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:

 

Is New Zealand’s COVID-19 lockdown lawful?

University of Otago Law Professor Andrew Geddis and Victoria University Law Professor Claudia Geiringer via the UK Constitutional Law Association website:  Is New Zealand’s COVID-19 lockdown lawful?

The New Zealand Government’s “go hard, go early” response to the COVID-19 pandemic has garnered widespread praise – both in New Zealand and internationally. On March 25, less than four weeks after New Zealand’s first COVID case was diagnosed, the country was put into a state of “Level 4 Lockdown”, reducing social and economic life to a bare minimum. Everyone was instructed to stay at home, except for limited “essential” purposes (in short, supermarket shopping, essential medical treatment, and brief localised exercise such as a walk or a run). All businesses were closed, except for those providing “essential” services. Physical proximity to those not in a person’s residential “bubble” was prohibited.

These measures undoubtedly have been effective, with the country now on a path to eliminate the virus. For that reason, it is perhaps not surprising that discussion of their legal status has been muted.

I’ve seen some questions raised over the last few weeks, for example:

Dr Dean Knight joins Kathryn to talk about the remarkable suit of legal powers the government has deployed during the coronavirus crisis. What are some of the rule-of-law implications?

Over the weekend – Director-General of Health Ashley Bloomfield used the Public Health Act to give police the power to arrest people who flout lockdown rules.

But University of Canterbury disaster law expert John Hopkins told Heather du Plessis-Allan that’s not what the act is for.

“We should welcome the fact that they introduced new laws at the weekend to make it more clear, but they’ve relied more on the Health Act, which is not really designed for the kind of lockdown that we’ve currently got.”

But he says that doesn’t mean it won’t be legally enforced.

“The courts would be very unlikely to take that given to the reality that we’re in. We’re under a state of emergency and the police powers are extensive under that legislation as well. They’re very broad.”

The second important thing that this new Health Act notice does is give these level four rules a much firmer legal footing. No one really has wanted to say it out loud for fear of undermining what needs to be a collective exercise, but it’s pretty apparent that the police actually couldn’t enforce many of the prohibitions we were being told were in place. And once that fact became common knowledge, via media stories like this one, there was a risk that general compliance with the level four lockdown requirements could suffer.

And so, this new notice is to be welcomed. It not only tells us with some greater clarity just what are “the rules”, it also provides a clear legal basis to enable the police to hold us to them. If they catch you launching a boat, or setting off for a 20km hike into the hills, or riding in a car with someone from outside of your bubble, or just loitering in the street because you are bored, they now have the lawful power to do something about it through arrest and charges.

Nathan Batts, a senior associate at Haigh Lyon, argues such restrictions on activity, along with the power to lock New Zealand into isolation and quarantine, may not be backed by legislative authority. And the police, he says, cannot enforce the will of ministers unless that will is expressed in law.

I don’t  remember seeing the National Opposition raising it but that could have been lost in the noise of Covid coverage.

A couple of legal lightweights took it to court, this was covered by media and also here Failures with habeas corpus writ against Ardern et al over lockdown ‘detention’.

The Geddis/Geiringer post addresses this:

Nevertheless, questions surrounding the legality of the lockdown received their first outing in the High Court this week, when Peters J dismissed an application by two litigants in person for habeas corpus (A v Ardern [2020] NZHC 796B v Ardern [2020] NZHC 814). Her Honour held in both cases that the conditions of the lockdown did not amount to “detention”, that the lockdown was in any event lawful, and that many of the issues raised by the applicant were not suitable for determination by way of habeas corpus.

These applications were doomed to fail. They were poorly argued, framed in large part as a personal attack against the Prime Minister and Director-General of Health. In A’s case, the applicant was already serving a sentence of home detention.

Both the judge and the lawyer representing the Crown said that a habeas corpus writ was the wrong approach and that it should have been done via a judicial review.

Nevertheless, we argue here that the formal legal status of the lockdown is far from secure. Given the significance of the threat to which the Government is responding, the New Zealand courts may well be reluctant to uphold a legal challenge. But the tenuous legal foundation of the lockdown regime represents a significant constitutional problem that needs to be addressed.

Unlike in the United Kingdom, the Government has, to date, located its lockdown powers entirely under the pre-existing legal regime relating to civil and public health emergencies.

Moving into the Level 4 Lockdown, the New Zealand Government issued an “epidemic notice” under the Epidemic Preparedness Act 2006 and declared a state of national emergency under the Civil Defence and Emergency Management Act 2002. These two steps triggered a range of executive government powers. Most significantly for our purposes, they unlocked a set of coercive powers reposed in medical officers of health under s 70 of the Health Act 1956. In practice, the s 70 powers have been exercised by New Zealand’s chief public health officer, the Director-General of Health.

Although this seemed to be the primary legal basis for the lockdown restrictions at the time, official Government statements, as well as Police enforcement action, purported to impose far greater limits on civil liberties. New Zealanders were directed to stay home in their bubbles, to receive no visitors, and to venture out only for the limited purposes set out in the opening paragraph above.

In the main, the Police have preferred not to rely on a parallel coercive powers regime to be found in the Civil Defence Emergency Management Act. That regime has its own problems, which are not discussed here.

