More from Claudia Geiringer on lockdown legality and the judicial review

Following the filing of a legal challenge to Covid lockdown restrictions by Andrew Borrowdale via a judicial review – see   A better looking challenge of Covid lockdown legality – law professor Claudia Geiringer responds:

RNZ:  Was Covid-19 lockdown legal? Professor Claudia Geiringer explains

“I’m in the camp that thinks the Ardern Cabinet are doing a magnificent job overall in managing an incredibly complicated regulatory challenge, but the problem is that they’ve inherited a legal framework for managing a public health crisis that in the view of a number of experts hasn’t turned out to be sufficiently nimble,” constitutional and parliamentary law expert Professor Claudia Geiringer told Checkpoint.

“The argument centres on these powers in the Health Act, which are at the heart of how the lockdown has been enforced.

“The key argument is that these powers are ‘ultra vires’, which means they go beyond their legal power, they go further than the law actually allows.

“The key argument relates to … a couple of orders that Ashley Bloomfield has made requiring us all to stay home, and the orders claim authority from a clause in the Health Act that says that in an epidemic a medical officer of health can require persons to be isolated, quarantined or disinfected.

“So the Director-General said, ‘the law says I can put people in isolation or quarantine, so I’m putting all of you – the whole country – into quarantine, isolation.’ And the argument is that it’s not clear the statute actually contemplates a direction to the community at large, as opposed to a medical officer quarantining, say, a particular infected individual”.

“It looks like some of the powers that have been relied on really may be more focused on making a requirement in relation to named individuals. And just to be clear, that’s not a slam dunk. There’s room for different views on this, and it may or may not succeed in court.”

So the judicial review may or may not succeed (obviously), but at least it will cover more of the legal arguments.

It matters for two reasons, Prof Geiringer said.

“The first is that these are some of the most extensive coercive powers ever to be exercised in this country’s history. Personally, I’m comfortable that they’re being exercised for good reason. But in a democracy when the state’s exercising coercive power, we want those powers to be authorised by our elected Parliament, and we want them to be authorised in the clearest possible terms, so that we can all know our rights and responsibilities.

“One other reason I think this really matters is that I think underlying this challenge there’s a significant underlying problem with the current law, which is that the power is located in the wrong place.

“Cabinet’s instinct throughout this period has been that important decisions about the timing and scope of the lockdown need to be made by them. And that’s got to be right hasn’t it – that these decisions are far too significant and multifaceted to be reposed in a medical officer of health, but that’s what the law currently does.

“In fact, if the Director-General has placed undue weight on Cabinet’s views in making these orders, that could actually give rise to an additional ground of legal challenge, because the statute doesn’t actually give any power to Cabinet.

“Cabinet has the power to put us into a State of Emergency … the minister does … and also to trigger the Epidemic Preparedness Act. But once they’ve done that, the specific coercive powers on which the police have primarily relied … all of that detail, it’s not actually for Cabinet, it’s for the Director-General of Health.

“Probably the Director-General of Health is entitled to take Cabinet’s views into account. But there’s at least an argument that he cannot be unduly influenced by them, because the decision in the statute is conferred on him”.

And that’s a key issue, whether one unelected public servant should be given so much power that can result in such a large effect on people and businesses. A health official will likely lean towards health considerations more than social and business considerations.

“I think there’s a very strong argument that some of the orders are ‘ultra vires’ … illegal [in laypeople’s terms] but the law in New Zealand in the end is what the courts say the law is.

“And you can expect that a judge faced with this complaint at this particular moment, might give the government an awful lot of leeway. So I’m not particularly keen on predicting what a court might do here.

“But what I would say is that I don’t think it’s satisfactory for us as a community to have such significant coercive powers based on such slight legal authority. I think we need a legal regime that better reflects what the government is trying to achieve.

“None of the arguments in this particular legal case that’s been brought are that the law couldn’t or shouldn’t provide that authority. The argument is that it doesn’t.

“So Parliament could meet tomorrow and shore up the legal powers. But the argument is that at the moment the powers that are being exercised are not there.”

The judicial review should at least start the process of checking whether laws have been followed correctly or not, and whether current laws are appropriate (like giving a public servant so much power beyond Government influence.

The Court of Appeal referenced a previous discussion be Geiringer (and Andrew Geddis) when it said:

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.

