Court of Appeal rejects habeas corpus lockdown arguments but “questions needed answers”

The Court of Appeal has ruled out an appeal by two mean claiming they were detained under lockdown, saying the men had gone about it the wrong way, but suggested “extraordinarily complex questions needed answers” and could be dealt via urgent hearings .

On 17 April the High Court rejected two writs for habeas corpus, finding that two associated persons were not detained illegally under the Covid-19 Level 4 lockdown. See:

On Friday the Court of Appeal also found that the two men, now in Level 3 lockdown, did not amount to detention.

My guess is that the two applicants are not up to dealing with extraordinarily complex legal questions. It didn’t help that they included lame political arguments, like the lockdown was put in place to help Jacinda Ardern’s re-election.

Stuff:  Lockdown legal appeal gains traction

That headline is odd – it isn’t yet clear how the appeal may get traction.

Two people who sued Jacinda Ardern, claiming the coronavirus lockdown was an illegal detention, have lost their case but gained support for their concerns about the legal basis for the lockdown.

The Court of Appeal on Friday decided the men’s circumstances now, in lockdown level 3, did not amount to detention.

But the three judges said the case had raised issues that that could be examined in separate proceedings, perhaps in an urgent hearing.

The two laymen arguing the case had gone about it the wrong way, the court said.

The pair used an ancient legal process called habeas corpus to challenge what was alleged was an unlawful detention.

What the two men were really trying to do was challenge the reasons for making the lockdown order, and habeas corpus wasn’t the right process to do that, the judge said.

Success would have meant the entire population would have been released from the restrictions.

A finding of no legal restrictions could have a very risky impact on dealing with Covid-19, and I would expect the Government to try to urgently find a legal way to continue some restrictions.

President of the Court of Appeal, Justice Stephen Kos, said extraordinarily complex questions needed answers. He referred to an article academics Andrew Geddis and Claudia Geiringer wrote on The Spinoff and a report of Parliament’s regulations review committee looking at government powers in emergencies, which he said was “hardly approving”.

The two laymen arguing the case had gone about it the wrong way, the court said. Its full reasons are expected next week.

…the three judges said the case had raised issues that that could be examined in separate proceedings, perhaps in an urgent hearing.

Perhaps the court’s full reasons will explain how the questions can be dealt with from here.


Some more detail from NZ Herald: Duo’s appeal dismissed in lawsuit against Jacinda Ardern over lockdown ‘detention’

Court of Appeal president Justice Stephen Kós quizzed both men on whether they were able to exercise outside and visit a supermarket, which they had, before making an oral ruling on behalf of himself, Justice Christine French and Justice David Collins.

He said the panel of judges were satisfied “that in the circumstances they are not detained for the purposes of the Habeas Corpus Act 2001”.

“This is the case which the lawfulness of the Crown’s actions call to be determined not in a habeas corpus matter but more appropriately in the context of a judicial review proceeding in the High Court,” Justice Kós said.

The conclusions of the Court of Appeal, the judge added, were also without prejudice in the determination of the lawfulness of the Crown’s actions in any potential judicial review.

During their case, A and B have made claims that modelling predicting up to 80,000 Kiwi deaths and the growing economic cost, when compared with the relatively low number of Covid-19 related deaths, was part of wider political conspiracy.

“The Prime Minister made the wrong decision … all for her political gain,” one of the men said in the High Court.

It was also alleged Ardern had conspired with Sir Stephen Tindall to ruin the economy and the United Nations Secretary-General should have been consulted.

The High Court judge who originally rejected their writ also said that a judicial review was the correct legal process to challenge the lockdown restrictions.

Justice Kós also dismissed the two men’s bids for continued name suppression, saying the public has a right to know who sued the Prime Minister.

He extended the current suppression order until next Friday to allow the men, known only as A and B, to seek leave to appeal the decision to the Supreme Court.

It could become farcical if people could anonymously sue the Prime Minister.

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56 Comments

  1. Alan Wilkinson

     /  2nd May 2020

    No doubt Duker has all the answers necessary in his mind.

    There is a case being lodged in the UK too which seems better resourced though at first sight looked a bit flakey to me.

    I guess most people are just hoping the nightmare will be over quickly and winning a court case won’t help much for this disaster. There really does need to be a public interest organisation to take it on though. A pity the old Civil Liberties outfit is too moribund to do it.

    Reply
    • The leader of it is a very clever man (I knew him years ago, long story) but he’s quite ancient now.

      The 80,000 deaths claim was crassly irresponsible. The chances were so slight as to be not worth considering; with the survival rate, more than the entire NZ population would have had to have the virus.

