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:

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.

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.

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.

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.

Borrowdale application to transfer judicial review to Court of Appeal declined

Andrew Borrowdale had issued a proceeding for a judicial review the Director-General of Health over Covid-19 lockdown restrictions in the High Court at Wellington.

He then applied to have the proceeding transferred to the Court of Appeal to try to speed up the process, anticipating the likelihood the Crown would appeal if ruled against. But this transfer application has been declined by the High Court, who say that the matter is best dealt with in the first instant by a trial court rather than an appeal court.

Borrowdale is appearing in person (not represented by another lawyer).

The Court of Appeal judgment gives some details about the judicial review.

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

The three orders challenged (andthe basis of challenge in each case) are as follows.

First, there is the initial “Level 4”non-association and closure order of 25 March 2020, made purportedly pursuant to s 70(1)(m)of the Health Act. This required premises in all districts of New Zealand to be closed, other than certain essential businesses defined in an appendix. Mr Borrowdale alleges the order exceeded the power within s70(1)(m)(i) of the Health Act enabling closure of “all premises within the district … of any stated kind or description” by failing to refer to premises of a stated kind or description,and in purporting to define premises negatively by reference to all premises (other than those essential). Mr Borrowdale makes a related argument in relation to the prohibition on congregation inoutdoor places of amusement or recreation. He further alleges that the order’s definition of “essential businesses” amounted to an unlawful delegation to unnamed officials to decide which premises should be closed, and that the definition of “congregate” purports to vary the primary legislation

Secondly, Mr Borrowdale challenges the further “Level 4” isolation and quarantine order of 3 April 2020,made purportedly pursuant to s 70(1)(f)of the Health Act. This required all persons in all districts of New Zealand to be isolated or quarantined by remaining at their current place of residence, other than for certain “essential personal movement”. Mr Borrowdale alleges th eorder is ultra vires s70(1)(f)because that provision does not empower orders of a general nature. Rather,he says it only empowers a medical officer of health to require particular individuals to be isolated, quarantined or disinfected.Mr Borrowdale further alleges that the Director-General exceeded his powers by purporting to act nationally in exercising the functions of medical officers of health in their health districts, without considering the needs of each health district separately.

Thirdly, Mr Borrowdale challenges the “Level 3” orderof24 April 2020,made purportedly pursuant to s 70(1)(f) and (m)of the Health Act.1He says the third orderis ultra vires for the same reasons as the second order.

But level 4 is past (hopefully for good) so is sort of irrelevant now.

It should be noted that thefirst and second orders were revoked by the thirdorder and are no longer in force. Any urgency therefore relates to the operative effect of the third (“Level 3”) order only.

And that needs to be heard urgently if it is to be dealt with before the middle of next week, when we may be dropping to Level 2.

The law may be changed for Level 2 anyway – see Covid-19 response: New legal framework as move to Alert Level 2 considered

Mr Borrowdale relies on s 59(3)(b). He submits that this proceeding raises issues of considerable public importance. The orders affect the whole population in a variety of ways, “by confining virtually the whole of the population of New Zealand to their homes and requiring businesses to close”.

Mr Borrowdale submits the orders continue in force and are likely to be replaced by similar orders using the same powers under scrutiny in the proceeding. Potentially these the orders may be spent by the time his application has run its full course through both the High Court and Court of Appeal. He submits that he is unlikely to have resources sufficient to take a protracted proceeding through potentially three levels of court,with cumulative exposure to costs.

He submits, “[t]here is a real possibility that, if the matter proceeds in the High Court without removal, it may not reach the Court of Appeal at all.”

For the Director-General, Ms Casey QC and Mr Powell oppose removal and transfer to this Court. They submit that it is of critical importance that the resolution of this proceeding be progressed in a manner that allows for a fully informed and considered determination of the issues before the Court.

They submit that urgencyshould not displace the respondent’s right to properly prepare his defence and to be heard fairly, nor the public interest in achieving an appropriate outcome,both in terms of the legality of the orders and the remedies sought by the applicant.

