More from Geddis on Covid lockdown legality

Law professor Andrew Geddis summarises the arguments in support of and against the Government position on the legality of Covid-19 lockdown restrictions, which are being tested in a judicial review by Andrew Borrowdale – see the latest on this in Borrowdale application to transfer judicial review to Court of Appeal declined.

Pundit:  The Lockdown And The Law – Where Are We Now?

Last week saw an application for judicial review filed in the High Court to challenge the legality of the level 4 and 3 lockdown rules. In essence, this challenge argues that various Health Act notices are “ultra vires”; that is, they purported to impose restrictions that went further than Parliament had authorised through legislation.

The government’s position

In a speech on Friday afternoon – and how very dare he interfere with my Zoom drinking time! – the Attorney-General, David Parker, outlined at some length why he and Crown lawyers are and were satisfied with the lockdown’s legal basis. Let me go on the record as noting that this is an entirely respectable legal position to take. It has been ably echoed by Auckland Law School’s Edward Willis, in an unfortunately snapped twitter thread (part one herepart two there).

As he notes (and any errors in paraphrasing are mine alone):

  • Ashley Bloomfield, as Director General of Health, could only issue such orders if the Minister authorises him to; or there is an epidemic, or there is a state of emergency;
  • The actions then taken can be made to fit the statutory language – after all, Ashley Bloomfield’s notices did in fact “require persons … to be isolated [or] quarantined … as he sees fit”;
  • They comply with the important purpose of granting the power, which is to “prevent[] the outbreak or spread of any infectious disease”;
  • The power in s70 to quarantine or isolate “persons” may be contrasted to the powers in Part 3A of the Health Act, which allow for quarantining or isolating “individuals”;
  • And there’s a general principle of statutory interpretation that says “An enactment applies to circumstances as they arise” – which is where the context of a never-before experienced disease with the potential to kill thousands of people enters into the picture!

As such, on this reading it was entirely proper for the government to conclude there was the necessary legal authority to tackle COVID-19 as was done. I’ve already noted that this is an entirely reasonable view to take. And it very well may be that the High Court agrees with it in the upcoming judicial review proceedings.

The counter-argument

However, there is a “but”. As Prof Claudia Geiringer and I pointed out a couple of weeks ago now, the government’s reading of the Health Act provisions is not the only available one. Without going over too much old ground, there are some questions regarding the government’s position:

  • Did Parliament really intend that a one sentence power to “isolate or quarantine” persons would confer on a single public health officer an open-ended ability to confine the entire country to their homes “as he [sic] sees fit”?;
  • If so, wouldn’t that broad power render entirely redundant the separate power in s70(1)(i) to require people to remain in the place where they are isolated or quarantined, but only until tested or treated?;
  • And, the power to “require” persons to isolate or quarantine comes with no obligation to issue a public notice, as compared with s70(1)(m) power to issue an “order” shutting down certain public places – perhaps suggesting that it wasn’t really intended to have the same widespread public application;
  • And, while statutes must be read in the circumstances in which they arise, they also must be read in a way that requires clear and certain language when overriding individual rights. Or, as Whata J put it in a High Court decision considering the exercise of powers under another piece of emergency legislation; “I think it can be fairly said that the wider the power and the more drastic the interference [in rights the common law stridently seeks to protect from unlawful interference], the more careful the Court will be to scrutinise the exercise of that power to ensure that it conforms with its strict statutory origin.”

And so, on this interpretation, the Health Act simply wasn’t meant to empower a medical officer of health (like Ashley Bloomfield) to issue the sort of blanket notices that he did. In fact, he couldn’t issue public “notices” to quarantine or isolate at all; instead, all he may do is individually “require” those persons with (or reasonably suspected to have) COVID-19 to keep away from other people – as well as to stay in their residences until tested and/or treated for the disease in question.

What might the court decide to do?

I hope it is clear that there is a legitimate debate over the proper understanding of an over sixty-year-old piece of legislation that is written in a somewhat ambiguous way. To illustrate but one difficulty with doing so – when enacted in 1956, the powers conferred by s 70 could only be exercised by individual medical officers of health within their particular health districts.

As such, when conferring their power to isolate and quarantine, Parliament couldn’t have intended it to cover the entire country. What, then, does it mean when the Director General of Health was authorised to “exercise those functions [of a medical officer of health] in any part of New Zealand”? Anyone proclaiming with certainty that they know the “right answer” to such questions probably hasn’t thought about them enough.