      Reply
      • Duker

         /  2nd May 2020

        Who claimed 80,000 dead ?
        A quote please

        Reply
        • Gezza

           /  3rd May 2020

          Baker has contributed to research that shows about 30,000 people would die if the virus rips through communities, infecting about 60 per cent of the population.

          That is less dire than the 80,000 deaths if Covid-19 was left unchecked, as predicted in modelling from researchers at the University of Auckland.

          Herald
          28 March 2020

          Reply
      • Blazer

         /  3rd May 2020

        on that basis,you must be quite ancient too.
        You stated that the P.M had made the 80,000 deaths claim and you sawed it on the news.
        You were making shit up…again.

        Reply
    • Fight4nz

       /  2nd May 2020

      Or it’s just the usual silly sideshow wasting time and money indulging the not insignificant immature spoiled child like section in NZ society. Something we do share with the UK.

      Reply
      • Alan Wilkinson

         /  2nd May 2020

        Bizarre. What kind of NZ are you fighting for? One with no civil liberties or legal redress?

        Reply
        • Duker

           /  2nd May 2020

          I can see the similarities with you and those esteemed upholder of our freedoms – Mr A and Mr B.
          paper bag heroes

          Reply
          • Alan Wilkinson

             /  2nd May 2020

            I can see a similarity between you and them too, Duker.

            Reply
        • Fight4nz

           /  2nd May 2020

          Help, help I’m being oppressed.

          Reply
          • Gezza

             /  2nd May 2020

            Where are you? I might be able to send a flight of pukekos to fly over & crap on your oppressors. They can produce a prodigious bloody bomb load, these birds. One has to be careful to wipe one’s shoes before coming inside.

            Reply
  2. Duker

     /  2nd May 2020

    Have you ever been in a court and heard the legal nonsense some lawyers claim. There is a big difference between tiny legal niceties and something ‘not being legal’
    Geddes is just doing what happens at formal debates where university nerds argue two sides of a question, often one side is absurd.
    In none of these things is much made of the actual government position, the huge amount of existing law which passed eons ago to cover epidemics ( nothing new in NZ)

    As far as I can see a central point seems to be DG of health , as Chief Medical Officer of health has declared all districts to be in quarantine. There is the suggestion that it was only for small areas not a nationwide declaration.
    I dont see their point as the epidemic was present in all areas and its not like we can stop the Overnight Limited train out of Auckland and all will be well.

    Reply
  3. Duker

     /  2nd May 2020

    Remember this from the Chrstchurch earthquake red zone legalities
    https://www.interest.co.nz/bonds/66066/high-court-rules-governments-red-zone-land-buyout-offers-not-lawful-brownlee-will-appeal
    The National government lost that one all the way and eventually it was labour policy to pay, but National government was happy to ‘take property without full payment’- where was ACT during this battle for peoples property rights …poodles

    Reply
  4. Duker

     /  2nd May 2020

    I see the iwi roadblocks issue has come up again. Its use full to look at State of Emergency legislation and see what it says is legal (h/tMcFlock)

    91 Power to give directions
    (1)While a state of emergency is in force, a Controller or a constable, or any person acting under the authority of a Controller or constable, may—
    (a)direct any person to stop any activity that may cause or substantially contribute to an emergency:
    (b)request any person, either verbally or in writing, to take any action to prevent or limit the extent of the emergency.

    Reply
    • Alan Wilkinson

       /  2nd May 2020

      So have the police at any time authorised “any person” to act under their authority to set up road blocks?

      Reply
      • Duker

         /  2nd May 2020

        The commissioner says yes…that the roadblocks are supervised , sometime loosely. Although the Act only says ‘under the authority of ‘ rather ‘under the control’ of a constable
        I get the Far North Iwis concern about their situation , but with Hone in the background and not observing lockdown when it suits and going to west Auckland , Im thinking they are enjoying their little bit of territorial power.
        As Peeni Henare said the other day about the 1918 flu lockdowns , Maori in his grandmothers whanau didnt observe tangi restrictions and that bought the flu into their community and his grandmother died.
        Once Hone left he shouldnt have been allowed back North

        Reply
        • Alan Wilkinson

           /  2nd May 2020

          Seems unclear. The Commissioner thoroughly deserved to be skewered on this nonsense. Though probably acting as the fall guy for the Government pandering to its Maori seats.

          Reply
            • Duker

               /  2nd May 2020

              Elers has degrees in PR and Communications..no legal brain cells whatever.
              “Former police officer, nightclub bouncer, and martial arts instructor.”

              He seems to assume throughout his column that the PM and Minister ( shades of the two clowns A and B who went to Court) are letting or allowing ‘stuff’
              “Perhaps they thought if they let one or two iwi groups..
              and
              By allowing these shenanigans to continue, our prime minister, minister of police ..
              They are no more aware of their existence than you or I can from reading the papers and as everyone else knows the the Police Commissioner doesnt take orders from the PM or Minister on operational matters..

