Borrowdale v Director-General of Health

From the High Court:


ANDREW BORROWDALE V DIRECTOR-GENERAL OF HEALTH AND ATTORNEY-GENERAL

Summary

A Full Bench (three Judges) of the High Court has made a declaration that, for the 9 day period between 26 March and 3 April 2020, the Government’s requirement that New Zealanders stay at home and in their bubbles was justified, but unlawful. All other challenges to the Lockdown and the Government’s early COVID-19 response have failed.

Mr Borrowdale’s challenge

Mr Borrowdale’s challenge to the legality of the early lockdown took the form of judicial review proceedings brought against the Director-General of Health and the Attorney-General. He sought declarations of illegality in relation to three matters relating to the Government’s initial COVID-19 response. The first focused on the public announcements made by the Prime Minister and other officials during the first 9 days of the lockdown. The second challenge related to three orders made under the Health Act 1956 by the Director-General on 26 March (Order 1), 3 April (Order 2), and 27 April (Order 3). And the third challenge related to the definition of “essential services” contained in Order 1.

Because the issues raised by the challenges were of general public importance and concerned the operation of the rule of law and the administration of justice, the New Zealand Law Society was granted leave to intervene in the proceedings.

The public announcements

Order 1 was made at the beginning of the Level 4 Lockdown. It forbade congregating (except when social distancing was observed) and required the closure of non-essential businesses. But it did not require people to stay home and in their “bubble”. Those obligations were, instead, conveyed to the public through various public announcements made by the Prime Minister and other officials from 23 March onwards. Mr Borrowdale contended that these further restrictions were not “prescribed by law” and so unlawfully limited certain of New Zealanders’ rights and freedoms under the New Zealand Bill of Rights Act (NZBORA), including the rights to freedom of movement, assembly and association. He also contended that the announcements unlawfully suspended the law in breach of the Bill of Rights 1688 (BOR 1688).

The Court concluded that, reasonably interpreted, the statements conveyed that New Zealanders were required—backed by the threat of enforcement—to stay at home and in their “bubbles”when that was not, in fact, the legal position. So until Order 2 came into effect (on 3April) those restrictions were not prescribed by law and, accordingly, an unlawful limit on the relevant NZBORA rights and freedoms. But the Court rejected the contention that the requirements involved a “suspension” of laws contrary to s1 BOR 1688or that the statements were of the kind found to be unlawful in Fitzgerald v Muldoon. Although rights were limited by the requirements, the statements did not purport to “suspend” or stop the operation of any law. And by contrast with Fitzgerald, the Executive did in fact have the power to impose the restrictions, it merely omitted to exercise that power, until 3 April. After Order 2 came into effect on that day, the omission was corrected.

In deciding to make a formal declaration of illegality, the Court took into account the wider public health emergency context and the fact that the power to impose the restrictions existed. It concluded that although the state of emergency went some way to explain what had happened, it also made the Court’s oversight role particularly important. The precise terms of the declaration made are set out at the end of this Media Release. As well as declaring that the requirement to stay at home was not, for those first nine days, prescribed by law and so in breach of the NZBORA it also declares that the requirement was, otherwise, a necessary, reasonable, and proportionate response to the COVID-19 crisis at the time.

There was no specific evidence before the Court as to the potential impact of a finding of illegality on charges laid against individuals in the first nine days of Lockdown. The general evidence suggested, however, that there would be few, if any, prosecutions affected.

The legality of Orders 1—3

Orders 1—3 were made by the Director-General of Health under s 70(1) of the Health Act 1956. As noted, Order 1, made under s 70(1)(m), forbade congregations (except those with social distancing) and required the closure of non-essential businesses. Order 2, made under s70(1)(f), required all persons to be isolated or quarantined by remaining at home, with limited exceptions.

And Order 3, made under both s70(1)(f) and (m), replaced Orders 1and 2, and imposed largely the same restrictions but with further clarifications and exceptions.

Mr Borrowdale challenged the legality of Orders 1–3 on the grounds that they went beyond the “special” authorising powers in s70 and that they, too,unlawfully limited NZBORA rights.