I accept that Mr Borrowdale’s proceeding raises issues of considerable public importance. I accept also that those issues need to be determined with urgency. I am not however persuaded that the proceeding is unlikely to be determined urgently if it is heard at first instance in the High Court. And nor am I persuaded that the better course is that the proceeding be heard at first instance in this Court.

I accept that Mr Borrowdale’s proceeding raises issues of considerable public importance. I accept also that those issues need to be determined with urgency. I am not however persuaded that the proceeding is unlikely to be determined urgently if it is heard at first instance in the High Court. And nor am I persuaded that the better course is that the proceeding be heard at first instance in this Court.

As this Court observed last week during the hearing of the habeas corpus applications in A v Ardern, questions raised concerning legality of theDirector-General’s various lockdown orders are complex.3They are not merely questions of statutory interpretation, or law, but mixed questions of law and fact. It may be assumed the Crown may need to call evidence of process,contexta nd history. It is not inconceivable there will need to be cross-examination. These are forensic processes far more amenable to resolution in a trial court. It would not be right for this Court to make orders now which limit the parties’ reasonable freedom of action in both proving and defending this proceeding.The burden of the mandatory considerations in s 59(4) lies firmly against removal and transfer

While the restrictions under lockdown are considerable and affect everyone in New Zealand, a quick process that ruled lockdown restrictions illegal would also potentially have a big effect on many people. It could have a life or death effect.

I am not persuaded,in these circumstances, that the proceeding is unlikely to be determined urgently if heard first in the High Court.

The question this application begs is whether this Court should now limit theavailable 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 s59 of the Senior Courts Act 2016, is declined.

There is likely to only be time and need for this matter to be heard once anyway due to law changes indicated by the Government for the near future. If the Government loses then they are more likely to get the law right (to suit their purposes) rather than appeal the decision.

Click to access CA2392020.pdf

 

More from Claudia Geiringer on lockdown legality and the judicial review

Following the filing of a legal challenge to Covid lockdown restrictions by Andrew Borrowdale via a judicial review – see   A better looking challenge of Covid lockdown legality – law professor Claudia Geiringer responds:

RNZ:  Was Covid-19 lockdown legal? Professor Claudia Geiringer explains

“I’m in the camp that thinks the Ardern Cabinet are doing a magnificent job overall in managing an incredibly complicated regulatory challenge, but the problem is that they’ve inherited a legal framework for managing a public health crisis that in the view of a number of experts hasn’t turned out to be sufficiently nimble,” constitutional and parliamentary law expert Professor Claudia Geiringer told Checkpoint.

“The argument centres on these powers in the Health Act, which are at the heart of how the lockdown has been enforced.

“The key argument is that these powers are ‘ultra vires’, which means they go beyond their legal power, they go further than the law actually allows.

“The key argument relates to … a couple of orders that Ashley Bloomfield has made requiring us all to stay home, and the orders claim authority from a clause in the Health Act that says that in an epidemic a medical officer of health can require persons to be isolated, quarantined or disinfected.

“So the Director-General said, ‘the law says I can put people in isolation or quarantine, so I’m putting all of you – the whole country – into quarantine, isolation.’ And the argument is that it’s not clear the statute actually contemplates a direction to the community at large, as opposed to a medical officer quarantining, say, a particular infected individual”.

“It looks like some of the powers that have been relied on really may be more focused on making a requirement in relation to named individuals. And just to be clear, that’s not a slam dunk. There’s room for different views on this, and it may or may not succeed in court.”

So the judicial review may or may not succeed (obviously), but at least it will cover more of the legal arguments.

It matters for two reasons, Prof Geiringer said.

“The first is that these are some of the most extensive coercive powers ever to be exercised in this country’s history. Personally, I’m comfortable that they’re being exercised for good reason. But in a democracy when the state’s exercising coercive power, we want those powers to be authorised by our elected Parliament, and we want them to be authorised in the clearest possible terms, so that we can all know our rights and responsibilities.