              Elers fails completely, but shows that PR is just about showing ignorance
              “that raises another question – why are police involved in the first place?
              “If police think checkpoints should be operated “to prevent the spread of Covid-19″, then go ahead and do it – with police officers – no-one else. To do otherwise shows police are pandering to certain groups.”

              The Civil Defence Emergency Act specifically allows ‘other persons’.
              The ‘No one else’ is a figment of his imagination. To do so is allowed under the act and is not pandering.

              On the Coromandel similar local groups of residents acted to prevent visitors coming around easter…

            • How can Peeni Henare’s grandmother have died 102 years ago ? He’s only 40. His grandfather fought in WWII.

          • Duker

             /  2nd May 2020

            Why dont you just say …beats me . Rather than ‘seems unclear’… you can understand the plain english Im sure.

            You come up with phrases like ‘police at any time authorised “any person” to act under their authority
            Yet the wording doesnt say anything in this section about ‘authorised’ . a procedural process ..just under the authority

            Reply
            • Alan Wilkinson

               /  2nd May 2020

              If you have authority then you authorise actions under it. So far the police have claimed merely to be keeping the peace at the roadblocks rather than authorising them.

            • Duker

               /  2nd May 2020

              You are no lawyer to make that point…in the context ‘authorised’ normally means someone whos got a bit of paper.
              It clearly says ‘under authority’ …no paper work

              Part of the definitions says
              “constable—
              (a)has the same meaning as in section 4 of the Policing Act 2008; and
              (b)in Part 5B, includes any person acting under the authority of a constable

            • Alan Wilkinson

               /  2nd May 2020

              Give over, Duker. If the constable says go set up a road block you are acting under his authority. If you set it up and he pops along to check no agro is happening you are not.

            • Duker

               /  2nd May 2020

              Andrew Coster told MPs that there was “nothing unlawful” about police-supervised roadblocks
              “Earlier, Coster explained to committee chair Simon Bridges that the number of checkpoints had fallen dramatically from “roughly 30 to 50” during alert level 4 to “10 or fewer” since alert level 3 came into effect. He expected them to stop operating entirely before New Zealand moved to alert level 2.
              “Coster said if the roadblock operators were abiding by the regulations and had police presence, then there is “nothing unlawful” about it.

              All is required is Police presence , nothing about police setting them up at all.
              You are like one of Gezzas eels , slippery as, thinking any old nonsense , not based on anything in the laws, will pass.
              https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12328718

            • Alan Wilkinson

               /  2nd May 2020

              The one I passed in Paihia had no police presence so presumably was unlawful then. No sign of the police doing anything about that. Basically just making up law as they go along, like you.

            • Duker

               /  2nd May 2020

              What isolated iwi are they protecting in Paihia ?

        • Gezza

           /  2nd May 2020

          Elers has degrees in PR and Communications..no legal brain cells whatever.

          Can you just remind me, you have degrees in … ?

          And your legal brain cells that allow you to dismiss Elers & others opinions or questions come from … ?

          Reply
          • Alan Wilkinson

             /  2nd May 2020

            As a former police officer Elers would certainly have had to learn some law. Probably unlike Duker.

            Reply
            • Gezza

               /  2nd May 2020

              Duker perhaps receive his (apparently self-perceived) superior legal knowledge by divine revelation. He is extraordinarily circumspect about his background & any relevant details. Wonder why he’s here & not rapturously welcomed on other blogs? Or perhaps he is? One can only wonder.

            • Alan Wilkinson

               /  2nd May 2020

              I expect he would need to arrange any rapturous welcome himself but is probably well qualified to do so. Yes, his enthusiasm for getting personal with others is only matched by his reluctance to climb out of his dustbin.

            • Gezza

               /  2nd May 2020

              Yes, plods wouldm one expects, have to have a fairly thorough grounding in those aspects of law from from which their authority to act is derived, any limitations (last thing the top brass like is plods convicted in the doc for abuse of their position), & on the rights of citizens & their own right to co-opt them.

              Bush’s somewhat embarrassing session with the Epidemic Reponse Committee revealed that – at least as Bush was explaining it – plods have fairly broad discretion over whether & when to act, or not, & the police hierarchy is showing every sign of political signalling to their front line officers to try not to stir up local Maori around the country who, in some cases, are trying out flexing their muscles to see what plod does.

