A better looking challenge of Covid lockdown legality

Andrew Borrowdale has filed for a judicial review of the Director-General of Health’s powers behind the Covid-19 lockdown restrictions on Tuesday.

He is reported as someone “who has worked on drafting laws for the Government at the Parliamentary Counsel Office” but is also the author of books on commercial law and The Spinoff refers to him as “top lawyer and former parliamentary counsel”.

If successful it may make little difference for most of us, especially if we move to a Level 2 lockdown next week, but it should ensure decent scrutiny of the laws used to lock us down. And there is a possibility damages from those arrested under the lockdown law and businesses forced to close down could become an issue.,

Two associates challenged what they claimed was detention under the lockdown in the High Court but the judge dismissed that, saying the men weren’t held in detention and agreeing with counsel for the respondents (Jacinda Ardern, Ashley Bloomfield and Sarah Stuart-Black) that a habeas corpus writ was the wrong approach:

I accept the respondents have established any detention effected by the order is lawful (for reasons given). I am also satisfied the arguments A relies on are not suitable for determination on an application for a writ of habeas corpus. In fact, s 14(1A) of the Act permits the Court to refuse an application for the issue of the writ if satisfied the application is not the appropriate procedure for considering an applicant’s allegations. This is such a case.

The appropriate procedure is an application for judicial review.

See A v Ardern [2020] NZHC 796 (23 April 2020)and B v Ardern [2020] NZHC 814 (24 April 2020).

Despite this guidance A and B appealed, but the Court of Appeal confirmed that ruling – Court of Appeal rejects habeas corpus lockdown arguments but “questions needed answers”:

Even if A and B are detained we would, if it were necessary to do so, decline to issue a writ of habeas corpus without requiring the Crown to justify the legality of their detention because habeas corpus is not the appropriate procedure for considering their allegations.

An expedited application for judicial review seeking declarations in the High Court is the only appropriate procedure in the circumstances of this case.

The judgment also noted:

As has been noted by the Regulations Review Committee  regarding notices issued under s 70 of the Health Act 1956 (20 April 2020) – and two of New Zealand’s leading public law academics, there are unresolved questions about the lawfulness of the notices issued under s 70 of the Health Act.

References:

There has been one successful challenge via judicial review, but this was on very narrow grounds challenging the Ministry of health refusing an exemption from quarantine – see Court rules man under Covid quarantine can visit dying fatherJudgment here.

The new action: Legal challenge over coronavirus lockdown

Borrowdale told Stuff that the “bringing the application is not in any way intended to impugn Dr Bloomfield personally or to decry his admirable work”.

He’s asked for a court to declare that some of the powers triggering the lockdown were outside the law, and for the court to order those actions be quashed.

The main issue at stake is whether Bloomfield used powers that were in excess of the ones given to him by the Health Act.

Bloomfield used section 70 of the Health Act to issue notices, which set out some of the rules that we know as the level 4 lockdown.

Borrowdale alleges that the notices overstep the powers that are given to Bloomfield by the Health Act.

A Ministry of Health spokesperson said “The Ministry is satisfied that the section 70 powers have been exercised lawfully.

“It would be inappropriate for the Ministry to comment further where the matter is before the courts”.

Otago law professor Andrew Geddis said the case was asking the High Court to make a “determinative ruling on whether the Health Act gave the director-general the power to issue the notices that it did”.

Geddis said police had then arrested and charged people with breaching the order.

“If the health act didn’t give the director-general that power, then all of those people who have been charged with those offences shouldn’t have been,” he said.

Those people could potentially claim damages under the Bill of Rights.

So a successful review could have significant repercussions.

Bloomfield’s notices also forced all business to close, with rare exceptions. But Borrowdale claimed the powers in the Health Act don’t allow Bloomfield to carte blanche close businesses and public spaces.

He argued that while the Act allows the director-general to close all premises of “any stated kind or description,” Bloomfield exceeded this, closing everything down without specifying the specific kinds of premises like the Act requires.

Working out which businesses could be deemed “essential” was delegated to MBIE officials, which Borrowdale argued was also an overstep, as the Health Act doesn’t give those officials the right to decide which business may open or stay shut.

The choosing of which businesses had to close has been very contentious, and if there is a successful challenge too this there could potentially be some large claims of damages.

He made the same point about the order that forbids people from congregating in outdoor places. The order says all such gatherings are banned, but the Health Act, Borrowdale claims, would require Bloomfield to actually state the kinds of gatherings that are banned.

