Borrowdale challenge to legality of lockdown

It is widely accepted, by parliamentary parties and the public, that the lockdown to prevent the spread of Covid-19 was necessary. The legality of the lockdown is more contentious.

The Government could have passed emergency laws to ensure the lockdown was legal, they would have had near unanimous support in Parliament for that. But the lockdown measures should have been legal, and it is important to find out whether proper legal processes were followed.

There have already been legal challenges to the lockdown. Because of the incompetence of the lockdown one was doomed to failure – see Court of Appeal rejects habeas corpus lockdown arguments but “questions needed answers” and Nottingham, McKinney named as habeas corpus lockdown litigants.

Nottingham and McKinney said they would try a judicial review as suggested as the appropriate legal approach by both the High Court and Court of Appeal, but they are unlikely to get much support, and going by their legal records they are unlikely to get much right.

Andrew Borrowdale, having a much stronger legal background, also challenged the lockdown via a judicial review – A better looking challenge of Covid lockdown legality.

Law professor Andrew Geddis summarisedthe arguments in support of and against the Government position on the legality of Covid-19 lockdown restrictions – More from Geddis on Covid lockdown legality.

Barry Soper has reported that Borrowdale’s judicial review is due to be heard in court ‘later next month (July), and there are some legal heavyweights getting involved – Legal groups join judicial review into police’s lockdown powers

Questions have been raised as to whether director-general of health Ashley Bloomfield had the legal authority under the Public Health Act to effectively shut the country down and to order people to stay at home unless they had good reason for being out.

Crown Law advice – leaked during the lockdown to Newstalk ZB – suggested Bloomfield did not have the required authority, which would throw into question all the arrests made during it.

The same advice was used by the former Deputy Police Commissioner Mike Clement to warn his district commanders about the thin ice they were on when it came to making orders in the name of Covid-19.

A judicial review that will consider the legality of the level 3 and 4 lockdowns has been given significant legal grunt.

The court last week heard from the Auckland District Law Council and the Criminal Bar Association, which wanted to become involved in the case.

A judge also wanted to give the Law Society the opportunity to become involved and gave them until today to declare its intention, which the society has now done, but their role as intervenor is neutral and independent of the parties to the case.

Law professor Andrew Geddis said the case “is very much a serious one in terms of raising issues that the legal world think are both genuinely uncertain and important.”

Geddis says Borrowdale was raising concerns in a proper fashion, unlike another private case taken by two men which failed, after they appealed the High Court finding.

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

Geddis said the intervention of the three legal bodies showed they were keen on the legality being properly tested in court.

He said if the judicial review finds the lockdown rules were legally invalid it would have implications for anyone charged with breaching the rules.

It is important that the legality of the lockdown is cleared up, for those who have been charged with breaching the rules, but also in case similar action needs to be taken in the future.

The initial actions were treated with urgency by the courts as we were still in lockdown when they were initiated, but now we are out of lockdown time can be taken to prepare properly for the case. Going to trial next month is still quite fast compared to normal court timing.

More from Barry Soper on this:  Legality of lockdown could come back to bite PM

It’s easy to say that who cares? The lock down had the desired result, we’re Covid free at the moment. That’s certainly the sentiment expressed, in much more vile terms, by the keyboard warriors when I ran stories last month about the legality of the lock down.

Of course all the warriors ignored the obvious dangers of a country being ruled by fear rather than the rule of law.

Borrowdale knows a lot about the law because he used to draft them at Parliament and he doesn’t have a nefarious agenda, he is simply uncomfortable like the rest of us should be that the most dramatic action taken against a population in a century may not have had the law behind it.

He also covers political ground but whether it affects public views will depend on the outcome of the court case. If the judgment is contentious any of the parties involved  could appeal so it could end up taking quite a while.

Borrowdale applied to bypass the High Court and to jump straight to the Court of Appeal to reduced the number of possible legal steps, but he failed with that : BORROWDALE v DIRECTOR-GENERAL OF HEALTH [2020] NZCA 156 [8 May 2020]

Mr Borrowdale has issued a proceeding for judicial review against the Director-General of Health in the High Court at Wellington. He alleges three lockdown orders made by the Director-General are ultra vires. That is, he says they exceed the powers vested in medical officers of health to make quarantine, isolation, non-association and closure orders under s 70 of the Health Act 1956. He alleges the orders are unlawful, ineffective and should be quashed by the High Court.

Mr Borrowdale applied for removal of the proceeding from the High Court and its transfer to this Court, under s 59 of the Senior Courts Act 2016.

I am not persuaded, in these circumstances, that the proceeding is unlikely to be determined urgently if heard first in the High Court. Mr Borrowdale’s submission as to his finite resources at least anticipates there may need to be one appeal (presumably from this Court to the Supreme Court). Any appeal inevitably raises the prospect of protraction and added cost.

But, as in Fitzgerald v Muldoon, what matters most is that a court of competent jurisdiction makes a fully considered decision on the evidence and the law. That decision will either invalidate or uphold the Director-General’s orders. If the former, the government then has two choices: appeal or seek assistance from the House. If the latter, Mr Borrowdale also has two, but rather different, choices.

The question this application begs is whether this Court should now limit the available judicial steps to two (Court of Appeal, and perhaps Supreme Court) rather than three (High Court, Court of Appeal and perhaps Supreme Court).