“One other reason I think this really matters is that I think underlying this challenge there’s a significant underlying problem with the current law, which is that the power is located in the wrong place.

“Cabinet’s instinct throughout this period has been that important decisions about the timing and scope of the lockdown need to be made by them. And that’s got to be right hasn’t it – that these decisions are far too significant and multifaceted to be reposed in a medical officer of health, but that’s what the law currently does.

“In fact, if the Director-General has placed undue weight on Cabinet’s views in making these orders, that could actually give rise to an additional ground of legal challenge, because the statute doesn’t actually give any power to Cabinet.

“Cabinet has the power to put us into a State of Emergency … the minister does … and also to trigger the Epidemic Preparedness Act. But once they’ve done that, the specific coercive powers on which the police have primarily relied … all of that detail, it’s not actually for Cabinet, it’s for the Director-General of Health.

“Probably the Director-General of Health is entitled to take Cabinet’s views into account. But there’s at least an argument that he cannot be unduly influenced by them, because the decision in the statute is conferred on him”.

And that’s a key issue, whether one unelected public servant should be given so much power that can result in such a large effect on people and businesses. A health official will likely lean towards health considerations more than social and business considerations.

“I think there’s a very strong argument that some of the orders are ‘ultra vires’ … illegal [in laypeople’s terms] but the law in New Zealand in the end is what the courts say the law is.

“And you can expect that a judge faced with this complaint at this particular moment, might give the government an awful lot of leeway. So I’m not particularly keen on predicting what a court might do here.

“But what I would say is that I don’t think it’s satisfactory for us as a community to have such significant coercive powers based on such slight legal authority. I think we need a legal regime that better reflects what the government is trying to achieve.

“None of the arguments in this particular legal case that’s been brought are that the law couldn’t or shouldn’t provide that authority. The argument is that it doesn’t.

“So Parliament could meet tomorrow and shore up the legal powers. But the argument is that at the moment the powers that are being exercised are not there.”

The judicial review should at least start the process of checking whether laws have been followed correctly or not, and whether current laws are appropriate (like giving a public servant so much power beyond Government influence.

The Court of Appeal referenced a previous discussion be Geiringer (and Andrew Geddis) when it said:

As has been noted by the Regulations Review Committee  regarding notices issued under s 70 of the Health Act 1956 (20 April 2020) – and two of New Zealand’s leading public law academics, there are unresolved questions about the lawfulness of the notices issued under s 70 of the Health Act.

See:

 

A better looking challenge of Covid lockdown legality

Andrew Borrowdale has filed for a judicial review of the Director-General of Health’s powers behind the Covid-19 lockdown restrictions on Tuesday.

He is reported as someone “who has worked on drafting laws for the Government at the Parliamentary Counsel Office” but is also the author of books on commercial law and The Spinoff refers to him as “top lawyer and former parliamentary counsel”.

If successful it may make little difference for most of us, especially if we move to a Level 2 lockdown next week, but it should ensure decent scrutiny of the laws used to lock us down. And there is a possibility damages from those arrested under the lockdown law and businesses forced to close down could become an issue.,

Two associates challenged what they claimed was detention under the lockdown in the High Court but the judge dismissed that, saying the men weren’t held in detention and agreeing with counsel for the respondents (Jacinda Ardern, Ashley Bloomfield and Sarah Stuart-Black) that a habeas corpus writ was the wrong approach:

I accept the respondents have established any detention effected by the order is lawful (for reasons given). I am also satisfied the arguments A relies on are not suitable for determination on an application for a writ of habeas corpus. In fact, s 14(1A) of the Act permits the Court to refuse an application for the issue of the writ if satisfied the application is not the appropriate procedure for considering an applicant’s allegations. This is such a case.

The appropriate procedure is an application for judicial review.

See A v Ardern [2020] NZHC 796 (23 April 2020)and B v Ardern [2020] NZHC 814 (24 April 2020).

