Borrowdale judicial review – day 1

The judicial review into the legality of the Covid lockdown started yesterday in the High Court.

Preview: Borrowdale judicial review of level 4 lockdown legality beginning

RNZ – Legality of lockdown case: ‘government, like every person, is ruled by the law’

On 23 March, Prime Minister Jacinda Ardern emerged from a Cabinet meeting to deliver a historic message.

She said the country had to go into lockdown; most businesses must close and people had to stay home. All events were banned and people had to follow strict physical distancing rules.

Borrowdale’s lawyer Tiho Mijatov today told the court that in doing so the government went further than the Director-General of Health’s order – the legal basis for the new rules – actually allowed.

He said the government could make not rules by decree and must follow the law.

“The common-sense notion that the ends don’t justify the means, or in this case the emergency doesn’t create the power.

“[The] emergency does not increase granted power or remove or diminish the restrictions imposed upon that power.”

He said the government was clearly telling people what they could, and could not, do and it was reasonable for the public to assume that these orders were backed by the law.

“It’s unmistakable that the prime minister was telling all people in New Zealand what they had to do.

“She tells the nation ‘we will do the enforcing and there will be no tolerance for anyone who doesn’t do what they are asked’.”

Mijatov said his client Borrowdale was not challenging the wisdom of putting the country into lockdown, but that it was unlawful to do so.

He said fundamental to his case was that the government was bound by the law, no matter how urgent and issue might be.

Acting for the Crown, Victoria Casey told the court as the pandemic ramped up the government and officials realised they needed to act swiftly.

She said the actions taken were lawful.

“They relied on available powers under the Health Act and the Civil Defence Emergency Management Act to deal with an extraordinary problem.

“The evidence shows that the decision-makers used those powers responsibly and proportionally and that they understood that voluntary cooperation would be vastly more significant than coercion.”

She said the powers Mijatov claimed were the sole basis of the lockdown orders were actually just one part of a vast suite of rules laws that allowed the government to do what it did.

“They were never designed to deliver the whole package of what the lockdown was,” Casey said.

“Alert level 4 and the lockdown measures were a combination of a number of key pillars that acted together.”

The Law Society will also make submissions on this.

The case has two days to go.

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1 Comment

  1. Duker

     /  28th July 2020

    As I thought might happen they are making it political by raising irrelevant issues like ‘what the PM said’The court can only consider the regulations promulgated by the DG under the health Act
    The PM can say whatever she likes, but they arent regulations to be reviewed by the Judges., nor could PR spin ever be justiciable – being able to be settled by legal methods

    and this Borrowdale was supposed to be highly qualified , the submissions by his lawyer on Arderns spin arent much better than by dumb and dumber


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