Leaked documents “not considered advice of Crown Law” but new law proposed anyway

Claims continue that leaked Crown Law documents suggested that level 4 lockdown restrictions were not legally enforceable (at least before a new health notice was issued in early April) but in response Attorney-General David Parker has said the document was a draft – and “not the considered advice of Crown Law” and “there was no gap in enforcement powers.”

However Parker is going to introduce new law next week to “ensure that controls on gatherings of people and physical distancing are still enforceable”. That may be an aimed at preempting a judicial review that is pending in the High Court that seeks to challenge the legality of the lockdown restrictions – see A better looking challenge of Covid lockdown legality.

NZ Herald:  Leaked Crown Law documents question legal force of alert level 4 rules

The Crown Law documents seen by Newstalk ZB say the police powers were severely limited under the first directive of director general of health Ashley Bloomfield.

That was amended anyway in early May.

However Parker insisted in a statement that the documents were not the “considered advice” of Crown Law:

“Recent speculation that the Government’s legal advice had thrown doubt on the police enforcement powers under Level 4 is wrong,” he said.

“That speculation is based on draft views provided to agencies for feedback. That was not the considered advice of Crown Law, which was that there was no gap in enforcement powers.”

Shown the Crown Law documents, University of Otago law professor Andrew Geddis said the restrictions wouldn’t allow the police to stop people from moving about and doing virtually anything, like surfing, if they weren’t congregating.

But Andrew Geddis:

Shown the Crown Law documents, University of Otago law professor Andrew Geddis said the restrictions wouldn’t allow the police to stop people from moving about and doing virtually anything, like surfing, if they weren’t congregating.

So this meant the full range of level 4 announced restrictions actually couldn’t be enforced by the police.

“The police powers under other legislation (especially the Civil Defence and Emergency Management Act) is really limited – basically, they can only be used against people who have/are suspected of having COVID-19,” Professor Geddis said.

But the Police:

In a statement released tonight a police spokesman said officers did act lawfully.

“We sought legal advice, which also took into account advice from Crown Law, in relation to the initial Health Notice (25 March). On the basis of this advice, we were able to issue appropriate operational guidance to enable our people to act lawfully in circumstances.”

Ten days after the level 4 lockdown started Bloomfield issued a second directive, again under the Health Act. It effectively told everyone to stay in their houses, unless they were on essential business.

The police then issued their own guidelines on how they could enforce it.

“The key point being, between March 24 and April 3 much of the “Lockdown rules” actually had no enforceability in law – which is what Crown Law is saying, and which is why the new notice had to be issued,” Professor Geddis said.

So the problem was then rectified, maybe, (subject to the judicial review).

Graeme Edgler also seems to have had doubts about legality but thought the actions sensible.

Despite Police and Attorney-General claims that restrictions were legal the law is going to be changed anyway. From the Beehive:


Covid-19 response: New legal framework as move to Alert Level 2 considered

A new law providing a legal framework for Covid-19 Alert Level 2 will be introduced and debated next week.

“The changes will ensure that controls on gatherings of people and physical distancing are still enforceable,” Attorney-General David Parker said.

Enforceability to date has relied on the Epidemic Notice, the Health Act and the Civil Defence Emergency Management Act.

There will be fewer restrictions under Alert Level 2 but those remaining still need to be enforceable. We don’t want these narrower controls to rely on a National State of Emergency.

“I would reiterate what the Prime Minister has said: There has been no gap in the legal underpinning or in the enforcement powers under the notices that have been issued under Level 3 and Level 4. This change is not retrospective and does not need to be.

“All notices that have been issued are in the public domain, as is the legislation upon which they are based.”

Recent speculation that the Government’s legal advice had thrown doubt on the police enforcement powers under Level 4 is wrong. That speculation is based on draft views provided to agencies for feedback. That was not the considered advice of Crown Law, which was that there was no gap in enforcement powers.

The new law will also:

  • Recognise the centrality of health factors in the measures we need to take;
  • Provide that the Minister of Health become the decision maker on the advice of the Director-General of Health;
  • Provide a transparent basis for how the rules will work and how they can be enforced;
  • Also provide for economic and social factors to be taken into account in determining appropriate measures.

