Borrowdale judicial review of level 4 lockdown legality beginning

During the Covid level 4 lockdown Andrew Borrowdale initiated a judicial review, challenging the legality of the lockdown. This review will begin in the High Court in Wellington today.

Preliminary rulings:

BORROWDALE v DIRECTOR-GENERAL OF HEALTH [2020] NZCA 156 [8 May 2020]

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.

The application for transfer of the proceeding to the Court of Appeal, under s 59 of the Senior Courts Act 2016, is declined.

BORROWDALE v DIRECTOR-GENERAL OF HEALTH [2020] NZHC 1379 [18 June 2020]

The Auckland District Law Society Inc (ADLS), Criminal Bar Association of New Zealand Inc (CBA) and the New Zealand Law Society/Te Kāhui Ture o Aotearoa (NZLS) have applied for leave to intervene in Mr Borrowdale’s application for judicial review.

While the Court appreciates the steps taken by the ADLS, particularly its role in initiating a consideration of whether there should be intervention by a law society in this case, there is no need for intervention from both the NZLS and the ADLS. The NZLS has over three times the membership of the ADLS and, given its membership comprises 98 per cent of those with practising certificates, its membership clearly incorporates a large number of members of the ADLS. There would inevitably be overlap were both the NZLS and the ADLS given leave to intervene, thus lengthening the hearing and increasing the costs. Given the wide expertise on which the NZLS can draw, the Court can be satisfied that it will comprehensively address the issues.

The NZLS is granted leave to intervene on the conditions set out above.

The applications by the ADLS/CBA for leave to intervene are declined

The High Court has published a case synopsis:


Background

Mr Borrowdale has brought judicial review proceedings challenging the legality of restrictions imposed by the New Zealand Government on the public in response to the COVID-19 pandemic. Thefirstrespondent is the Director-General of Health and the second respondent is the Attorney-General. The Court has granted leave for the New Zealand Law Society to be represented as intervener, a disinterested party whose role is to assist the court.

The nature of the hearing

The role of the Court in judicial review proceedings is of a supervisory nature. It is concerned with ensuring powers are exercised in accordance with the law. In undertaking this important constitutional function, the Court does not engage in nor provide answers to political, social or economic questions. It is concerned only with assessing whether powers were exercised lawfully.

One judge usually presides over High Court proceedings. However, there is provision for the High Court to sit as a full Court (2 or 3 judges) in cases of particular significance, such as this one. Three judges will preside over this case, including the Chief High Court Judge Justice Thomas.

Grounds of review

There are three grounds of review.

The first is in the context of the New Zealand Bill of Rights Act 1990 (NZBORA) and the Bill of Rights 1688, an Act which establishes the principle that no law can be suspended without the consent of Parliament.

This ground of review concerns the announcements made by the Prime Minister and others in Government from Monday 23 March 2020. Mr Borrowdale claims these announcements gave directions requiring, as from 11:59 pm on 25March, people to confine themselves to their homes for all non-essential purposes, all non-essential businesses to close and public congregations, indoor and outdoor events to cease. Mr Borrowdale’s case is that these directions were unlawful because they were not imposed by law and they limited the public’s rights affirmed in the NZBORA.

Additionally, Mr Borrowdale claims the restrictions appeared to suspend the law, and were accordingly illegal under the Bill of Rights 1688.

The second ground of review concerns the powers of the Director-General of Health to make orders pursuant to s 70(1)(m) and (f) of the Health Act 1956. Mr Borrowdale claims that the Director-General of Health did not have the power to close all businesses generally and confine the entire population of New Zealand to their places of residence.

The third ground of review relates to the legality of the claimed delegation to the Ministry of Business, Innovation and Employment in administering a scheme for determining what was an essential service during the period New Zealand was placed under Alert Levels 3 and Mr Borrowdale claims the delegation was unlawful for lack of compliance with section 41 of the State Sector Act 1988.

Hearing details

The case is set down for three days in the Wellington High Court, commencing Monday 27 July 2020.


There was a separate challenge to the lockdown legality. Two serial litigants with a long list of failures, Dermot Nottingham and Robert McKinney, tried via a writ of habeas corpus to but failed in both the Hight Court and the Court of Appeal – see Nottingham, McKinney named as habeas corpus lockdown litigants

Nottingham also failed in an agttempt to recall the High Court judgment – see Another double failure in Nottingham v Ardern

In contrast Andrew Borrowdale has extensive credible legal experience, including writing legal text books, and he worked formore than ten years in the Parliamentary Counsel office which drafts the government’s bills and legislation. And he has law qualifications.