See:

 

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27 Comments

  1. Duker

     /  7th May 2020

    “And that’s a key issue, whether one unelected public servant should be given so much power that can result in such a large effect on people and businesses”

    Thats irrelevant as far as the courts go…should be doesnt even come into .
    Its clearly in the legislation that the Director General is given the power to quarantine. There is a suggestion that the quarantine powers arent for the whole country …thats all.
    However the legal steps followed mean
    1) State of National Emergency is required for whole country – as allowed in legislation by a minister
    2) National Epidemic Notice issued by the PM, as allowed in legislation.

    The DG doesnt on his own bat decide to have a lockdown , the political steps were followed first

    In the Christiansen case the Judge said
    Legal Principles
    [43] It is important to understand that this is not an appeal. The Court is not entitled
    to ask itself whether the substance of the decisions were right or wrong
    . There are
    limits to scrutiny of the merits. Traditionally, the primary role of the Courts in judicial
    review is to supervise the decision maker’s reasoning process – how, rather than what,
    decisions are made.

    Another one of Geiringers points is
    “And the argument is that it’s not clear the statute actually contemplates a direction to the community at large, as opposed to a medical officer quarantining, say, a particular infected individual”.
    “It looks like some of the powers that have been relied on really may be more focused on making a requirement in relation to named individuals.”

    This came up in the case A v Ardern where the judge said
    “[32] Turning to s 70(1)(f) Health Act, the effect of the order is to “require persons
    … to be isolated” in their current place of residence.
    [33] Although A did not dispute the pre-requisites in s 70(1) for the making of the
    order were met — his argument as to the lawfulness of the order being quite different
    — A did raise a point as to whether s 70(1)(f) permits the Director-General to require
    everyone in New Zealand to be isolated by staying at home. On this point, A’s
    submission on the text of s 70(1)(f) was that “persons, places, buildings …” connotes
    smaller, confined groups of persons, not the entire population.
    [34] In response, Mr Powell submitted the word “persons” in s 70(1)(f) is
    sufficiently broad to cover “all persons within all districts of New Zealand”, being the
    ambit of the order.23
    Mr Powell submitted this must be so, given the express purpose
    of s 70(1) is to prevent the outbreak or spread of any infectious disease, and there
    would be no reason to confine s 70(1)(f) as A submitted.

    However the Judge ruled
    ” Accordingly, having regard to all of s 70(1), I am satisfied the reference to “persons” in s 70(1)(f) should not be read down as A submitted, and that “persons” is capable of encompassing the entire population.

    https://www.courtsofnz.govt.nz/judgments/high-court/

    Reply
    • Alan Wilkinson

       /  7th May 2020

      If “should” doesn’t come into it, why is it in the judgement?

      Reply
      • Duker

         /  7th May 2020

        Thats A’s submission – ‘should not be read as submitted’.

        Doesnt mean the the legislation should be checked to see if ‘one civil servant should be given all that power’.
        The power is subject to politicians oversight as its the PM who creates the Epidemic Notice first.

        Reply
        • Alan Wilkinson

           /  7th May 2020

          The judge is deciding how the law should be interpreted and implemented.

          Reply
          • Duker

             /  7th May 2020

            Shes saying A’s submission SHOULD NOT be read as submitted . She says so

            Reply
            • Alan Wilkinson

               /  7th May 2020

              You appear to have comprehension problems.

  2. artcroft

     /  7th May 2020

    The system actually seems robust. There’s a two step process involved before the DG gets his or her hands on all that power

    “Cabinet has the power to put us into a State of Emergency … the minister does … and also to trigger the Epidemic Preparedness Act. But once they’ve done that, the specific coercive powers on which the police have primarily relied … all of that detail, it’s not actually for Cabinet, it’s for the Director-General of Health.”

    Now of course it’s entirely possible that the incompetents in Labour could put us into a state of emergency by accident. And Tywford, if minister, could certainly tigger the Epidemic Preparedness cause without knowing what he was doing.

    But a solid center right administration would manage this process easily. Which is why voting for the right is the necessary thing to do.

    Reply
    • Blazer

       /  7th May 2020

      ‘But a solid center right administration would manage this process easily. Which is why voting for the right is the necessary thing to do.’

      Sure arty …look at what a cluster fuck the Transmission gully project is…compliments of Joyce and present LOTO Bridges…a blow out of up to 1 billion.
      Bridges also proved with the Anadarko negotiations he has N.F.I…and is a huge liability to NZ.