            • Duker

               /  2nd May 2020

              Isnt it feeding time for your birds feathered companions.
              a little night music even
              https://www.rnz.co.nz/concert/programmes/resound/audio/201786967/john-rimmer-pukeko

            • Gezza

               /  2nd May 2020

              When you do that sly ad hom stuff I know your ginormous & rapacious ego has taken a big hit again.

            • Gezza

               /  2nd May 2020

              And (chuckle with me here) as a matter of fact it IS their feed time & I’ve just fed 🐧🐧🐧🐧🐧🐧 of them.

          • Duker

             /  2nd May 2020

            Im not a columnist in the Dom Post…but of course I didnt hold his experience as a night club bouncer against him . I covered in detail where is his claims are simply false
            some claims are just stupid – “why are police involved in the first place’- do we have to even bother with that level of stupid

            Have a check on his PhD topic and make of that what you may and why an educated man can say such nonsense
            https://openrepository.aut.ac.nz/handle/10292/10163

            Reply
      • Gezza

         /  2nd May 2020

        Elers fails completely, but shows that PR is just about showing ignorance

        That’s what the PM does every day then, I guess. With her Comms degree & PR background. So you probably agree with her critics that she’s all mouth & doesn’t really know her arse from her elbow, I imagine.

        Actually, it would probably be more accurate to say that PR is about NOT showing ignorance. Especially where it exists. Diversion though. Let’s not go squirrelling off down this path.

        Reply
        • Duker

           /  2nd May 2020

          Again you show little understanding.. A PhD in ‘Communications’ provides no background to do a critical analysis of epidemic legal processes.

          The PM is a government leader , and in NZ they more recently have come from a range of backgrounds such as Politics lecturer, Currency Trader or Treasury Analyst.
          The polls tell us what the voters think – a general- and hows shes doing

          Reply
          • Gezza

             /  2nd May 2020

            Again you show little breadth of thinking. Many, perhaps most, people are not as one dimensional as you. They are capable of researching & consulting to inform themselves on matters other than their qualifications. Sir Alan trained as a chemist. He made his fortune in computing. Do try & keep up.

            Where do you get your legal opinions from?

            Reply
            • Duker

               /  2nd May 2020

              Yet for some reason ‘Sir’ Alan can barely understand simple english in legislation. The software he was connected to Winnow Software hardly set the world alight in saving waste in commercial kitchens
              https://www.computerweekly.com/news/252465110/How-computer-vision-powered-by-Nvidia-helped-Winnow-tackle-food-waste

            • Gezza

               /  2nd May 2020

              What have you done or been involved with that’s set the world alight?

              And where do you get your legal opinions from. Why so reluctant to answer that one?

            • Alan Wilkinson

               /  2nd May 2020

              What the hell are you on, Duker? It must be strong to be so hopelessly wrong about every single thing.

            • Duker

               /  2nd May 2020

              Another of your previous directorships Wilco, or are you denying like that little Op shop in Paihia, that it was connected to you

            • Alan Wilkinson

               /  2nd May 2020

              It’s amazing! How do you do it? Surely you will inadvertently get something right one day?

              Just maybe if you told us about yourself rather than everyone else it could happen?

      • Corky

         /  2nd May 2020

        Where are the Maori Wardens? Apparently they have legislative powers as warranted officers during certain situations. They are generally well respected on the street by both Maori and European.

        Reply
        • Alan Wilkinson

           /  2nd May 2020

          I doubt they’d want to pick a fight with the Harawiras.

          Reply
          • Duker

             /  2nd May 2020

            Which iwi is stopping residents in Paihia ?

            Reply
            • Alan Wilkinson

               /  2nd May 2020

              Prob the usual crowd that make the lower marae at Waitangi a circus.

  5. Some of the Level rules are nitpickingly petty. Married couples can’t look at a house together. Over 70s selling a house can’t have people looking at it.

    I can see no point in these petty, tyrannical restrictions.

    We can go regionally…but when people drive 20km to the nearest beach, they are turned back. It’s pathetic.

    Reply
    • Alan Wilkinson

       /  3rd May 2020

      There’s nothing worse than a fool with a rule.

      Reply
      • Blazer

         /  3rd May 2020

        Are you capable of protecting yourself…with no rules?

        Reply
        • Alan Wilkinson

           /  3rd May 2020

          From the virus, absolutely.

          Reply
          • Blazer

             /  3rd May 2020

            so do tell Al….without endangering other people…a minor consideration..I realise.

            Reply
            • Alan Wilkinson

               /  3rd May 2020

              No problem. I spend zero time indoors with people other than my family and one close friend. It’s easy to converse safely outdoors. Almost everything we need can be bought online and that’s what we do. Wash hands if you’ve been anywhere with them that could be contaminated.

  1. A better looking challenge of Covid lockdown legality | Your NZ
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