“The country has achieved considerable success in addressing the Covid-19 threat. We have all given up some our liberties as we have worked together to save thousands of lives. As we reduce strictures and restore freedoms, we expect the vast majority of New Zealanders will continue to comply voluntarily with the necessary measures at all Alert Levels, but as we have consistently said, we will enforce the rules where there is serious non-compliance.”

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55 Comments

  1. Alan Wilkinson

     /  8th May 2020

    They lied about following the science and then lied about following the law. Then they wrecked the economy.

    They won’t be forgiven.

    Reply
    • lurcher1948

       /  8th May 2020

      No matter how good PM Jainda Ardern does,all the righties worry about is whose doing her hair.they are shallower than a puddle.

      Reply
    • Blazer

       /  8th May 2020

      There are some very ungrateful people in this country Al.
      They are unprincipled and selfish.
      I know of one who has takes the awesome ,natural beauty at his doorstep for granted.

      His idea of progress would be taking the dogs for a walk in the morning in splendid isolation,and seeing Judith Collins on a bulldozer coming around the corner,looking for kauri gum.
      A priveleged life in paradise, compared to the hardships millions endure on a daily basis all around the world and he sums our country up as a…’shithole’!

      We don’t know how lucky..we are.

      Reinvested the wage subsidy yet…or forgotten you received it ..already.

      Reply
      • Alan Wilkinson

         /  8th May 2020

        The tide’s just past its peak in Jacinda’s mangroves this morning, B. Now it’s going out all the ugly mud will be revealed.

        Reply
    • Gezza

       /  8th May 2020

      They won’t be forgiven.

      Balderdash, Sir Alan. Most folk probably don’t look into all that deeply & believe Jacinda’s daily spotlight appearances telling us she has saved the country from disaster.

      Even among thosexwho’ve lost their jobs there’s probably a number who will consider it just their bad luck and the inevitable out of The PM having to stamp out a vicious killer virus.

      The number of those who already couldn’t & still can’t stand the woman may increase, but odds are she’ll still come out of this ok – unless the Opposition & msm turn on her Big Time & story after story after story appear in all media showing that she overreacted & mismanaged the whole thing.

      That is not yet certain, in my view.

      Reply
      • Alan Wilkinson

         /  8th May 2020

        The UK is forecasting a 14% fall in GDP, G. There are no good stories coming for the Government.

        Reply
        • Duker

           /  8th May 2020

          Because they delayed their lockdown too long, they have to stay under restrictions for much longer….
          So you love ‘predictions’ like this now…wheres the science that says 14%.
          Keep in mind that data from the future is a teensy weensy bit hard to find

          Reply
            • Duker

               /  8th May 2020

              Thats a source , not ‘teh science’
              “The estimates have an average of -14%. However they range from JP Morgan’s calculation that UK GDP in the April-June quarter will come in at -7.5% – a sharp contraction – to Capital Economics’ forecast of -24% – suggesting nearly a quarter of entire economic activity will be lost.”
              Notice it is an average for Q2 alone , the FULL year is much less

              Thats schoolboy maths , just average some predictions…voila ( thats schoolboy french)

              You are the one rabbiting on about ‘The science’ but then love the numbers when it suits you.
              Dont Trust completely any numbers for the future, a schoolboy can tell you there arent any

            • Alan Wilkinson

               /  8th May 2020

              I never said it was science,I said it was a forecast, twit. It is a mean of several so a reasonable likelihood of being in the right ballpark. Even a 7% drop is catastrophic.

            • Duker

               /  8th May 2020

              When any other forecasts come up , you say wheres the science.
              Plus you are quoting estimates for a single quarter not the whole year – The UK is forecastinga 14% fall in GDP- .
              When you find someone who really can predict the future , let me know , for sure I wont be asking about UK GDP
              However If you are bombastic about epidemiology predictions dont suddenly turn into a lover of predictions in another field you know nothing about either

            • Alan Wilkinson

               /  8th May 2020

              When a worst case forecast is the basis of destroying the economy and the livelihoods and savings of millions it is necessary to ask what were the assumptions. Unless you are a loony Lefty.