And so, predicting what the High Court will eventually do is a mug’s game.

Possible outcomes

Assuming that we are in level 2 by the time it hears the case (invoke whatever primitive superstition you choose at this point), the High Court might try to duck the issue altogether by declaring it “moot”. In other words, as the Health Act notices establishing level 4 and 3 restrictions will have been revoked, they no longer affect the person seeking review and so there’s no longer a dispute for the court to resolve.

A second potential outcome is that the court agrees with the government’s interpretation of the Health Act and finds that the Director General of Health had the delegated power to issue the notices that he did. In which case, there is no question about their lawfulness (on these grounds, anyway), and the system has worked like it should.

Alternatively, the court may find that the government’s favoured interpretation of the Health Act was wrong, and that actually the Director General didn’t have the power to issue the notices (or, issue them in the way that he did). In which case, the Director General will have acted unlawfully.

If that’s the case there are several more possibilities.

It might do nothing – simply noting in its reasoning that the government’s preferred reading of the legislation is incorrect.

More likely, it might issue a declaration as to the orders’ unlawful status, formally noting this legal fact.

Or, it might go further and quash the notices, declaring them to be null-and-void and so all actions taken in relation to them of no effect. The chances of that last order, I suspect, are next to none.

The last option could open up the possibility of a lot of claims against the Government.

As Geddis says, it would be unfortunate if this is left undecided by the Court. While it may not be needed any more (for now) it could easily be needed again in the future, possibly the near future.

Leave a comment

28 Comments

  1. Alan Wilkinson

     /  11th May 2020

    The courts must indicate the limits to executive power over individual freedom and how that power can be checked.

    Reply
  2. NOEL

     /  11th May 2020

    For most Kiwis the actions seemed reasonable in light of the evidence given for lock down.
    I’ll admit like most didn’t bother to establish if it was legal at the time.
    Hindsight investigation don’t really change what happened.
    Or is there really a back to the future car?

    Reply
    • Fight4nz

       /  11th May 2020

      That’s about right.
      However, a review to learn and do better next time is essential. If this can only be done through the court processes then just hope it isn’t too time consuming. This is costing enough as it is.

      Reply
    • Pink David

       /  11th May 2020

      “For most Kiwis the actions seemed reasonable in light of the evidence given for lock down.”

      Where is this evidence?

      Reply
        • Pink David

           /  11th May 2020

          I can’t find a single source for evidence that the lockdown would either be effective, nor any which weighs the cost of the lockdown against the health impacts of wasting tens of billions of dollars and isolating people in their homes.

          There is well establish science on these things, yet there is not a single reference to it in any government evaluations of the lockdown.

          Reply
          • The problem is that there is no science or precedent to prove any measures will be effective.

            But there is evidence of possible harm and actual harm, and that doing nothing would be extremely risky – it would risk many lives.

            And it’s quite instructive that just about every country has taken fairly drastic action to varying degrees. They haven’t done that for no reason.

            Reply
            • Pink David

               /  11th May 2020

              “The problem is that there is no science or precedent to prove any measures will be effective.”

              Why was the entire justification of the lockdown ‘follow the science’ and ‘listen to the experts’?

              “But there is evidence of possible harm and actual harm, and that doing nothing would be extremely risky – it would risk many lives.”

              Where is doing nothing the only other option to a complete lockdown? Sweden has not ‘done nothing’, Japan has not ‘done nothing’, Australia has not ‘done nothing’.

              The harm was based on computer models that were BS and known to be BS. There only purpose is as propaganda.

              “And it’s quite instructive that just about every country has taken fairly drastic action to varying degrees.”

              Yes, instructive. Though, for reasons you have not considered. Just look at the media’s handling of Sweden. The reporting was universally damning for weeks. Lucky for the Swed’s the adults who are in government there are not swayed by that.

              “They haven’t done that for no reason.”

              It does not mean they are doing it for good reasons, nor for ‘science’.

            • “It does not mean they are doing it for good reasons”

              Do you think that no actions taken by any countries to deal with Covid have been for good reasons? Or that no good has been done?

          • Fight4nz

             /  11th May 2020

            PG, do you have an easy way to search out posts. Al posted maybe a week ago with a comment along the lines of ‘at last some data’. Then that he found the data piecemeal and inadequate. The thing he linked has several articles from Lancet, etc stating Lockdown was effective, so seems pertinent. Only if you have the time and inclination of course. Maybe Al can repost come to think of it.