I don’t see that damages would be possible to claim here but unless the law is rectified this could make ongoing lockdown restrictions outside the law.

The other issue at play is whether the Health Act actually gives the director-general the power to confine all New Zealanders to their homes.

Borrowdale argued that it actually should be read as meaning that only certain people can be quarantined and placed in isolation.

He says that the Act doesn’t allow Bloomfield to act for the entire country at once, but rather it forces him to look at the needs of each health district separately.

If Borrowdale is correct it would involve a lot more work for the Director general of Health in defining what can be restricted and locked down, unless the Government gets a quick law change through to make wide or blanket restrictions legal.

As with the other legal challenges I expect this one will be heard urgently, but here is no indication yet when that will be.

This action looks far better considered and targeted than the writ by A and B, which included an attempt at a political attack, and should add to clarification of the laws around lockdowns.

Previous Post
Leave a comment

29 Comments

  1. Gezza

     /  7th May 2020

    Let’s hope this gets an early hearing. Should be a fascinating case, turning on minute details.

    Reply
    • Duker

       /  7th May 2020

      Angels on the head of a pin has nothing on this case
      Some of the issues were decided by a Judge in A v Arden, the substance of the application was for a different situation but A did make the same point during the hearing , “that the DG cant confine the whole population only certain persons”
      The Judge specifically ruled that the legislation was broad enough in these circumstances for ‘persons’ to be the whole country

      Its quite amazing that Justice Kos would publically ‘ case shop’ for applicants to bring a judicial review
      “As has been noted by the Regulations Review Committee regarding notices issued under s 70 of the Health Act 1956 (20 April 2020) – and two of New Zealand’s leading public law academics, there are unresolved questions about the lawfulness of the notices issued under s 70 of the Health Act.”
      Kos was a high flying Wellington commercial lawyer who had a meteoric rise in 5 years from an ordinary High Court Judge to President of Court of Appeal…some could say he would have been National Government pick to be the next Chief Justice until …..
      Borrowdale is an editor of Butterworths Guide to Commercial Law in NZ …….

      Reply
  2. Alan Wilkinson

     /  7th May 2020

    Refreshing that there are still places and people that don’t take bureaucratic fiat supinely:
    https://dfw.cbslocal.com/2020/05/06/texas-attorney-general-ken-paxton-immediate-release-jailed-dallas-salon-owner-shelley-luther/

    Reply
    • Duker

       /  7th May 2020

      Blow hard…. hes just issues a press release…is he running for Governor
      Hairdressers would be super spreaders

      Reply
      • Alan Wilkinson

         /  7th May 2020

        The Governor supported him and it was the salon owner who showed the real guts in the face of bureaucratic and judicial bullies.

        I am sick of these pricks trying to treat us like children. Give people all the information and let them make their own decisions and find their own solutions.

        Reply
        • Duker

           /  7th May 2020

          Their own decisions ? Like the workers at meat plants in Melbourne and in US…. which have become super clusters

          “Luther received a cease-and-desist letter last week from Dallas County Judge Clay Jenkins to close her salon, but she publicly ripped it up. She had reopened her salon on April 24.”
          Contempt of court is probably why she is in jail

          Reply
          • Alan Wilkinson

             /  7th May 2020

            Contempt of bad courts is what is required.

            Yes, precisely. Everyone including meat workers should be free to make their own decisions on what is safe for them.

            Reply
            • Duker

               /  7th May 2020

              So today , the courts are bad and the politicians are good…when you agree with the outcome
              isnt that dictatorship when the courts are over riden by populist politicians, so you really dont have any constitutional concerns, even in a country that does have one federally and Texas state

            • Alan Wilkinson

               /  7th May 2020

              Courts can be good or bad. Is that concept too difficult for you?

            • Duker

               /  7th May 2020

              The despots answer….
              What happened when the Supreme Court here ruled the ‘deal’ between Pike River Coal and Worksafe ( under labour minister Bridges) to pay money in return for all charges dropped was unlawful
              All the lower courts had the same result , but the Nat Government keep appealing
              “the Supreme Court unanimously allowed the appeal and ruled the decision to offer no evidence was “an unlawful agreement to stifle prosecution”
              BOO HOO


              https://www.rnz.co.nz/news/national/344548/pike-river-prosecution-withdrawal-unlawful-supreme-court

            • Alan Wilkinson

               /  7th May 2020

              Of course it would be appalling if court cases were decided by agreement between the parties without going to court. Judges might become redundant. The Supreme Court had no option but to rule that unlawful.

