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.

Leaked documents “not considered advice of Crown Law” but new law proposed anyway

Claims continue that leaked Crown Law documents suggested that level 4 lockdown restrictions were not legally enforceable (at least before a new health notice was issued in early April) but in response Attorney-General David Parker has said the document was a draft – and “not the considered advice of Crown Law” and “there was no gap in enforcement powers.”

However Parker is going to introduce new law next week to “ensure that controls on gatherings of people and physical distancing are still enforceable”. That may be an aimed at preempting a judicial review that is pending in the High Court that seeks to challenge the legality of the lockdown restrictions – see A better looking challenge of Covid lockdown legality.

NZ Herald:  Leaked Crown Law documents question legal force of alert level 4 rules

The Crown Law documents seen by Newstalk ZB say the police powers were severely limited under the first directive of director general of health Ashley Bloomfield.

That was amended anyway in early May.

However Parker insisted in a statement that the documents were not the “considered advice” of Crown Law:

“Recent speculation that the Government’s legal advice had thrown doubt on the police enforcement powers under Level 4 is wrong,” he said.

“That speculation is based on draft views provided to agencies for feedback. That was not the considered advice of Crown Law, which was that there was no gap in enforcement powers.”

Shown the Crown Law documents, University of Otago law professor Andrew Geddis said the restrictions wouldn’t allow the police to stop people from moving about and doing virtually anything, like surfing, if they weren’t congregating.

But Andrew Geddis:

Shown the Crown Law documents, University of Otago law professor Andrew Geddis said the restrictions wouldn’t allow the police to stop people from moving about and doing virtually anything, like surfing, if they weren’t congregating.

So this meant the full range of level 4 announced restrictions actually couldn’t be enforced by the police.

“The police powers under other legislation (especially the Civil Defence and Emergency Management Act) is really limited – basically, they can only be used against people who have/are suspected of having COVID-19,” Professor Geddis said.

But the Police:

In a statement released tonight a police spokesman said officers did act lawfully.

“We sought legal advice, which also took into account advice from Crown Law, in relation to the initial Health Notice (25 March). On the basis of this advice, we were able to issue appropriate operational guidance to enable our people to act lawfully in circumstances.”

Ten days after the level 4 lockdown started Bloomfield issued a second directive, again under the Health Act. It effectively told everyone to stay in their houses, unless they were on essential business.

The police then issued their own guidelines on how they could enforce it.

“The key point being, between March 24 and April 3 much of the “Lockdown rules” actually had no enforceability in law – which is what Crown Law is saying, and which is why the new notice had to be issued,” Professor Geddis said.

So the problem was then rectified, maybe, (subject to the judicial review).

Graeme Edgler also seems to have had doubts about legality but thought the actions sensible.

Despite Police and Attorney-General claims that restrictions were legal the law is going to be changed anyway. From the Beehive:

Covid-19 response: New legal framework as move to Alert Level 2 considered

A new law providing a legal framework for Covid-19 Alert Level 2 will be introduced and debated next week.

“The changes will ensure that controls on gatherings of people and physical distancing are still enforceable,” Attorney-General David Parker said.

Enforceability to date has relied on the Epidemic Notice, the Health Act and the Civil Defence Emergency Management Act.

There will be fewer restrictions under Alert Level 2 but those remaining still need to be enforceable. We don’t want these narrower controls to rely on a National State of Emergency.

“I would reiterate what the Prime Minister has said: There has been no gap in the legal underpinning or in the enforcement powers under the notices that have been issued under Level 3 and Level 4. This change is not retrospective and does not need to be.

“All notices that have been issued are in the public domain, as is the legislation upon which they are based.”

Recent speculation that the Government’s legal advice had thrown doubt on the police enforcement powers under Level 4 is wrong. That speculation is based on draft views provided to agencies for feedback. That was not the considered advice of Crown Law, which was that there was no gap in enforcement powers.

The new law will also:

  • Recognise the centrality of health factors in the measures we need to take;
  • Provide that the Minister of Health become the decision maker on the advice of the Director-General of Health;
  • Provide a transparent basis for how the rules will work and how they can be enforced;
  • Also provide for economic and social factors to be taken into account in determining appropriate measures.

“The country has achieved considerable success in addressing the Covid-19 threat. We have all given up some our liberties as we have worked together to save thousands of lives. As we reduce strictures and restore freedoms, we expect the vast majority of New Zealanders will continue to comply voluntarily with the necessary measures at all Alert Levels, but as we have consistently said, we will enforce the rules where there is serious non-compliance.”