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.

So we’re on Level 1

We’re now on Covid Alert Level 1 for the first time – we skipped it when we went up the levels in April, from 2 to 3 to 4.

This means that apart from international travel we are more or less back to normal. Social distancing is still encouraged but not required.

There is no limit to social gatherings. This means that sports and music events can resume.

Super Rugby Aotearoa kicks off in Dunedin (Chiefs versus Highlanders) on Saturday with tickets on sale to the public.  This may receive international coverage as sport world wide has been largely been put on hold due too the Covid pandemic.

The biggest risk now is people bringing Covid into the country. Incoming travellers will still go into 14 day quarantine and will now be tested twice – testing them should always have been a priority.

Reopening of international borders, even with Australia, seems a while away yet.

Hand washing and sanitising is still encouraged. This may have wider benefits unless there are unintended consequences.

Social distancing won’t make much difference generally as the public has most ignored it over the last couple of weeks under Level 2. But it does mean cafes and restaurants and bars can get back to operating as normal.

One thing that should change is the attitude to working and socialising while sick. Codral has revamped it’s winter advertising, which was necessary because ‘soldier on’ is the opposite of what is recommended by the Ministry of Health.

There is another contradiction – some people (including Minister of Finance Grant Robertson) are encouraging people who remain working at home to go back to their offices because centre city cafes and restaurants are suffering, but others want working from home to continue to reduce traffic and CBD congestion.

Business closures and job losses continue. Some of this is directly due to the Covid lockdowns, especially airlines and anyone involved in tourism, as well as a lot of hospitality.

Having to shut down or scale back will have been nail in the coffin for businesses that were already marginal. Some won’t reopen, some will struggle more and there will be inevitable business failures.

But it is obvious that some job losses and business and shop closures have used Covid as an excuse, or have just brought forward the timing of closures.

Yesterday The Warehouse announced the closure of shops and the loss of over a thousand jobs. In normal times this would be big news, but it can be shrugged off as ‘covid’. However the Warehouse admits these moves were on the cards anyway as they looked to change their business model.

The lockdown prompted a lot of businesses to move more towards online sales. Some of this move will continue, and will affect shops and jobs.

The extent of the after effects of the lockdown are difficult to predict, except that they are likely to be substantial. World wide trade and economies have been seriously affected and at more risk than usual – a recession was already overdue and predicted even before Covid struck.

There could be a crunch yet too come. The three month wage subsidy will run out soon. Many businesses will bebe able to take advantage of a further 8 weeks of wage subsidy, but will no doubt be reviewing their futures after that. There will be more jobs down the gurgler.

Some of us can sort of get back to normal but the covid cloud still hovers over us, and the effects have already been substantial and will be ongoing.



Pressure increasing on lowering to Level 1 and trans-Tasman travel

Opening up travel between New Zealand and Australia has been proposed as both countries appear to have Covid-19 well under control. It looks unlikely to happen before New Zealand drops to Level 1 restrictions (whatever they may end up being), and Cabinet are not due to consider lowering to level 1 for a week and a half and it has been indicated (on Monday) it may be up to 4 weeks away.

Winton Peters has been talking about a Trans-Tasman bubble for over a month, and is now breaking ranks with Cabinet and says he wants one “yesterday”, but Jacinda Ardern has indicated that September is more likely

24 April: Trans-Tasman bubble could start ‘more quickly than we think’ – Peters

Deputy Prime Minister Winston Peters says some businesses could be saved if the country creates a trans-Tasman bubble – and he’s open to starting on a state-by-state basis.

Fifty-five per cent of tourists who visit New Zealand come from Australia and the foreign affairs minister said it therefore made sense to start planning how a trans-Tasman travel bubble might work.

“So, it requires us to put our best minds together here and in Australia. I’ve spoken to the Foreign Minister in Australia about the need for us to start thinking about that now,” he said.

Australian Prime Minister Scott Morrison is on board and said it made sense to work with New Zealand on any relaxing of the border restrictions.