On April 3, the Director-General moved to address this discrepancy. He issued a new notice – this time under the Health Act, s 70(1)(f), which empowers a medical officer of health to require persons to be isolated or quarantined. On this basis, the Director-General ordered that all persons in New Zealand remain in their residences and only leave for the purpose of “essential personal movement” as defined in the order (“the s 70(1)(f) notice”).

Police operational guidelines confirmed that these twin Health Act notices provided the primary basis for legal enforcement of the Level 4 Lockdown restrictions.

I haven’t seen any sign of the Police abusing their powers. They seem to have been much easier on enforcement that in Australia, who have had a less restrictive lockdown.

It has been effective but has it been legal?

It is clear that the Level 4 Lockdown rules have been very successful in their intended aim of eliminating the virus from the country. Furthermore, the New Zealand public’s support for (and voluntary compliance with) their requirements has been very high. From an effectiveness and social-licence perspective, there is little to criticise in them. However, the legal status of the Level 4 Lockdown rules is far more tenuous.

A first and critical question concerns whether Cabinet has overstepped the mark in purporting to direct the country into lockdown. Throughout the crisis, decisions as to whether and when to go into lockdown, and exactly how civil liberties are to be restricted, have been presented as residing in Cabinet. But that is not so. As set out above (and as acknowledged internally within Government in a Cabinet paper that has just been released), the only relevant coercive powers lie with medical officers of health under s 70. This raises a question as to whether any of Cabinet’s statements (especially, those backed up by coercive Police action) amount to a purported suspending of the law without consent of Parliament contrary to the Bill of Rights 1688. It also raises the possibility that the Director-General might be accused of acting under dictation in the making of his various orders.

Secondly, there is a real question as to whether the s 70 notices are ultra vires. Section 70(1)(m) permits a medical officer of health, by way of public notice, to “require to be closed … all premises … of any stated kind or description”. It is by no means clear that permits the Director-General to close all premises, subject to an express exemption – as he did in the order.

The s 70(1)(f) notice is arguably even more vulnerable. An initial question is whether the Level 4 Lockdown rules actually are a form of “isolation” or “quarantine”, given the broad exceptions for essential workers and essential activities that attach. Even if they are, it is highly debatable whether the Director-General’s power to “require persons … to be isolated or quarantined” empowers an order isolating or quarantining all persons throughout the country rather than specifically identified individuals. It is a power exercisable by a single public health official, with no requirement to consult anyone else in the making of the decision.

It appears to give the Director general of health extraordinary powers.

To be clear, Peters J in A v Ardern specifically rejected the argument that the s 70(1)(f) order was ultra vires (albeit in a brief obiter paragraph). In context, that outcome was unsurprising. Nevertheless, we think the point deserved fuller consideration.

Perhaps it will get fuller consideration if taken to appeal, but the particular applicant involved could not be relied on to present cogent arguments.

A third set of questions concerns the consistency of these notices with the New Zealand Bill of Rights Act 1990 (NZBORA). The effect of that Act is that the Health Act notices can only impose limits on a range of civil and political rights (including the freedoms of expression, association, peaceful assembly and movement) if those limits are “demonstrably justified”. Combating COVID-19 clearly provides an exceptionally strong justification for limiting rights, and any court would be likely to accord the Government considerable latitude. Nevertheless, it can certainly be argued that some of the limits imposed by the notices go beyond what is necessary.

…We have identified above some specific deficiencies in New Zealand’s legal regime. Underlying these specific problems lie broader questions about where power should reside to limit civil liberties on such a significant scale. The instinct of the New Zealand’s government that at least some of these powers ought to reside with Cabinet is probably the correct one. But it finds no current basis in New Zealand law.

This post is written as New Zealand transitions from Level 4 Lockdown into Level 3, at which the country will see some (limited) loosening of restrictions on civil liberties but the essence of the lockdown regime will remain in place. The timing and details of the move to Level 3 have, again, been presented as a decision of Cabinet and will, again, be effected through further section 70 notices described as “orders”. Thus, the legal difficulties attending the Level 4 Lockdown have not, in our view, been resolved.

Although these legal deficiencies expose New Zealand’s COVID-19 response to a degree of on-going legal risk, A v Ardern and B v Ardern demonstrate how reluctant New Zealand courts may be to uphold a legal challenge.

But that was a very poor challenge which seemed more personal and political than based on sound legal reasoning.

Beyond the potential for judicial challenge, however, lie deeper rule of law considerations. The Level 4 (and upcoming Level 3) lockdowns impose the most extensive restrictions on New Zealanders’ lives seen for at least seventy years; perhaps ever. No matter how “necessary” these may be, we should expect such restrictions to have a clear, certain basis in law and be imposed through a transparent and accountable process.

It is to be hoped that, when it resumes next week, New Zealand’s Parliament will take the opportunity to put the lockdown regime on a more secure legislative footing.

Parliament in New Zealand resumes today, with some limitations.

National leader Simon Bridges was a lawyer and Crown prosecutor, perhaps this is something he could get his Opposition teeth into.

I have had a browse back through National press releases and it was raised by Justice spokesperson Mark Mitchell: Government must release Crown Law advice but that’s all I can see over the past month.