Central to his challenge was the proper interpretation of s 70 itself. The Court began by considering context: the timeline of COVID-19’s spread, New Zealand’s international obligations to protect public health, and the nature and history of the s70 emergency powers. The Court concluded that all those matters reinforced the need for a purposive and liberal interpretative approach and the principle that the section is to be read as applying to circumstances as they arise. The Court also confirmed that the s 70 powers clearly contemplate the restriction of fundamental rights in a public health emergency and rejected Mr Borrowdale’s contention that their scope should be limited by reference to the NZBORA. Rather, the NZBORA is relevant to the exercise of the powers in the particular case and here, Mr Borrowdale had properly conceded that the limits on rights imposed by the three orders were justified in the circumstances.

The Court rejected Mr Borrowdale’s specific challenges to the Orders. It held that the Director-General was able to exercise the s70 powers, including the power to require isolation and quarantine, on a nationwide basis. He was also able to negatively define the premises to be closed, and to add a permissible exception to the ban on “congregation” in the form of social distancing. Orders 1–3 were therefore lawful, and authorised by either s70(1)(f) or (m).

Essential Services

Finally, Mr Borrowdale challenged the Director-General’s definition of “essential services” in Order1 as being an unlawful delegation of his s70 powers. That delegation was alleged to have occurred because—Mr Borrowdale said—Order 1 left the definition of “essential services” to the Ministry of Business, Innovation and Employment (MBIE), to be updated from time to time on the COVID-19 government website.

The Court reviewed the wording of Order 1 and the evidence about how MBIE determined what was and was not an essential service. The Court held that in Order 1 the Director-General broadly, but lawfully, defined essential services as: “businesses that are essential to the provision of the necessities of life and those businesses that support them”. That definition was at all times clear and fixed. The Court concluded that the function of MBIE and the website list was interpretive and advisory only. Only the Director-General could change the definition; MBIE’s job was to apply it. There was therefore no delegation and no breach of the rule of law.

Result

The Court made a declaration in the following terms:

By various public and widely publicised announcements made between 26 March and 3 April 2020 in response to the COVID-19 public health crisis, members of the executive branch of the New Zealand Government stated or implied that, for that nine-day period, subject to limited exceptions, all New Zealanders were required by law to stay at home and in their “bubbles” when there was no such requirement. Those announcements had the effect of limiting certain rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 including, in particular, the rights to freedom of movement, peaceful assembly and association. While there is no question that the requirement was a necessary, reasonable and proportionate response to the COVID-19 crisis at that time, the requirement was not prescribed by law and was therefore contrary to s 5 of the New Zealand Bill of Rights Act.

After Order 2 came into effect on 3 April 2020, the problem was corrected; the declaration has no bearing on subsequent or current restrictions.

The remainder of the challenges failed and the relevant claims were dismissed.

Full decision:

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51 Comments

  1. Corky

     /  19th August 2020

    So, what’s the use of having laws..or lack thereof. Government can just make shite up A repeat of the judgement regarding the photo ID driver license. And how did Crown Law get this wrong?

    Reply
    • Duker

       /  19th August 2020

      Muldoon and Brownlee, mentioned in decision, had made similar ‘announcements’ which were treated as ‘rules and regulations’ and were unlawful when the courts looked into it.
      Legislation should be passed to prevent judges using this way of reasoning again.

      Reply
      • I think not.

        No government should be above the law. That’s called dictatorship. The idea that that the government can pass laws to prevent judges being able to declare unlawful actions abhorrent, thus giving any government absolute power is abhorrent.

        Reply
        • Blazer

           /  19th August 2020

          Who makes the law?

          Reply
          • The government, but there are procedures that must be followed, starting with a bill being passed by the house.

            The government/PM/Director General of Health cannot simply say that they are going to do something that goes against the current law with no consultation with anyone or without going through the correct procedure. And the MoH certainly can’t.

            Look up the way that laws are made; I imagine that you will doubt my word as a matter of course.

            Reply
            • Blazer

               /  19th August 2020

              ‘The idea that that the government can pass laws to prevent judges being able to declare unlawful actions abhorrent, ‘

              The Govt can pass any law it wants.

              Why do you think Corporations spend so much on lobbyists?

            • Kimbo

               /  20th August 2020

              Why do you think Corporations spend so much on lobbyists?

              Classic projection by Blazer.

            • Kimbo

               /  20th August 2020

              …but feel free to counter with “classic denial by Kimbo”. 😀

              The problem with your analysis (I’m being kind), B, is that all types of groups and individuals, not just Corporations, petition, lobby and seek to persuade the government. Including unions, conservationists, peace activists, and all number of left wing groups. Which is their prerogative and good luck to ‘em. Is why Parliament is there.