“I would have thought New Zealand would be the obvious candidate [for border openings] and that’s the nature of discussions we’ve had,” Morrison said.

Wednesday: Hopes to get trans-Tasman bubble flying by July

A high-powered group investigating opening up trans-Tasman travel amid the coronavirus pandemic hopes to put its proposal to politicians by early June, and get people travelling by the July school holidays.

The ‘Trans-Tasman Safe Border Group’ is made up of 11 government agencies, six airports, two airlines, and includes health experts and airline, airport and border agency representatives from both Australia and New Zealand.

Started by Auckland Airport, and co-ordinated by the Australia New Zealand Leadership Forum (ANZLF), the team of 40 experts have been working for the past two weeks on recommendations for the re-opening of borders between Australia and New Zealand.

ANZLF co-chair Ann Sherry said the group wanted to focus on getting it right first on the Tasman before opening up to the Pacific and other destinations.

“We’ve got an early June objective to get recommendations back to government, but we’re testing it with government as we go along to make sure our thinking isn’t divergent at this stage of the process.”

Once the systems were considered by decision-makers, she was optimistic the trial might be completed in time for the July school holidays, she said.

Prime Minister Ardern was non-committal:

Prime Minister Jacinda Ardern has not set a date for how soon the bubble could be set up, saying both countries would need to be comfortable.

Ardern spoke with Australian prime minister Scott Morrison on Tuesday about the proposal, and said on Wednesday that there was enthusiasm on both sides of the Tasman.

The two countries were at different stages of easing restrictions, and New Zealand had had a bit more time to see how progress was going in stamping out Covid-19, she said.

“I’d say good work is taking place and it won’t be too long before we will be ready.”

Deputy Prime Minister Peters is pushing different aspirations:

Deputy Prime Minister Winston Peters has broken rank with Labour, saying that quarantine-free trans-Tasman travel should already be allowed out of one side of his mouth, but has a different story out of the other.

However, Peters told a Trans-Tasman Business Circle briefing on Wednesday that opening the trans-Tasman border was urgent for both economies, but the two countries were not yet ready.

“If the decision was made today could we start tomorrow, I’m going to be honest and say no – but we’re working on it with the greatest of urgency now so that if the decision was made sooner rather than later, we’d be off and hopefully got every contingency foreseeable and imaginable covered,” Peters said.

Travel isn’t even allowed between states in Australia so opening up to New Zealand looks unlikely right now.

Yesterday in Parliament Winston Peters says he’d like to see trans-Tasman bubble implemented ‘yesterday’

National’s deputy leader Nikki Kaye questioned Mr Peters, who was answering on behalf of the Prime Minister in question time today, over recent disagreements within the Government on Covid-19 restriction timelines.

“Has the Foreign Minister (Winston Peters) advocated to her (Jacinda Ardern) or to the Cabinet to proceed faster around the trans-Tasman bubble,” Ms Kaye asked.

Mr Peters gave a direct response to the question.

“Take a wild guess,” he said with a wry smile.

Ms Kaye then pressed him whether he had pushed for a date that the travel bubble should come into force.

“Yesterday,” he replied before once again taking his seat.

But that may just be typical Peters posturing to an audience.

Margy Osmond, co-chair of the Trans-Tasman Safe Border Group, told the Sydney Morning Herald they expected it to commence “as early as September”.

When asked about this, Prime Minister Jacinda Ardern said “that could be realistic”.

“I have been careful about putting down specific dates, but have been very focused on making sure we are ready, then we can move and we won’t be constrained by needing to do any administrative or logistical work at our borders,” she told media today.

Opening borders is dependent on moving to level 1.

ACT MP David Seymour has accused Peters of breaching Cabinet rules – Deputy Prime Minister Winston Peters accused of breaching Cabinet rules in revealing Jacinda Ardern’s views on level 1 move

Speaking to Newstalk ZB this morning, Peters – NZ First leader as well as Deputy Prime Minister – openly talked about conversations had in Cabinet.