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16 Comments

  1. Alan Wilkinson

     /  27th July 2020

    There is a risk the case will be judged by the perceived success of the lockdown rather than its legality, especially by a “progressive” judiciary.

    Reply
    • Duker

       /  27th July 2020

      The provisions were covered by existing legislation…we been over the provisions many times, the power to quarantine has been around 100 years or so, including in 1918.
      His case seems to be built on whether the quarantining by district can be done for all districts.
      I have a feeling that is such a narrow ground to argue on and the results worked for NZ and judges wont see it his way.
      I dont know exactly what the other grounds mean

      Yes Borrowdale has worked as a barrister and for the Parliament legal draughting office , but his business now , Butterworths legal text books, and probably always worked in the commercial law area.
      As is often the case , there can be a conflict over the facts ( the quarantine worked and was in the legislation) and the legal precedents that ran before, if any that mean you have to see it in a certain way. Places like Appeal courts can over rule previous precedents ( as Kim Dotcom found out when he had an open and shut case based on a previous case of someone charged with with the same crimes wasnt extradited to US)

      Reply
    • Blazer

       /  27th July 2020

      What outcome would you like to see Al?

      Reply
      • Alan Wilkinson

         /  27th July 2020

        A good analysis of the law and the balance between freedom and safety, particularly the limits of Parliamentary and bureaucratic restraints on freedom of movement.

        Reply
        • Blazer

           /  27th July 2020

          Would you be in favour of ‘freedom of movement’ for farmers live stock too?

          Reply
          • Alan Wilkinson

             /  27th July 2020

            ??

            Reply
            • Blazer

               /  27th July 2020

              Well if a farmer in Southland wants to move/sell some stock to a farmer in Northland ,should he be restricted from doing so,just because some bureaucrats suggest it may lead to a spread of an infectious disease like say…MBovis.

            • Alan Wilkinson

               /  27th July 2020

              The bureaucrat should have to meet a reasonable standard of proof of significant and unavoidable danger.

            • Alan Wilkinson

               /  27th July 2020

              .. and be subject to judicial oversight and review.

        • Duker

           /  27th July 2020

          “particularly the limits of Parliamentary and bureaucratic restraints on freedom of movement.”

          You havent read a bit of it so far. The Judges cant supercede what parliament has made legal. The courts in a judicial review only decided of the ‘regulations’follow’ the words of the law , simply put.
          We had a much more recent case that went all the way to the Supreme court and Arthur Taylor won every step of the way regarding prisoners votes being allowed by the Bill of Rights.
          Nothing changed with the court decisions, the national party government had passed a law taking away voting for sentenced prisoners and that was that . It required further law change to restore limited voting.

          Reply
  2. NOEL

     /  27th July 2020

    “perceived success of the lockdown”
    Yah joking?

    Reply
    • Alan Wilkinson

       /  27th July 2020

      Nope. Think about why.

      Reply
      • NOEL

         /  27th July 2020

        “What is Borrowdale saying?

        Well, he has conceded, for the purpose of the case at least, that the Government’s pandemic response was justified in a free and democratic society.

        He says freedoms affirmed in the Bill of Rights were unlawfully limited, and it appeared even the law itself was suspended.

        It is alleged that the Director General of Health did not have the power to tell businesses to close and the entire population to stay home except for essential purposes.

        The final part of Borrowdale’s case was that the power to decide what was an essential service, and so able to continue operating, should not have been delegated to the Ministry of Business, Innovation, and Employment.

        The Crown is opposing his claims.”

        Reply
  3. Duker

     /  27th July 2020

    So far Borrowdales lawyer seems to be on a political high horse ‘over what the PM said’.
    That has no bearing on the legal nuances, as of course she can say what she likes as part of the Covid PR.
    I dont know anything about Borrowdale and his motives but initially I suspected it was orchestrated by ACT types for political reasons. If his instructions to his lawyer to bring Arderns comments into the case shows the political posturing I suspected is underway.

    Reply
    • If someone is ASKED to do something, that need not mean that they are OBLIGED to do it.

      I would argue that this was a request, not an order, and that enforcing it as if it was an order could well have been unlawful.

      Reply
    • Alan Wilkinson

       /  27th July 2020

      The Law Society has submitted that the initial orders were illegal. Seems to be some consensus about that.

      Reply

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