              But I’m willing to accept that based on their rapacious money-gathering and PR antics, and the aggressive way they lobby the media and government, Greenpeace is one of those “Corporations” to which you refer. 😳😂

            • Fight4nz

               /  22nd August 2020

              “based on their rapacious money-gathering and PR antics, and the aggressive way they lobby the media and government, Greenpeace is one of those “Corporations””
              So out of the number left groups you list only Greenpeace is comparable to the “corporations” and their kind. Tobacco, alcohol, farming, fishing, business round table, chambers of commerce, EMA, business NZ, etc, etc, etc. Property Developers have pushed through whole swathes of changes to City Plans, zoning and shortly the RMA.
              I guess the real objection to Greenpeace is they occasionally manage to make a ripple against right wing interests which is horrifying.

            • Blazer

               /  22nd August 2020

              @Kimbo….the U.S is the proof that…’money talks’…=the Corporations have the money ,they instruct the Govt.

              In Socialist regimes the Govt tells the Corporations what to do.

            • Kimbo

               /  22nd August 2020

              I guess the real objection to Greenpeace is they occasionally manage to make a ripple against right wing interests which is horrifying

              And you guess…wrong.

              Indeed, even though I disagree with much of what Greenpeace do, including and especially when they break the law, I affirm their right to do what they do, including lobbying governments. And provide a different perspective and a cause for debate in the public and political spheres. Long may they continue!

              Lobbying governments is an essential right of our democracy that any person or group, no matter what their interest, be it social, religious, charitable, ideological, ecological, commercial or otherwise, can do so. And take their chances as to whether they are successful, ignored or ridiculed by both politicians and the public. Including tobacco, alcohol, farming, fishing, business round table (are they still a thing?!), chambers of commerce, EMA, business NZ, property developers…and Greenpeace.

              But I think your argument is with Blazer above, who implies lobbying is somehow corrupt, sinister and immoral when corporates do it too, with the further implied imperative that they should somehow be stopped. Hence his mention of “Corporates”alone, and your catalogue of alleged corporate evil without mention of the great social good that Corporates (which are ultimately just collections of people!) produce on occasion. Unless it happens to be a corporate – like Greenpeace – with which he (or you) agrees. Typical radical left hypocrisy, quasi-fascism, injustice and monastic denial of how the world in which they live earns its way.

            • Blazer

               /  22nd August 2020

              ‘Lobbying governments is an essential right of our democracy that any person or group, no matter what their interest, be it social, religious, charitable, ideological, ecological, commercial or otherwise, can do so. ‘

              Sure but when you have professional, full time lobbyists doling out political donations it kinda tilts the playing…field.

            • Kimbo

               /  22nd August 2020

              Never read George Orwell? Or observe which way people jumped at the Berlin Wall? Or have I missed the vast exodus of Koreans from South to North?

              Indeed, in socialist regimes the Govt tells the corporates what to do. And everyone else. And those who benefit are those at the top of the government. And the vast majority of the people get little or no say. Including exercising their democratic right as consumers to let the market (not a sinister amorphous entity, btw, but just the collective buying and purchasing decisions of people like you and me), not the Corporates or governments ultimately decide what is preferred.

            • Kimbo

               /  22nd August 2020

              Then if you disagree you will have to do what any special interest group has to do – lift your game, find a political champion who will represent your interests and try to get th m elected, or accept there is no grassroots popular support for your hobbyhorse and move on…instead of trying to enforce a far greater evil of curtailing the ancient and democratic rights of others to lobby.

            • Blazer

               /  22nd August 2020

              Big Brother is alive and well in western democracies.

              People migrate to where the grass is greener.

            • Kimbo

               /  22nd August 2020

              And yet here you are, posting your thoughts – and criticisms – of the existing order, including Corporates, without fear of repercussion.

              But yeah, to the extent that radical left wing ideology – which Orwell recognised for what it is in practice – still has a repackaged cult-following among some, there is always the risk of a genuine Stalinist Big Brother. But that’s ok, B, I prefer your ideas are rejected in the free marketplace of ideas, rather than censored.

              And why are those grasses greener compared to the socialist paradises from whence they fled, B? I’m guessing you’ll thumb through the socialist playbook and mention something about “richer on the backs of the exploited workers, former slaves and dispossessed indigenous peoples…” Yeah, that’d explain the massive disparities in wealth, quality of life, freedom and happiness between South and North Korea.