Asked if New Zealand had been in level 2 for too long, he said: “My party made it very clear we thought that. And the Prime Minister has actually admitted that at the Cabinet meeting – she said it.”

According to the Cabinet Manual – the set of rules for ministers, enforced by the Prime Minister – ministers are not allowed to talk about what happens within Cabinet meetings.

“Discussion at Cabinet and Cabinet committee meetings is informal and confidential,” it says.

“Ministers and officials should not … disclose or record the nature or content of the discussions or the views of individual ministers or officials expressed at the meeting itself.”

Seymour said that by saying what Prime Minister Jacinda Ardern said in Cabinet on live radio this morning, Peters was in breach of this rule.

It is up to the Prime Minister as to whether or not a minister is disciplined for breaking the Cabinet Manual rules.

Ardern has a record of turning a blind eye to what Peters and Shane Jones do.

Regardless of this political posturing, the public may be adding to the pressure to ease restrictions and get back closer to normal. There have been no new Covid cases in New Zealand for a week, and there are now only 8 active cases, all in the  Auckland region. The case for continuing restrictions will get increasingly hard for the Government to maintain.

The country has virtually eliminated Covid – but the big risk now is if it comes back into the country when border restrictions are eased.

And while Australian Covid numbers look proportionally similar to here The virus figure Australian officials are most worried about

…despite the country’s achievements in overcoming the worst of the virus, there is still one concerning figure looming over its recovery.

Figures released by the Department of Health show that 732, or about 10.3 per cent, of confirmed Covid-19 cases in the country have been locally acquired with no contact identified.

This means hundreds of people have caught the virus in Australia but the source of the infection could not be found.

That will be a concern to health officials here, and the Government says they rely on the officials for advice on easing restrictions.

But when should we at least lower to level 1 restrictions here? There has been no community transmission since early April, and business concerns are growing.

NZ Herald: Jacinda Ardern’s wriggle room on moving to alert level 1 early

Cabinet is set to look at whether New Zealand should move to level 1 on June 22, but pressure is mounting to move earlier, with Deputy Prime Minister Winston Peters saying it should have already happened.

Yesterday a top business restructuring expert, Grant Graham, whose firm KordaMentha partner makes money from insolvency work, pleaded for a move to level 1 to save “unjustifiable” job losses.

Yesterday was the sixth straight day of no new Covid-19 cases, and there have been no community transmission cases – whose branches are harder to trace and isolate – since the beginning of April.

It is possible that there will be no active cases in New Zealand by Cabinet’s D-day on June 22.

Meanwhile Stats NZ revealed that the number of filled jobs plummeted by a record 37,500 in April.

The decimated industries of tourism, hospitality, and events are hoping for an earlier move to level 1, where there will be no physical distancing requirements and no restrictions on numbers at social gatherings.

Ardern said on Monday that Cabinet would consider the settings of level 2 in 10 days, on June 8, and it will meet no later than on June 22 to look at whether the country could move to level 1.

She reiterated that timetable yesterday, saying it was based on Bloomfield’s advice.

But Cabinet could decide, based on his advice, to open up level 2 even more after June 8, or consider moving to level 1 before June 22.

“We have given us some space, just in case,” Ardern said yesterday.

Ardern seems to have one eye on health advice, hopefully she has one eye on deteriorating business news, and both eyes on the election.

June 22 looks a long way away as we move close to no active cases in the country.

Cape Reinga closure “cultural mumbo jumbo” as authorities puihi foot

Cape Reinga has remained closed (with a gate across the road) since lockdown, with some local Māori saying the area needs to be blessed and cleansed due to Covid-19, because after death people’s spirits travel there to depart to the afterlife.

Tourists are being blocked from visiting Cape Reinga by local Iw, with the puihi footing support of DOC and compliance of NZTA.

Earlier this week National MP Matt King tried visiting the Cape with his wife and parents and a man threatened to “knock him out” if he tried to get past the gate.

NZ First MP Shane Jones has called the claims ‘rubbish” and “cultural mumbo jumbo”.

