definition of Risk in Public Health Safety Decisions.

133 Molesworth Street
PO Box 5013
Wellington 6140
New Zealand
T+64 4 496 2000
16 March 2026
Tracy
By email: [email protected]
Ref: H2026078925
Tēnā koe Tracy
Response to your request for official information
Thank you for your request under the Official Information Act 1982 (the Act) to the Ministry of
Health – Manatū Hauora (the Ministry) on 18 February 2026 for information regarding the
definition of Risk in Public Health Safety Decisions. Please find a response to each part of your
request below.
This request supplements previous Official Information Act correspondence concerning
how “safety” is defined and operationalised in government decision-making.
This request seeks clarification of the evidential and legal threshold relied upon when
imposing or justifying public health measures described as necessary for “safety” or
“protection”.
Please provide:
Evidential Threshold
1. All documents, advice, briefings, or guidance describing the evidential threshold
required before Ministers or officials may determine that a public health risk justifies
regulatory or compulsory measures.
2. Any written criteria defining what constitutes “sufficient evidence” of risk in emergency
or pandemic contexts.
There is no single threshold for regulation as this is context and fact specific. As such, no
information is held addressing “the evidential threshold required before Ministers or officials may
determine that a public health risk justifies regulatory or compulsory measured” referred to
above. Therefore, this part of your request is refused under section 18(g)(i) of the Act.
3. Any internal guidance distinguishing between:
•Confirmed harm
•Projected risk
•Precautionary risk
•Acceptable or tolerable risk
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While public health advice considers these concepts, their application is always
context‑dependent and tailored to the specific circumstances and decisions involved. No
internal guidance distinguishing between these concepts at a generic concept level exists.
Therefore, this part of your request is refused under section 18(g)(i) of the Act.
Legal Standard Applied
4.Any advice provided to Ministers outlining the legal standard required under:
•The Health Act 1956
The Health Act 1956 contains a range of different powers with different statutory texts. There is
no single legal standard under the Health Act 1956 and therefore, this part of your request is
refused under section 18(g)(i) of the Act.
•The COVID-19 Public Health Response Act 2020
Section 8 and section 9 of the COVID-19 Public Health Response Act 2020 sets out the legal
standard required to make an order under that Act. All papers regarding the making of orders
addressed this legal standard. The legal standard is publicly available on the legislation website
at: www.legislation.govt.nz/act/public/2020/0012/latest/LMS344134.html. Papers proactively
released on the Ministry’s website provide information about how the prerequisites were
satisfied for specific orders: www.health.govt.nz/strategies-initiatives/programmes-and-
initiatives/covid-19/legislation-and-orders. Section 18(d) of the Act applies to this part of your
request.
•The New Zealand Bill of Rights Act 1990 when restricting rights in the name of public
safety.
The Ministry can confirm that no advice was provided on the issue of New Zealand Bill of Rights
Act in the name of public safety generally. As such, this part of your request is refused under
section 18(g)(i) of the Act. Papers provided to Ministers/Cabinet regarding proposed COVID-19
orders each contained a specific section on New Zealand Bill of Rights analysis addressing the
particular measure.
5.Any documents explaining how proportionality assessments were conducted.
There are no documents explaining how proportionality assessments were conducted generally
as each assessment was tailored to the specific facts and the particular measure being
considered. This request is therefore refused under section 18(g)(i) of the Act.
If a right is engaged under the New Zealand Bill of Rights Act, the analysis would then consider
the proportionality test as set out in Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1. This test is
used to determine whether a limit is reasonably and demonstrably justified and considers the
following:
i. does the limiting measure serve a purpose sufficiently important to justify
curtailment of the right or freedom?
i. is the limiting measure rationally connected with its purpose?
ii. does the limiting measure impair the right or freedom no more than is
reasonably necessary for sufficient achievement of its purpose?
iii. is the limit in due proportion to the importance of the objective?
Definition of “Safety”
6. Any whole-of-government definition of “safe” or “safety” used in public communications
during COVID-19.
7. Any guidance addressing whether “safe” means:
•Absence of harm,
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•Acceptable risk,
•Risk outweighed by benefit,
•Or another standard.
The Ministry is not aware of any documents containing a whole-of-government definition of safe
or safety. What these concepts mean depends on context and content of the communication.
As such, this part of your request is refused under section 18(g)(i) of the Act.
Risk Allocation
8. Any documents identifying who bears residual risk if a measure described as “safe”
later results in harm.
9. Any discussion of Crown liability, indemnity, or compensation exposure arising from
safety-based decisions.
If any information does not exist, please confirm that explicitly.
Electronic copies (PDF) are preferred.
The Ministry can confirm that no information is held regarding risk and safety-based decisions
generically. Any advice provided would relate to specific questions or issues and would be
subject to legal professional privilege. These parts of your request are refused under section
18(g)(i) of the Act.
If you wish to discuss any aspect of your request with us, including this decision, please feel
free to contact the OIA Services Team on: [email protected].
Under section 28(3) of the Act, you have the right to ask the Ombudsman to review any
decisions made under this request. The Ombudsman may be contacted by email at:
[email protected] or by calling 0800 802 602.
Please note that this response, with your personal details removed, may be published on the
Ministry website at: www.health.govt.nz/about-ministry/information-releases/responses-official-
information-act-requests.
Nāku noa, nā
Phil Knipe
Chief Legal Advisor
Corporate Services | Te Pou Tiaki