            Reply
            • It wasn’t easy to search as Lancet wasn’t in Alan’s comment, but he linked to a post that had Lancet links. Is this it?

              https://yournz.org/2020/05/06/daily-covid-update-two-more-cases-and-one-more-death/#comment-415836

            • There’s no comment search available on Your NZ but there is a way you can search comments from google.

              Use keywords as usual, including the name of the commenter if needed, but add site:yournz.org

              Eg google: lancet site:yournz.org

            • Fight4nz

               /  11th May 2020

              Thanks, that’s the one. Noted Google, of course!
              https://threadreaderapp.com/thread/1257392347010215947.html
              Several have similar findings on Isolation, but this from The Lancet covers a few points:
              “This analysis shows that isolation and contact tracing reduce the time during which cases are infectious in the community, thereby reducing the R. The overall impact of isolation and contact tracing, however, is uncertain and highly dependent on the number of asymptomatic cases. Moreover, children are at a similar risk of infection to the general population, although less likely to have severe symptoms; hence they should be considered in analyses of transmission and control.”

              So isolating works. Ability to contain through testing is only going to be possible if asymptomatic cases found. Children are potential vectors.

            • Alan Wilkinson

               /  11th May 2020

              But it seems children have very low levels of virus presumably due to their efficient immune system response and therefore have a corresponding low likelihood of infecting others.

            • Pink David

               /  11th May 2020

              “So isolating works. Ability to contain through testing is only going to be possible if asymptomatic cases found. Children are potential vectors.”

              I wonder if you have actually read it. Transmission is the result of;

              ” High infection rates seen in household, friend & family gatherings, transport suggest that closed contacts in congregation is likely the key driver of productive transmission. Casual, short interactions are not the main driver of the epidemic though keep social distancing!”

              “While we have limited data, similar high risk transmission pattern could be seen in other crowded & connected indoor environments such as crowded office spaces, other workplace environment, packed restaurants/cafes, cramped apartment buildings etc.”

              Locking people into exactly the environment where the spread of Covid is guaranteed!

              “While the infectious inoculum required for infection is unknown, these studies indicate that close & prolonged contact is required for #COVID19 transmission. The risk is highest in enclosed environments; household, long-term care facilities and public transport.”

              How does this align with the policy? Restrictions of people being outside have been strict, in direct contradiction to this report! NZ, like most of the world, never did any population testing before the lockdown to determin how widespread Covid was. If there was any of it around prior to the lockdown, then confining people to home would increase the transmission, not reduce it. This does seem to have been a large factor in what has happened in NY and London.

        • Pink David

           /  11th May 2020

          There is some evidence of the harm in the Treasury docs, their best case was a fall in GDP of 13%. That would be around $26bn, more than NZ spends on health care in the whole year.

          How is that protecting life? Where is the discussion on the impact of this compared to Covid? Where is the evaluation? A GDP drop has a cost in increased mortality, where is the calculation on the lives it will cost?

          Has a QALY calculation been done? This is the process on which all health care spending is based. If not, why not?

          Reply
        • There’s no doubt the lockdown was fairly widely supported by the public.

          But I can’t find any more recent polls – the latest one linked was done 20-21 April.

          The public support has likely changed since then. It would be interesting to know by how much.

          Reply
        • Pink David

           /  11th May 2020

          “60 per cent of Stuff poll respondents want to stay in lockdown”

          In a free country these people can stay in their own lockdown. Why does this stop grown ups going about their lives?

          Why do these people get the right to force others to be locked down?

          Reply
          • Because of risks to others. There are a lot of restrictions on what anyone can do because of possible risks to others.

            We all need food, and that means we need to go to supermarkets. Shouldn’t we have a right to go to supermarkets safe from infection? We shouldn’t have our lives put at risk because others want the freedom to do as they please regardless of the safety of others.

            Reply
          • Gezza

             /  11th May 2020

            Why do these people get the right to force others to be locked down?

            They don’t; Ashley Bloomfield & Jacinda & that Civil Defence Head Honchora wotsername did.

            Reply
            • Gezza

               /  11th May 2020

              The rest of the 60 (it went up to 87, according to Stuff.co) % just follow the Coronavirus news here & overseas & think NZ’s government has done the right thing.

              This may be changing. A four week enforced stay at home holiday one thing, but bills & no esrnec income will be beginning to be felt is another. I think a growing number of people want the lockdown relaxed.

            • Gezza

               /  12th May 2020

              FiP!

              * esrnec = earned

  1. Borrowdale challenge to legality of lockdown | Your NZ

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