        • Blazer

           /  8th May 2020

          recession was imminent regardless…
          ‘Reality check for resident Morris dancers about lockdown and the…economy.
          Sweden no lockdown-36,000 new jobless in March alone.’

          Reply
      • duperez

         /  8th May 2020

        Inevitably there will be those who think Ardern caused a disaster and those who think she saved NZ from one.

        Also that her daily (even if they weren’t daily) ‘spotlight appearances’ should not have happened. You know for certain that if Ardern had seldom appeared those claiming she was only doing so for personal PR reasons would then claim she was hiding and should be fronting.

        Whatever, she got there and of course the upset is her mannerisms, the lack of detail, reading off the page, not taking enough questions, not asking certain journalists, favouring certain journalists, being so familiar as to use journalists ‘ christian names, lying.

        It’s very clear she’s the worst Prime Minister in our history. Or the best PM in our history. Or just another Prime Minister. And just someone doing a job in ways some like and agree with or not.

        I’ve seen those swap TV programmes. For the duration of the virus thing we should’ve done a swap with another country. The person having carte blanche within the normal powers and parameters. Imagine having a real leader in charge, someone with a real grasp and experience. The great world leader, the greatest President in US history Donald Trump instead of Ardern?

        Reply
        • Gezza

           /  8th May 2020

          😱 Christ! 😥

          Stop it dupers! I’m having enuf trouble sleeping as it is! 😮

          Reply
  2. lurcher1948

     /  8th May 2020

    Stolen from Kiwiblog,the nutters are up early
    dave_c_
    This government is ‘out of control’.
    Time for the Governor General to step in and dissolve this corrupt government.

    Thumb up 23 Thumb down 0LOG IN TO REPLY REPORTMAY 8, 2020 7:04AM

    Mike Hosking for PM, Mark Richardson for DPM…AR15s for everyone, freedom to die of Covid-19 as a basic right, a right-wingers greatest desire in life

    Reply
  3. Blazer

     /  8th May 2020

    With the election looming…right wing propaganda has already gone into over drive.
    Unfortunately the inevitable hit the economy will take, will provide exactly the ammo the right wing strategists wish for .
    Their campaign will rely on the standard misconception that…National are a safe pair of hands,sound economic managers’….manufactured nonsense .

    Dirty politics has served them well,they will not change.

    Reply
    • Alan Wilkinson

       /  8th May 2020

      Good to see some realism amongst the dreamers, B.

      Reply
      • Blazer

         /  8th May 2020

        ‘The men the American people admire most extravagantly are the most daring liars; the men they detest most violently are those who try to tell them the truth’.
        H. L. Mencken

        Reply
  4. Duker

     /  8th May 2020

    The legal comments even for ‘scholars’ seems to absurd even to be classed at ‘law student level’
    Somehow they are saying the quarantine is only legally enforced for a few people not the whole country and done by a mere civil servant, quelle horreur…ohh and the Health Act is old
    Yet the requirements need first a State of Emergency and A national epidemic notice from the PM
    All for a few persons?
    In reality, separate sections allow a District Court to impose restrictions on an infectious individual

    A few years back the Tobacco companies in Australia went to court over plain wrappings for cigarette packs, with some expensive lawyers to argue their case that it was a taking of their intellectual property ( the packet designs and branding)
    The Higher Courts ruled that it was an undergraduate level error to assume that and IP is not really property merely a licence from the government …hehehe Im sure their lawyers told them that but they wanted to create a stink for political reasons or delay the process

    Reply
    • Alan Wilkinson

       /  8th May 2020

      Been to law school, Duker, or just fantasising?