            • Blazer

               /  22nd August 2020

              I guess an Iraqui surveying the death and destruction all around him ,soon realised that being bombed back to the Stoneage because he was jealous of freedom and democracy in the West, figured out it was better to …join them!

            • Kimbo

               /  22nd August 2020

              So still avoiding the “North vs South Korea/which way do the people want to flee?” comparison? Wise choice, given your position, so yeah, better grab another distraction out of the radical left-talking bag of talking points

            • Fight4nz

               /  22nd August 2020

              By any reasonable measure North Korea is a fascist dictatorship, nothing left wing about it. Not sure why you think it or the other examples you raise are ringing endorsements for your views? Only suggests how flimsy that are.

            • Kimbo

               /  22nd August 2020

              Nope. That right there is the “No true Scotsman” fallacy. North Korea has the essential socialist tenets of state control of the means of production, distribution and exchange. As too did the USSR including under Lenin and Stalin, Mao’s China, and Pol Pot’s Kampuchea. And all f them were emphatic that they were…socialist.

              But yes, your insightful observation that socialist regimes look a lot like totalitarian fascism has been noted repeatedly by others. Now see if you can join the dots from there…

              But ok, even if we indulge your logical fallacy, what regime, past or present would you consider “socialism” so the appropriate comparison with it, and the US (and the rest of the West including NZ too where Blazer alleges “Big Brother is alive and well”) can be made? Cuba? Venezuela?

              Because that’s the point of my “flimsy ringing endorsement”. Forget the political theory and apply the common sense test: which way do people jump when there is a clear choice between socialism and the democratic alternatives?

          • Duker

             /  19th August 2020

            Government makes new laws all the time including amendmebnt acts which restrict loopholes created by judge’s decision. They don’t reverse the existing decisions just prevent future examples.
            Interesting in Western Australia they just passed a law , supported by pposition party, to prevent a mining billionaire from winning a long running case….and it’s all legal as Australian constitution doesn’t prevent retrospective laws. The politicians have won each time these sorts of things go to the High Court.
            So Australian states have no qualms about overturning court decisions either in Cuneen v ICAC in NSW recently which Cuneen won in the High Court.

            Reply
          • Blazer

             /  22nd August 2020

            ‘And why are those grasses greener ‘

            Because the GREENBACK is default currency for international trade.

            OPTION 2=make the economy…scream…..

            Reply
      • Alan Wilkinson

         /  20th August 2020

        If your last sentence means what is says we might as well dispense with the courts entirely and operate permanently via government dictat dictatorship ad we currently do.

        Reply
  2. Duker

     /  19th August 2020

    Weird result …that the PMs and other officials statements constitute ‘rules and regulations’ which are measured against the actual official regulations which are worded differently.

    I suppose they had to rule that way [and mentioned by the court decision today]after the Christchurch Red Zoners who received 50% of the land value only ( not the uninsured house) went all the the way to the Supreme Court who ruled that Gerry Brownless statements were in effect the regulations and these were werent correct under the special Earthquake Laws passed.
    https://duncancotterill.com/publications/quake-outcasts-rescued-by-court-decision
    the new government after 2017 had promised to reverse the decision before the final court result was published)

    Reply
  3. This is a meaningless comparison.

    It seemed that people didn’t want to pay insurance but did want the benefits of insurance.

    And it has nothing to do with the illegality of the lockdown/house arrest.

    Reply
    • whalerider3000

       /  19th August 2020

      It wasn’t house arrest. You could leave your home to exercise and shop.

      Reply
      • Don’t be so literal.

        Many people were calling it that, and for a lot of old people it was virtually house arrest, The PM ordered those over 70, regardless of their state of health and fitness, to ‘STAY HOME !!!’ This was after a woman of 70 drove to the supermarket (which had a seniors priority queue), did her shopping, drove home and was unwise enough to send messages to various people about how nice it was to be out of the house. Her neighbour, a nurse, threatened to slash the woman’s tyres if she saw her going out again. The PM talked about the 70 year old, ordered her and others to stay home as if they were naughty children, said nothing to condemn the threatening behaviour of the neighbour.

