Making contact-tracing QR codes a legal requirement and punishable of up to six months in prison or a $4000 fine was considered by Cabinet before the move to alert level 1.

And the option is still on the table.

Included in her advice to ministers about considerations before dropping to the most relaxed alert level, Prime Minister Jacinda Ardern looked at how to encourage Kiwis to keep tracking their movements.

Widespread display of government-issued Covid Tracer QR codes would help individuals to keep a record of where they have been and Ardern gave her Cabinet two options: continue to have it voluntary or make it a legal requirement.

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Since moving into alert level 1, daily use of the Government's Covid Tracer has fallen off a cliff with an average of 10,000 poster scans a day.

The generous assumption that each scan represents one New Zealander means just 0.2 per cent of the population is regularly using the app.

The low-use has led to Health Minister Chris Hipkins urging Kiwis not to be complacent and download and use the app.

If there was another outbreak the current number of poster scans meant not enough New Zealanders would be able to remember their movements, he warned recently.

The latest release of Cabinet papers shows Cabinet did consider an option to make it a legal requirement.

Officials advised they did not think it was appropriate to require entities or individuals to keep records directly at Level 1.

"This requirement could not be justified by the level of public health risk.

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"But if more businesses and other organisations were to display government-issued QR codes, this could assist people without imposing a direct requirement to keep a record.

"There is a choice to be made about whether the best way to encourage businesses and organisations to download and display a QR code is a voluntary approach, or one that involves a legal requirement and enforcement."

Director general of health Ashley Bloomfield holding up a Covid Tracer poster QR code.
Director general of health Ashley Bloomfield holding up a Covid Tracer poster QR code.

Ardern recommended to continue taking a voluntary approach "but with the knowledge that the option to make it a legal requirement is available if required".

If the Government were to make it a legal requirement, it would mean:

• A government-issued QR code would be required to be displayed prominently at the entries and exits of businesses, social and recreational venues.

• There would be exemptions for entities where it was not reasonably practical for them to obtain, display or enable the use of a government-issued QR code.

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• Establishing a new s11 Order under the COVID-19 Public Health Response Act 2020, and non-compliance would be subject to penalties of:

i. Imprisonment of up to 6 months or a fine not exceeding $4,000 in the case of intentional non-compliance;
or ii. An infringement fee of $300 or a court-imposed fine of up to $1,000 in any other case.

Ardern said it would take time to put a system in place and it shouldn't come into effect before June 23 at the earliest to give time for compliance.

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A mandatory requirement also came with challenges for enforcement because it would be difficult to know if an organisation not displaying a code is non-compliant or exempt.

"And a mandatory requirement would need to cover retail outlets which might seem discordant that they would face enforceable requirements to support contact tracing at alert level 1 when they did not at level 2."

Ardern said a voluntary approach could be accompanied by guidance and proactive promotion and public messaging with key sectors, and would generate a more positive tone to the campaign than a legal requirement backed by sanctions.

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Cabinet asked the Health Minister to report back on June 29 about the progress of the voluntary approach and that they would "continue to monitor the situation closely".