      Reply
      • Duker

         /  8th May 2020

        People I know who did say they werent really suited. One women said its a relentless responsibility ( family law) as it was real peoples lives and endless minor details.
        Maybe Im suited for it, as I can pick holes in things pretty well. But of course Ive other talents and there are other fields Im much more interested rather than petty nonsense which mostly comes up here

        Reply
  5. Amongst the outrage a reasoned opinion from Kiwiblog:

    Just a quick word about judicial review. Even if the High Court agrees that the notices made under the Health Act 1956 were unlawful (in the sense of being made outside the scope of the powers conferred by that Act – or ultra vires as we lawyers like to say) it does not mean the Court will do anything about it. All relief in judicial review proceedings is discretionary which means the Court can and sometimes does refuse to make orders even if it accepts that a statutory power has been exercised unlawfully. The normal order sought in a case like this is one which sets aside the unlawful decision. But the Court will not set aside the declaration of Level 4 or Level 3 if those notices have already expired.

    But even if the Court were to restrict itself to a declaration that the notices were unlawful, it would open a dirty great can of worms. Among other things it would mean that anyone convicted of breaching the lockdown rules would have an instant ground of appeal.

    None of this is to say that the notices were actually unlawful or that the judicial review proceeding will succeed. It may well be that Borrowdale et al are doing this because they consider it constitutionally proper for the legality of the shutdown to be considered by the Court. But it will definitely be interesting.

    https://www.kiwiblog.co.nz/2020/05/a_formidable_legal_challenge.html#comment-2708492

    Reply
    • And if you thought compensation might be possible:

      There is no automatic right to compensation for losses suffered as a consequence of the unlawful exercise of statutory power. There is a tort of misfeasance in public office which provides a remedy if the decision-maker acts maliciously with intention to cause harm to the other person. But that’s an impossibly high threshold to meet – as far as I know nobody has ever succeeded in a misfeasance claim in New Zealand. If the Government or the DG of Health acted on legal advice when making the notices that will almost certainly be fatal to any claim for misfeasance.

      You could try to claim damages for breach of the New Zealand Bill of Rights Act, I guess. But that would have its own problems, not least being that everyone’s rights were curtailed, and there was a genuine public health reason for doing so, even if the notices were unlawful.

      So no easy path to compensation for anyone, I’m afraid.

      https://www.kiwiblog.co.nz/2020/05/a_formidable_legal_challenge.html#comment-2708626

      Reply
      • Duker

         /  8th May 2020

        Yes .Peters won his case on the technicalities of the law, but lost on the facts and didnt get a cent.
        The Pike River families won after a long legal batle when the Supreme Court ruled the dropping of charges against Pike River Coal and its managment in return for a cash payout ( Simon Bridges minister of Labour) . The Court says it was invalid but they couldnt unscramble the egg after this time.
        Simon Bridges was at the wheelhouse when this happened, as Minister responsible for Work Safe
        Getting compensation or reversing the truck back to where it was isnt possible for the Lockdown

        Reply
        • Peters lost on “the technicalities of the law” – he had no evidence to back up his allegations. Even if evidence had fallen in his lawyer’s lap he would have failed on some of his allegations, because it’s extremely unlikely all of those he charged could have been guilty, he wasn’t alleging a group conspiracy.

          Reply
          • Duker

             /  8th May 2020

            At least 12 people the court was told knew from Tolley and Bennett telling them… from the Judges decision.
            Yes the journalists cant be put in the witness box and forced to reveal who told them …yet they knew stuff that was confidential under the Social Security Act.

            Peters and NZF can never win with you PG..even when they do and yesterday you ran with that spurious nonsense about the donations dropping to only 16% of the previous year…. no real evidence there either ….. but its Geddes so it must be true !

            Reply
            • No evidence is no evidence, something you don’t seem to understand as a fundamental of our justice system.

              Ironic you say “that spurious nonsense” when you continue dirty insinuations despite no proof, even in a court of law.

            • duperez

               /  8th May 2020

              I’m confused. If the Judge decided that at least 12 people knew from Tolley and Bennett telling them, was there evidence to that affect?

        • Duker

           /  8th May 2020

          Thats what judges do , summaries witnesses statements and if its not contested they decide its then a fact…
          thats how courts work, juries decide facts and without a jury its the judge

          Its not a good time now but Ill go through the judges decision listing all the persons that knew but werent supposed to.
          Surely you read the judgemnt PG , its not a dirty insinuation at all, however we all know Tolley told family members and there were many others . It had the effect of so many knew outside the official circles that Peters had an impossible job to narrow it down.