        Reply
    • Duker

       /  19th August 2020

      No it wasn’t meaningless…mentioned by judge’s in this case.
      The government took away their property value by red zoning it. They didn’t get value of house and that was uninsured, it was the land value , which even for empty sites you can’t insure. You have read the link to understand the details.
      But the precedent set by Supreme Court in the red zone case for what Brownlee said was used in this case.
      Should be legislated against to prevent judges using that precedent as it absurd. Press conferences aren’t laws or regulations and never should be

      Reply
  4. Jack

     /  19th August 2020

    “While there is no question that the requirement was a necessary, reasonable and proportionate response to the COVID-19 crisis at that time”
    Some medical experts suggested otherwise. What gives judges the right to make decisions according to one side of expertise re best response to Covid19?

    Did many small businesses shut down in vain? They felt obliged (coerced?) into obeying interpretive only directives. This is gutting for Kiwis. Those who complied could now feel unappreciated while the few who dared to continue on are vindicated for keeping up their lives.
    Much of it sounds like anything goes and nobody knows. This is what makes people feel vulnerable – a worse health scare than a virus.

    Reply
    • Duker

       /  19th August 2020

      The medical experts in NZ…Borrowdale dint provide rebuttal medical evidence. The legilation makes the director general of health THE medical experts in this instance and that answers your question ….not that you understand any reasoning

      Reply
    • duperez

       /  20th August 2020

      What should have happened? At the first hint Parliament should have sat and passed legislation to cover all eventualities?

      Could you imagine anyone, anywhere, like on these boards, then going on about totalitarian dictatorships? Could you imagine the opposition parties being stoked along by support in public forums and other social media against any lockdown and restriction? Could you imagine David Seymour being hailed as the great white knight who fought for personal freedom calling ‘let people exercise their freedom of choice’?

      Reply
      • Alan Wilkinson

         /  20th August 2020

        When did we vote to live in a country where public health officials have unlimited power?

        Reply
        • duperez

           /  20th August 2020

          We didn’t and we don’t.

          Reply
          • Alan Wilkinson

             /  20th August 2020

            Actually we do. The courts have said the Bill of Rights doesn’t apply once the bureaucrat has made his declaration and his powers are essentially unlimited so long as he can claim them necessary.

            Reply
            • Tom Hunter

               /  20th August 2020

              Not the first time our Health authorities have revealed our Bill of Rights as being a joke.

  5. Jack

     /  19th August 2020

    Many personal stories to that effect and the vigilantes bordering on violence were praised. It makes individuals feel isolated from the so called team. This is why I bandy around the word ‘cult’ – I want it to lose its sting. That term “Team of five million” is a cult phrase where we’re brainwashed into accepting that we’re all so tolerant we don’t need honest application of law and where logic is outdated.

    Reply
    • Duker

       /  19th August 2020

      Remember the rock star PM? Who was that about. What about The Crusher? Who was that Treadeau mania dates back to the 80s…it’s nothing but hype of which politicians and pop stars have plenty.
      You should just get out more

      Reply
      • Jack

         /  20th August 2020

        Above there you went nuts about Kitty correctly expressing on a reported story.
        You just have the world on your shoulders that’s all.
        Get out today for some exercise.
        Run around with some lively kids. Don’t look to Jacinda for finding reality. She’s not too great at understanding where angry people come from.
        Please Duker, if you won’t listen to the children, listen to me. You must take care of yourself. Trust me and do as I say.

        Reply
        • Blazer

           /  20th August 2020

          ‘Trust me and do as I say.’

          guffaw,snigger.

          Reply
        • Duker

           /  20th August 2020

          Another day for you Jack to go out and turn all the magazine covers again…
          I would hardly think of Ardern at all if it wasnt for you and that fake bubble maker having all your nonsense here. NZ politics isnt even my first interest, my computer screen has dozens of far more interesting things for me to follow

          Reply
          • Gerrit

             /  20th August 2020

            And yet here you are day in day out, hour after hour commenting. Statically it would be interesting on who contributes the most comments. Between you and Blazer, around 50% of all comments?

            Reply
            • Duker

               /  20th August 2020

              Half an hour here and there.
              Ive spent more time this afternoon on Australian non political sites and the rest at a computer retailer looking into bare bones Pcs, and checking up the product keys on my MS office Professional Plus versions.
              When I check my history only a tiny number of times at yournz…Im just used to working rapidly, plus I have my bookmarks for saved items of interest to refer back to and google comes up with others in seconds.

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