      Reply
    • Duker

       /  7th May 2020

      “solid center right administration would manage this process easily. ” You mean like in 2011 with CERA where they prohibited the courts from hearing any judicial review…No appeal , no review to Gerrys edicts, which for the purists came as ‘Orders in council’ signed by the Governor General or their deputy in the Executive Council.
      They just channeled HenryVIII
      “The only things Brownlee cannot over-ride at the flick of his hand are habeas corpus, the New Zealand Bill of Rights, our right to vote, and the 1688 Bill of Rights”

      http://gordoncampbell.scoop.co.nz/2010/09/15/gordon-campbell-the-christchurch-earthquake-law/

      Reply
  3. Tom Hunter

     /  7th May 2020

    I have to chuckle about this. He’s spotted loopholes in the law that mean some government and Police actions were legally questionable?

    So what. That just means they’ll plug the loopholes for next time.

    For Geiringer it’s just an exercise in legal intellectual fun. Wankery in short.

    Given the Geiringer’s fundamental support for what was done she’ll never actually question the justice of it from the POV of a Bill of Rights or anything else. Technical legal analysis but not justice for civil liberties, for what does that count in a health emergency that suspends them for the greater good.

    Sickening.

    Reply
    • Alan Wilkinson

       /  7th May 2020

      In a sane country, the Government would focus on its core responsibilities – namely controlling the borders; identifying, testing and quarantining infected individuals; providing necessary supports through its departments and agencies; and keeping the public fully informed of the latest and best information about transmission risks and solutions.

      It would then allow individuals and companies to make their own decisions about how to manage their risks and run their lives.

      Here we insist on the tragedy of central control as usual blind to its costs.

      Reply
      • I must say that more and more people are becoming irritated (to put it mildly) with the house arrest and closed businesses.

        Reply
        • Duker

           /  7th May 2020

          You should get the irritation checked out…. it could be something, I hope its not in the throat

          Reply
          • It’s not that kind of irritation; it’s anger. You must have heard people talking about how maddening it is to be locked down for 7 weeks.

            Reply
      • Fight4nz

         /  7th May 2020

        Bs. In reality an epidemic spreads exponentially through a population, testing cannot keep pace, medical facilities are overrun, leading to higher mortality and many infected left undetected and untreated in the community to further spread the disease.
        A random assortment of actions at the individuals and workplace level would have zero effect. The only course, and the fundamental purpose of government, when threatened as a population is to lead the nation in a unified and as we have witnessed demonstrably effective response.
        The only reason you are feeling so comfortable to witter on is the extremely effective measures taken and that the virus has not as yet mutated to a far more aggressive form lethal to a wider range of the population. And if it does the you have the regime we have been under to thank for the probability that we would now still be able to contain it.
        And no, not one person I know or have come across in my rare public outings, has complained about having to comply. In fact by far the prevailing concern is that idiots and ego-centric dickheads don’t stuff the whole effort up for everyone who has put all this effort in.
        But don’t worry despite your complete lack of appreciation of these privileges a sane government and a willing public has provided you, they will continue to do so.

        Reply
        • Alan Wilkinson

           /  7th May 2020

          You obviously need a wider circle of acquaintances. Exponential growth is the initial state whatever the regime. Testing and isolation of infected and their contacts and especially of international arrivals do indeed control it as has been shown everywhere including countries like Sweden which avoided lockdowns. Individuals do not act randomly, nor do businesses which need to care for both staff and clients. The only reason we had the lockdown was the Government’s abject failure to do its duty and control the border and the hundreds of infected people it introduced. Your understanding is pitiful.

          Reply
          • Fight4nz

             /  8th May 2020

            Actually what is pitiful is that I bother to respond to your entrenched “government=wrong” fanaticism, which prevents you from perceiving any reality which does fit your agenda.
            Glaring example, Sweden, invariably cited as the no lockdown model. No mention of Italy, Spain, UK, New York? They didn’t go into lockdown either until the situation forced itself on them.
            And obviously little thought on what it is like in Sweden Jan – Mar:
            – temperatures: well below zero
            – inherent social conditions: isolation
            – tourism: negligible
            – environment conditions conducive to virus survival: no
            Surprise, surprise curve was flat in Sweden.
            NZ Jan – Mar:
            – temperatures: balmy
            – inherent social conditions: extremely high random mixing
            – tourism: 1000’s arriving per day
            – environment conditions conducive to virus survival: perfect

            “Testing and isolation of infected and their contacts”
            Total tests carried out to date 160,700. A monumental acheivement but still only around 3% of the population. Chasing down a virus by testing alone? Not a chance.