          Reply
          • Peters had an impossible job to narrow it down because he had no evidence. It’s really that simple.

            Listing who knew or might have known makes no difference to that. Whether it was two or twenty makes no difference. No evidence, no case.

            Reply
    • And another (there are occasional worthwhile comments among the cacophony of crap at Kiwiblog):

      All makes perfect sense to me – holding authority to account is always proper.

      And it only helps them, to do their job better, with more forethought and preparation to all our benefit.

      But I don’t think it means this government in particular is especially damned by the lack of legal preparation – no government in our past put much effort into preparing for a national quarantine in the face of a pandemic, we were all caught flat footed.

      This should also be a reminder to check on how much we learned and have improved after the (no longer quite so) recent earthquakes.

      Re Kiwiblog, David Farrar seems to have revved up his campaigning for National and against Labour since Covid arrived. Maybe he has more time to put into it under lockdown, or maybe it’s the polls. Quite possible a bit of both.

      Reply
      • Duker

         /  8th May 2020

        Hes knows the polling numbers for National…. would hate to think hes gone back to his old dirty politics days when his stuff often came directly from the ‘Office of the party leader’ ( taxpayer funded to boot)
        Did he cover Simons stirring pean at the beginning saying we are as one nation, we MUST commence AT LEAST 4 weeks from tonight … his polls would told Simon as much during that week
        ” There is no National or Labour or Green or ACT or New Zealand First; just New Zealanders.”
        “It’s possible, but not likely, that we come through this somewhat quickly. Some will say, ‘well, shutdown – it was an over-reaction’. I’d prefer that was the case because it means people did not die needlessly.
        “He waka eke noa – the canoe which we are all in without exception”
        Dont you love it how Simon says we are all in the canoe, when the polls would have told him that

        Reply
        • Corky

           /  8th May 2020

          I told Labour they should have gone to the polls early. Then along came Covid-19. And a given election win is no longer a certainty…especially if the election is delayed.
          I still expect Labour to win..but would not be the least bit surprised if they lost.

          Reply
          • Blazer

             /  8th May 2020

            would you like a dollar each way….Braveheart?

            Reply
            • Corky

               /  8th May 2020

              Did you read where I wrote I was predicting.? I just suggested at the beginning of this year Labour were fools for not bringing the election forward to May, June or July.

              Now, look what’s happened to them.The data is so complicated, it’s hard to pick a winner.

              It may boil down to: Labour has done a good job given the circumstances… or, this government has stuffed the economy and our lives.

              I wouldn’t have a clue, Cupcake. All I know is Labour didn’t have to be in this situation ( election wise).

            • Gezza

               /  8th May 2020

              It all makes for exciting politics tho. Being retired, & comfortably off, I’m able to just sit back & enjoy watching the spectacle unfold. To tell the truth, the news has been so much blimmin’ Covid-19 numbers for weeks on end end – ad bloody nauseum – anything happening that breaks that mold is a godsend.

          • It’s obvious that Labour will either win or lose the election.

            So will National.

            I don’t think that any Government can call an election to suit thenselves so far ahead of the end of their term. It doesn’t matter who tells them to do so.

            Reply
      • duperez

         /  8th May 2020

        He’s well and truly down Desperation Street and he’s knocking on every door, getting into every rubbish bin, looking into every letterbox, kicking every cat.

        Reply
        • Alan Wilkinson

           /  8th May 2020

          Patience, dups. Give the public time to realise they’ve been done like the mugs they are – by even greater mugs.

          Reply
    • Another lawyer comment from Kiwiblog:

      There is in todays edition of the Northern Law News, the weekly publication of the Auckland District Law Society an interesting article that explores the legality of the various lock down rules imposed under the health act. the conclusion is like other articles as I read it is that the first lock-down notice was unlawful, and there is a real likelihood that the second one which amplified the first was likewise unlawful. So as I said elsewhere the next notice issued in relation to level 2 restrictions will be closely examined by all and sundry to ensure it meets the requirements of the health act.

      https://www.kiwiblog.co.nz/2020/05/crown_law_said_lockdown_was_illegal.html/comment-page-1#comment-2709015

      Reply
  6. Gerrit

     /  8th May 2020

    The problem I see is NOT one of questioning the lock down but the fact that the state can ignore its own laws. If we accepts that this time it was for “the greater good” that is fine, but it sets a precedent that future governments of the state can use to invoke any civil constraint as they see fit.