On Wednesday (1 News):  National MP in confrontation with members of local iwi after being refused access to Cape Reinga

Dozens of tourists are being turned away from Cape Reinga by local iwi, despite tourism and hospitality in the region trying to encourage visitors to the area.

Northland MP Matt King made a video of a confrontation that took place with iwi as he tried to access the location.

“It’s my customary rights and I’m prepared to knock you out if you pass that gate,” a person blocking access says in the video.

Mr King talked to 1 NEWS about his experience.

“This is not about Covid-19, they gave me a range of reasons as to why the road was blocked. One was that DOC was doing maintenance up there, then they said it was their land.

“Northland is a beautiful place with beautiful people in it and we’ve got a lot to offer and I just want to see the roadblocks taken down and us just getting back to business”.

Ngāti Kuri says that is what it wants too, but first the sacred site must be cleansed. Māori tradition holds that after death spirits travel there to depart.

“There is a responsibility and obligation and opportunity to move us through to Level 1 by having an appropriate opening so spirits can move toward te rerenga wairua,” Harry Burkhardt of Ngāti Kuri says.

NZTA say its working with the iwi and the Department of Conservation who are restricting access until facilities are cleaned.

“Working with” appears to be allowing the road block to continue as long as those involved from Ngāti Kuri choose.

DOC fully supports Ngāti Kuri’s management of the area and says it’s working to undertake physical safety checks at the site, including walking trails, campgrounds and facilities.

A reopening ceremony will take place on May 29.

Also from NZ Herald:  `This isn’t about Covid 19′

Northland MP Matt King set off for Cape Rēinga, with his wife and parents, on Tuesday, but he didn’t get there. State Highway 1 was blocked several kilometres south of the cape, and the four people manning it had no intention of letting him past.

“I got them to admit that it was about Māori land. They told me they owned the land, and they weren’t going to let me past.”

One of those manning the gate, he said, had threatened to knock him out, while another said one phone call would bring 500 reinforcements to the gate, and that they would “eat me alive”.

A police officer was present, but did not intervene, and left when King did, following him south. (Police have given an undertaking that officers will be present at every Covid-19 checkpoint).

“He said he had been told not to take action, so he was in an impossible position, but his role had been to keep the peace. If he hadn’t been there it could have become quite ugly.”

King said he had been contacted by numerous people, including tour operators, who were concerned and upset by the road closure.

Most of them were afraid to speak publicly, so he was speaking for them.

Shane Jones never seems afraid to speak, even when criticising Māori.

Saturday (1 News): Shane Jones calls iwi’s reason for barring access to Cape Reinga ‘cultural mumbo jumbo’

“Cape Reinga has been hijacked by Ngāti Kuri and their cultural mumbo jumbo,” says Shane Jones.

“This notion that the spirits need to slumber post Covid is rubbish, this notion that the spirits are travelling to Cape Reinga to hibernate.”

The MP is of Te Aupouri and Ngai Takoto descent and says the Cape belongs to the nation and has significance to all Māori tribes.

“It’s a place of national significance that’s being tainted by people that don’t know what they’re talking about and who have no mandate.“

Jones says the iwi organisation overseeing the closure is like, “children without books, they haven’t learnt anything.”

The closure coincides with Northland industry leaders calling for people to come and visit the region.

Police wouldn’t comment on the road block instead referring the matter to the New Zealand Transport Authority which says it’s working with the Iwi and the Department of Conservation who are supporting the restricted access.

Authorities puihi foot around the issue.

If Matt King had referred to the road block as ‘rubbish’ and the need to let spirits slumber as ‘mumbo jumbo’ he would likely have been condemned by some Māori. These days it seems that only Māori  can be critical of Māori actions and cultural beliefs.

Ngāti Kuri have said they  will reopen the road with a ceremony on May 29.

91.6% supported Level 4 lockdown

One of the more interesting results from the Newshub/Reid Research poll:

The Government put the country into level 4 lockdown for four weeks. Do you think this was the right call?

