the consultation was also including ‘what kind of measures do those organisations want to have in place’. You said that ‘they’re very open conversations’.

Unfortunately, we have been unable to find any consultation documents relating to the framework for vaccination certificates on the websites of the DPMC, Ministry of Health, Covid-19.govt.nz or the central consultation listing website.

The government is clearly aware of the civil liberties implications of vaccination certificates being introduced, since you indicated they would not be required for people visiting supermarkets, health centres or pharmacies. The officials from the Ministry of Health who presented details of the certificate at the press conference referred to working ‘very closely with the Privacy Commissioner’.

The Privacy Commissioner has refused an OIA request for information on the advice he has provided to the government on this issue. The Ministry of Health and DPMC have taken more than 5 months to respond to people’s requests for information about policy development on this issue. The responses were sparse and withheld most relevant information. In no shape or form could they be seen to adhere to the OIA’s stated purpose of enabling people to participate in the making and administration of laws and policies.

New Zealand has been a member of the Open Government Partnership (OGP) since 2013, and the Covid-19 Response Minister is also the Minister responsible for this work. The OGP has urged governments to be open in developing measures to respond to the pandemic, and not use the emergency as an excuse to abandon democratic norms.

The Council for Civil Liberties is deeply concerned that the government is not consulting the public, civil society, and Māori on either the outline or details of the proposal to introduce a government mandated identity document. A document that will be used to control access and association with others may also be used to restrict movement. How does the approach taken fit with a commitment to Te Tiriti o Waitangi and the need to work with Māori, who already face challenges in trusting the Government in what may seem to be a campaign of surveillance and discrimination based on vaccination status? 

The potential privacy impacts are severe. You have said the certificate will provide those scanning the certificate with the identity of the person whose certificate is being verified. However, we don’t know if this will be retained by the app or business. No information was provided at the press conference about what information will be passed back to the government when a venue scans a person’s certificate. We don’t know if the government will be recording the person’s identity, or the place, date and time where the certificate was scanned. To do so would be to create a database of people’s movements. The temptation for the police or other agencies to use such information will be extremely high.

The Government may suggest that the public and NZCCL will have an opportunity to make a submission to a select committee when legislation is introduced to Parliament. This is unacceptable as it comes after Cabinet has decided on the details of the scheme and time is very short. In our experience of making submissions on legislation, this is too late – particularly with a scheme that the government is introducing so soon – to enable anyone to have influence on the shape of the scheme.

It is unacceptable in a democracy that a government should seek to introduce such a draconian measure as requiring people to carry and provide proof of vaccination to access certain premises without consulting the public. This system could easily be turned into a national identity card so it has significant consequences for our society. We urge you to promptly publish all information that has been provided to the sectors or organisations the government is consulting with on the vaccine certificate, as well as all advice from the Privacy Commissioner and from the Ministry of Justice or Crown Law on the NZ Bill of Rights Act and Human Rights Act implications of the proposals.

We also request this information urgently under the Official Information Act. The reasons for seeking an urgent decision on the request are set out above. There is clearly a very strong public interest in the immediate release of this information. We look forward to your prompt and open response.

New Zealand’s response to Covid-19 until now has been built on government trust in the public, and high levels of public trust in government. The introduction of vaccination certificates is clearly a shift from government trusting the public, while asking the public to place even more trust in government. 

When the government is asking the team of 5 million to trust it in this way, it really does require the government to demonstrate the same degree of trust by being open with the public and sharing detailed information about proposals that will affect their freedoms. When there is a refusal to do so, it becomes increasingly difficult to respond favourably in what is becoming a one-sided relationship. 

You should publish the information now, while public input could lead not only to a better system, but also a system that is trusted by the public. Our country’s reputation for openness is sometimes overstated: this is an instance where the government definitely needs to earn that reputation. 

Yours sincerely,

Thomas Beagle

Chairperson

NZ Council for Civil Liberties