    Labour should have fronted and said right from the start, this is not lawful, as yet, but we ask for your indulgence and will introduce legislation to close the loophole ASAP. Am pretty sure they would have got cross party support to introduce the required legislation. You know; open and transparent governance!

    Therein lies my problem, the lied and they obfuscated.

    We can also see that the closing of the borders may have been four weeks late due to the law not being in place to enforce the closed borders that National called for two weeks before the lock down..

    Reply
    • Duker

       /  8th May 2020

      Total nonsense. The Police chief said it was lawful, and the police are specifically mentioned as the enforcement to State of Emergency and the Health Act epidemic provisions.
      It all boils down to legal technicalities over whether “persons’ is the whole country or a smaller group

      Reply
      • Gerrit

         /  8th May 2020

        Just because the police chief said it was lawful (in his opinion) does not make it so. They are guided by the legalese of the crown law office as much as you and I are.

        Perhaps Parker will show us all, in this open and transparent government, what the crown law advice was? Why hide behind “commercial” sensitivity? Obfuscation; much so!!

        Reply
        • Duker

           /  8th May 2020

          They are offering cherry picked sentences from a legal opinion….I can see too that its not in powers given to Police under their usual laws they operate …The Summary Offences Act, The Crimes Act, The Misuse of Drugs Act etc.
          The restrictions are all in the Emergency Prepardness Act , The health Act and its only legal ‘could bes’ that the Police cant use these as requested by Medical Officer/Civil Defence office.

          I see our Dunces A and B are back with an application for judicial review…that will be going to the bottom of the court calendar. This time they want those charged and convicted to have their convictions quashed ….not sure how A and B who werent convicted can pull that one as they have no standing to go to court over that one. Now they want publicity … who knew that they are almost schitzo (delusions, hallucinations, withdrawal from reality, and disorganized patterns of thinking and speech.)

          Reply
  7. Alan Wilkinson

     /  8th May 2020

    Another example of the Government’s kindness in inaction. Immigration NZ delays an urgent application for a daughter to visit her dying mother for more than two weeks and approved it only after her mother had died.
    https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12330528

    Reply
    • Duker

       /  8th May 2020

      Confusing ..much
      “The email said she had a month to apply for a visitor visa, which would have to be used within a month of being issued. It offered no advice on how long that visa would be valid for.”
      Duh ..it says a month.
      Shes an Australian citizen she doesnt need a visa to stay in NZ , she was just applying for Covid exemption

      Reply
      • It had to be used within a month; that doesn’t mean that it was for a month. It could have been for a week or fortnight but that would have to be used within a month. It seems to have been a major stuffup. Why not just say how long it was for ?

        I’m glad that the young woman who wanted to see her dying mother was let out to do so.

        The idiocy of not testing the man who wanted to see his dying father because he didn’t have any symptoms but not letting him out because he hadn’t HAD a test was beyond belief.

        Some people have an odd idea of kindness.

        Reply
  8. Alan Wilkinson

     /  8th May 2020

    The original litigant pair have now also filed a request for a judicial review.

    Reply
    • Duker

       /  8th May 2020

      Its as silly as the first one… they need high powered legal reasoning to back their claims , but dumb and dumber dont give up, because they are …

      Reply
    • This isn’t a surprise given things I can’t say. The court should require security of costs.
      “The High Court confirmed it had received the application from the men for a judicial review yesterday, but it was yet to be processed.”

      I hope Borrowdale’s case is given priority, and I hope for his sake the cases aren’t joined.

      “They have also indicated they wish to have their interim name suppression waived.” That was declined and due to run out at 4 pm today anyway (the implication is they can be named then but I want official confirmation first) so they don’t need to do anything to ‘waive’ it.

      https://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=12330492

      Reply

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