Despite this guidance A and B appealed, but the Court of Appeal confirmed that ruling – Court of Appeal rejects habeas corpus lockdown arguments but “questions needed answers”:

Even if A and B are detained we would, if it were necessary to do so, decline to issue a writ of habeas corpus without requiring the Crown to justify the legality of their detention because habeas corpus is not the appropriate procedure for considering their allegations.

An expedited application for judicial review seeking declarations in the High Court is the only appropriate procedure in the circumstances of this case.

The judgment also noted:

As has been noted by the Regulations Review Committee  regarding notices issued under s 70 of the Health Act 1956 (20 April 2020) – and two of New Zealand’s leading public law academics, there are unresolved questions about the lawfulness of the notices issued under s 70 of the Health Act.

References:

There has been one successful challenge via judicial review, but this was on very narrow grounds challenging the Ministry of health refusing an exemption from quarantine – see Court rules man under Covid quarantine can visit dying fatherJudgment here.

The new action: Legal challenge over coronavirus lockdown

Borrowdale told Stuff that the “bringing the application is not in any way intended to impugn Dr Bloomfield personally or to decry his admirable work”.

He’s asked for a court to declare that some of the powers triggering the lockdown were outside the law, and for the court to order those actions be quashed.

The main issue at stake is whether Bloomfield used powers that were in excess of the ones given to him by the Health Act.

Bloomfield used section 70 of the Health Act to issue notices, which set out some of the rules that we know as the level 4 lockdown.

Borrowdale alleges that the notices overstep the powers that are given to Bloomfield by the Health Act.

A Ministry of Health spokesperson said “The Ministry is satisfied that the section 70 powers have been exercised lawfully.

“It would be inappropriate for the Ministry to comment further where the matter is before the courts”.

Otago law professor Andrew Geddis said the case was asking the High Court to make a “determinative ruling on whether the Health Act gave the director-general the power to issue the notices that it did”.

Geddis said police had then arrested and charged people with breaching the order.

“If the health act didn’t give the director-general that power, then all of those people who have been charged with those offences shouldn’t have been,” he said.

Those people could potentially claim damages under the Bill of Rights.

So a successful review could have significant repercussions.

Bloomfield’s notices also forced all business to close, with rare exceptions. But Borrowdale claimed the powers in the Health Act don’t allow Bloomfield to carte blanche close businesses and public spaces.

He argued that while the Act allows the director-general to close all premises of “any stated kind or description,” Bloomfield exceeded this, closing everything down without specifying the specific kinds of premises like the Act requires.

Working out which businesses could be deemed “essential” was delegated to MBIE officials, which Borrowdale argued was also an overstep, as the Health Act doesn’t give those officials the right to decide which business may open or stay shut.

The choosing of which businesses had to close has been very contentious, and if there is a successful challenge too this there could potentially be some large claims of damages.

He made the same point about the order that forbids people from congregating in outdoor places. The order says all such gatherings are banned, but the Health Act, Borrowdale claims, would require Bloomfield to actually state the kinds of gatherings that are banned.

I don’t see that damages would be possible to claim here but unless the law is rectified this could make ongoing lockdown restrictions outside the law.

The other issue at play is whether the Health Act actually gives the director-general the power to confine all New Zealanders to their homes.

Borrowdale argued that it actually should be read as meaning that only certain people can be quarantined and placed in isolation.

He says that the Act doesn’t allow Bloomfield to act for the entire country at once, but rather it forces him to look at the needs of each health district separately.

If Borrowdale is correct it would involve a lot more work for the Director general of Health in defining what can be restricted and locked down, unless the Government gets a quick law change through to make wide or blanket restrictions legal.

As with the other legal challenges I expect this one will be heard urgently, but here is no indication yet when that will be.

This action looks far better considered and targeted than the writ by A and B, which included an attempt at a political attack, and should add to clarification of the laws around lockdowns.