And behind that lies another question, which is whether we should thereby deny parties’ ordinary constitutional entitlement to a first appeal as of right (any appeal to the Supreme Court being by leave only). While leave might be anticipated, that is still a step this Court should be reluctant to take, especially where the issues are ones of such fundamental importance as these.

So it will inmitially be heard in the High Court in late July.

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7 Comments

  1. Duker

     /  12th June 2020

    The lockdown was legal , what they are challenging is ‘procedures’… They cant win on the law and are trying the paperwork issued by Crown Law at the time.
    As for Police not having the powers , its absurd . CONSTABLE is mentioned 14 times in the Health Act
    71A Power of constables to assist medical officer of health in relation to infectious diseases
    (1) A constable may do any thing reasonably necessary (including the use of force)—
    (a) to help a medical officer of health or any person authorised by a medical officer of health in the exercise or performance of powers or functions under section 70 or 71; or…..
    …..
    (4) A constable acting under subsection (1) may at any time do any or all of the following things:
    (a) enter into or on any land, building, aircraft, ship, or vehicle:[without a warrant!]
    (b) inspect any land, building, aircraft, ship, or vehicle, and any thing in or on it:
    (c) whether for the purposes of paragraph (a) or (b) (or both) or in the exercise of a power conferred by subsection (1),—
    (i) stop a ship or vehicle, or a taxiing aircraft;
    ….etc etc

    As it should be the police have to act under directions of Medical Officers and not any inherent powers ( which is the crux of many of the questions on legality) But since the Wellington office set up to handle all the issues coming out of quarantine is headed by the Former Police Commissioner with “instructions” from the DG of health acting as the Chief medical Officer for NZ the authority for “constables to act” is clear.
    There are similar provisions in State of Emergency about closing place or roads , stopping vehicles etc “by constables”

    http://www.legislation.govt.nz/act/public/1956/0065/latest/whole.html

    Reply
    • The court/s will decide whether the lockdown was done legally or not. It has not yet been determined. Some people claiming it was legal does not make it legal – I think it was David Parker made inaccurate (I think false) claims about timing of the lockdowns and the legal changes made.

      Reply
      • Duker

         /  12th June 2020

        No . Thats not what is at issue. Courts in NZ cant overide whats passed by Parliament and the actions taken by others under the legislation. This isnt US or Australia where they can and do makes laws passed invalid.
        Its Parliament who decides whats Legal or Not Legal. Just because IRD looses a court case on technicalities doesnt make ‘paying taxes to IRD illegal
        It as I said a procedural challenge, thats what Judicial Reviews do, not ‘decide legality’ Thats just headline writers version.

        As you pointed out previously , Barry Soper never even got to be classed as an ‘expert witness’ on leaks around parliament ( Peters v MSD etc). Yet his legal views here highlighted without reference to the wording of the Act – which is what I do , let the words in the Act speak for themselves

        Reply
        • “Its Parliament who decides whats Legal or Not Legal. ”

          No they don’t.

          Parliament writes and passes legislation . Then the court rules on what is legal or not based on the legislation. That is often based on legal interpretation by lawyers and judges, politicians don’t get any more say in that than any other citizen. If they don’t like a judgment they can pass new laws, but that doesn’t make something done illegally legal under the laws in force at the time.

          Reply
          • Duker

             /  12th June 2020

            Hello
            This is what Courts of NZ says on its website about application for Judicial Review…for general readers… not a word about ‘making it illegal’

            Judicial review
            In a judicial review proceeding a judge is asked to review the actions or decisions of a public or private administrative body (including the Executive branch of Government) to see whether they acted within the powers given to them by the law.
            If you bring a judicial review proceeding you are the applicant, and the administrative body whose actions are being reviewed is called the respondent.
            Only a person affected by a decision can apply for a judicial review. You can ask for a review of the process used to reach the decision, or because you think the decision-maker did not act within the law or the decision was unreasonable.
            If your application is successful the body that made the decision will be asked to reconsider their decision.

            RECONSIDER THEIR DECISION!

            this is a judicial review of procedural processes only. Borrowdale wasnt locked up prison like one woman was who arrived at airport and refused to have covid test via nose swabs and was taken to Auckland Womens Prison until she changed her mind.

            Borrowdale had to work from home…. the result wont change anything for him even if some procedural paperwork was flawed.
            Of course hes a publicity hound for his business, Butterworths Law textbook. Maybe he has a political angle I dont know , but wouldnt surprise me

            https://www.justice.govt.nz/courts/going-to-court/without-a-lawyer/representing-yourself-civil-high-court/starting-a-proceeding-in-the-high-court/

            Reply
    • Ray

       /  12th June 2020

      Duker is a High Court judge, who knew?
      And he is prepared to comment here and share his expertise .
      Who knew NZ had political appointees to the High Court as that seems his sole purpose or sole area of expertise.

      Reply
      • Duker

         /  12th June 2020

        Never said that …what I do is point out the text of the legislation which is normally written in plain english.
        What would you think if Constables is used 14 times in the health Act, the one used , amoung others for the nation wide quarantine…that the police are intended to enforce provisions of an outbreak of infectious disease ?

        Reply

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