          • Alan Wilkinson

             /  8th May 2020

            The state Supreme Court ordered her release.

            Reply
        • Blazer

           /  8th May 2020

          give everyone a gun Al…so they can look after …themselves.

          Reply
    • Duker

       /  7th May 2020

      Finlayson had no problems with his government giving Gerry Brownlee unlimited power to ALTER ANY Act of regulation from the Canterbury Earthquake Recovery Act
      Thats any existing act of parliament or regulation on a stroke of his pen without referral to Parliament
      AT least the existing situation many acts had dormant provisions passed by Parliament previously to makes changes during an epidemic

      Reply
      • Alan Wilkinson

         /  7th May 2020

        I don’t recall either complaints or suits arising from any actions Brownlee took utilizing those powers. Were there any?

        Reply
        • Duker

           /  7th May 2020

          They dont have the politically motivated right wing legal machine up against them- you dont see this sort of thing in Australia currently either against conservative governments.
          Mr Temm said the Law Society also pointed to the provision in the Act which made it difficult or impossible for anyone to obtain a judicial ruling on whether the powers in the Act had been used appropriately.
          Hmmm so thats how they did it
          https://www.scoop.co.nz/stories/PO1009/S00365/law-society-comments-on-canterbury-earthquake-act.htm
          His Britannic Majesty had greater powers than a mere DG , who had to act within narrow boundaries – Gerry could alter any law ( with 5 exceptions) to suit his purposes

          Reply
        • Alan Wilkinson

           /  7th May 2020

          So no complaints or challenges then and it was considered by Parliament in light of the then circumstances, passed and quickly repealed six months later.

          Reply
          • Duker

             /  7th May 2020

            You didnt read what the Law Society said where the Judges were prevented from
            “provision in the Act which made it difficult or impossible for anyone to obtain a judicial ruling on whether the powers in the Act had been used appropriately.”
            CERA
            68 Appeal
            (1)There is NO right of appeal against a decision of the Minister or the chief executive acting, or purporting to act, under this Act, except as provided in sections 69, 70, 79, and 80.
            (2)A proceeding must not be brought, and a court must not hear any proceeding, that is in breach of this section.
            So that was that
            Courts MUST NOT HEAR any proceeding…..

            It ran for 12 months , a lot longer than Epidemic lockdown will.

            Reply
            • Alan Wilkinson

               /  7th May 2020

              It didn’t run for 12 months. It was passed in September and repealed in April.

            • Duker

               /  7th May 2020

              Not so Wilco April 2016
              ‘Canterbury Earthquake Recovery Act 2011: ( passed in 2011)
              repealed, on 19 April 2016,by section 146(1) of the Greater Christchurch Regeneration Act 2016

              have you been able to get a bigger shovel recently , you certainly are digging some bigger holes

            • Alan Wilkinson

               /  7th May 2020

              Two different Acts, Duker. The Canterbury Earthquake Response and Recovery Act 2010 was the one in question giving wide powers. It was repealed and replaced by the much more restrictive one you are citing.

              You can have your hole back.

            • Duker

               /  7th May 2020

              CERA has much the same powers , the quotes about no appeal, no review are from CERA
              the CERR 2010 says
              “(3)The recommendation of the relevant Minister may not be challenged, reviewed, quashed, or called into question in any court.”
              Thats the point, CERA had the same provisions just longer and more detailed

            • Alan Wilkinson

               /  7th May 2020

              No, much more restrictive. The complaints you cited were about the 2010 Act. Here’s your shovel too.

            • Duker

               /  7th May 2020

              Not at all
              CERA
              “68 Appeal
              (1)There is NO right of appeal against a decision of the Minister or the chief executive acting, or purporting to act, under this Act, except as provided in sections 69, 70, 79, and 80.
              (2)A proceeding must not be brought, and a court must not hear any proceeding, that is in breach of this section.”
              “CERR 2010 ( this was BEFORE the major quake of Feb 2011)
              “(3)The recommendation of the relevant Minister may not be challenged, reviewed, quashed, or called into question in any court.”
              The Law Society link was CERR

  3. I agree with Andrew and hope he wins

    Reply
  1. More from Claudia Geiringer on lockdown legality judicial review | Your NZ
  2. Leaked documents “not considered advice of Crown Law” but new law proposed anyway | Your NZ
  3. Borrowdale challenge to legality of lockdown | Your NZ

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s