  • Yes 91.6%
  • No 6%
  • Don’t know 2.5%

The poll was conducted between 8-16 May with half of the responses taken after the Budget.
The poll has a maximum sample error of +/- 3.1 percent.  

The polling was done after the level 4 lockdown had finished. This suggests near universal support for playing safe health-wise.

Lowering to Alert Level 2 on Thursday

By Thursday we will be switching down to Covid Alert Level 2 lockdown, sort of, as per the rules published last week but with a few tweaks.

(11:59 pm Wednesday is virtually Thursday).

Shops, cafes, restaurants, playgrounds and other public places will be able to reopen on Thursday.

Monday 18 May all children will be able to go back to school.

Thursday 21 May bars will be able to open with proper safety measures – but with a welcome clarification, a single person can serve multiple tables but must do everything on each of those tables (take orders, server, clear up). Group bookings limited to 10.

If the primary purpose is for dining they can open this week, if the primary purpose is for drinking they can’t open until next week. Odd distinction.

Social gatherings at home limited to 10 people, also tangis, funerals and weddings, and also religious gatherings and church services – seems to be a new tweak.

Jacinda Ardern has just announced this along with another speech.

This will be reviewed in two weeks, with an indication gathering numbers may be tweaked some more but staying on level 2.

“A long road to full recovery”.

Masks won’t be required on public transport.

All going to plan things will keep opening up after two weeks, and another two weeks.

Alert Level 2 details (subject to the variations announced).

Ardern’s announcement (I’m not going to try to precise, a lot of waffle in it)

More details probably to come.

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.

Alert level decision today

Today Cabinet will make a decision on whether to lower us to Covid Alert Level 2 or not. That will be announced at a 4 pm news conference.

There seems to be a growing public desire to loosen the restrictions after 6 weeks in fairly strict lockdown, with an increasing number of people going on walks and doing other activities in sometimes quite crowded public situations.

The revised rules for Level 2 were announced last week – see Alert Level 2 information.

But there is some talk of the need to strengthen some of the restrictions, and to phase in the change to level 2. From NZ Herald: Cabinet meets to decide if New Zealand is ready for alert level 2

If Cabinet decides the country is ready to come out of level 3, New Zealand could move to alert level 2 as early as Wednesday.

That’s misleading. 11:59 pm on Wednesday is effectively Thursday for everyone.

And if level 2 is greenlighted, one of the country’s top epidemiology experts says the Government should consider making masks on public transport compulsory.

“This would give us another line of defence,” Otago University epidemiologist Professor Michael Baker said.

Baker supported a phased approach to level 2.

“Thinking logically, you might begin with the most controlled environments, like workplaces and schools, where risk can be minimised.”

Then, once officials are sure level 2 was showing signs of success, the Government could loosen restrictions on places like bars and nightclubs, he said.

But the Level 2 rules have already been announced. If they were changed again, and in effect a level 2.5 was introduced, that would be confusing and would be likely to be even more ignored than the current Level 3.

He told Newstalk ZB’s Mike Hosking today that complacency and rule-breaking were common right now.

They would become more common if they start dicking around with Level 2 rules at this stage.

Losoening restrictions to soon or too fast do raise the risks of Covid re-establishing itself. The virus has proven to spread quickly and easily.

But if the Government decides to keep us in Level 3 for longer they risk losing the support of the public, who willingly did the level 4 lockdown thing in the interests of their safety and public safety, but now Covid looks to be under control and very low risk to nearly everyone it will be hard for even Jacinda Ardern to convince people of the need not to relax some more.

We will find out this afternoon, but I think that Government would have to have a much stringer and more specific reason to not lower the lockdown level than “we must stay the course for another week (or two)” and other overused phrases.

This sort of headline won’t help keep the public on side: Alert levels two and three could be in place for ‘moderate amount of time’ – obviously that’s possible, especially level 2, but talk of an extended period on level 3 is unlikely to be popular.

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.”

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.