            “control the border”
            NZ is acknowledged globally for having acted strongly and early. That includes locking down the border. And before that we had closed boarders with China. This of course prompted University chancellors to complain. No doubt you joined that chorus.

            Enough said.

            Reply
            • Alan Wilkinson

               /  8th May 2020

              Tosh. Random testing is pointless in the early stages. What was necessary was focused testing of international arrivals, all those showing symptoms and contacts of the infected. Your claimed non-comparison with Sweden is so ridiculous I won’t bother with it. NZ didn’t act early and allowed many hundreds of infected people to enter uncontrolled. Then it killed the economy with arbitrary and ridiculous rules for which we all now pay a heavy price that will kill far more people than the virus and many of the victims will be young. Yes, some idiots will continue to support the Government. They like being treated like children and deserve it.

    • Duker

       /  7th May 2020

      These are the 1688 Bill of Rights …. nothing here to concern the Lockdown

      The Act asserted “certain ancient rights and liberties” by declaring that:
      the pretended power of suspending the laws and dispensing with[nb 3] laws by regal authority without consent of Parliament is illegal;
      the commission for ecclesiastical causes is illegal;
      levying taxes without grant of Parliament is illegal;
      it is the right of the subjects to petition the king, and prosecutions for such petitioning are illegal;
      keeping a standing army in time of peace, unless it be with consent of Parliament, is against law;[nb 4]
      Protestants may have arms for their defence suitable to their conditions and as allowed by law;
      election of members of Parliament ought to be free;
      the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;
      excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
      jurors in trials for high treason ought to be freeholders;
      promises of fines and forfeitures before conviction are illegal and void;
      for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

      https://en.wikipedia.org/wiki/Bill_of_Rights_1689#Provisions_of_the_Act

      As usual Tom , you have absolutely no idea and just toss buzzwords around

      Reply
      • Alan Wilkinson

         /  7th May 2020

        Magna Carta in 1215, whose article 39 reads: “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor will we send upon him except upon the lawful judgement of his peers or the law of the land.”

        Habeas Corpus Act 1679: In criminal matters other than treason and felonies, the act gave prisoners or third parties acting on their behalf the right to challenge their detention by demanding from the Lord Chancellor, Justices of the King’s Bench, and the Barons of the Exchequer of the jurisdiction a judicial review of their imprisonment.

        Reply
        • Alan Wilkinson

           /  7th May 2020

          And a likely relevant judgement:

          New Zealand
          The Bill of Rights is part of the laws of New Zealand.[45] The Act was invoked in the 1976 case of Fitzgerald v Muldoon and Others,[46] which centred on the purporting of newly appointed Prime Minister Robert Muldoon that he would advise the Governor-General to abolish a superannuation scheme established by the New Zealand Superannuation Act, 1974, without new legislation. Muldoon felt that the dissolution would be immediate and he would later introduce a bill in parliament to retroactively make the abolition legal. This claim was challenged in court and the Chief Justice declared that Muldoon’s actions were illegal as they had violated Article 1 of the Bill of Rights, which provides “that the pretended power of dispensing with laws or the execution of laws by regal authority … is illegal.”

          Reply
          • Alan Wilkinson

             /  7th May 2020

            Sir Gerald, I suspect your superior’s opinion regarding retrospective legislation might be at risk from this decision also.

            Reply
            • Gezza

               /  7th May 2020

              It was never challenged.

            • Alan Wilkinson

               /  7th May 2020

              Until they are we never know but it would risk falling into the category of imposing obligations or penalties neither known nor approved by parliament at that time.

  4. Corky

     /  7th May 2020

    Barry Soper has leaked documents… who would have thought?

    Reply
    • Duker

       /  7th May 2020

      They have had them all along…the same documents, its just a ‘re-leak’ of the previous stuff from Crown Law blah blah
      “Police Commissioner Andrew Coster, who only started in the role last month following predecessor Mike Bush’s retirement, said the legal basis for enforcing the lockdown rules was in the Civil Defence Emergency Management Act.”

      Reply
      • Corky

         /  7th May 2020

        ”Incumbent Attorney-General David Parker has thus far refused to make public the advice, despite mounting pressure from the Epidemic Response Committee and MPs to do so.”

        Reply

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