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 here, part 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.