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The Covid Court Case

Written By: - Date published: 8:18 am, August 20th, 2020 - 30 comments
Categories: covid-19, david parker, human rights, jacinda ardern, uncategorized - Tags:

Mr Borrowdale has succeeded in part and the High Court has ruled that the first 9 days, from March 26 to April 3, elements of the Government’s Covid lockdown were unenforcable.  I am not surprised.  Based on this opinion given by Andrew Geddis I said earlier that the first period could be under threat.

I previously blogged:

The original Health Act notice is being challenged in court. To be frank the argument has some merit and I would not guarantee that it would fail. As has been pointed out by Andrew Geddis when you read the enabling provision you wonder if it has been stretched out of shape by being applied nationwide, when it appears to be targetted at localised breakouts of disease. If there is no Covid-19 on Stewart Island or the Chatham Islands then why should they have been subject to the lockdown.

Having said that I believe that the decision was the right decision. But time will tell if legally it was robust and I would not rule out retrospective legislation.

As Geddis concludes:

[The lockdown] imposes the most extensive restrictions on New Zealanders’ lives seen for at least 70 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.”

He also considers that the Government has shown care in the handling of subsequent Health Act notices:

We recognise that the government is alert to these sorts of concerns, and has taken some good steps to try and address them. The orders establishing our level three lockdown are well designed and drafted. And the attorney-general’s cabinet paper setting out the legal issues involved in moving to level three shows a commendable engagement with the relevant legal challenges. Any claim that the government simply doesn’t care about what the law requires of it is neither true nor fair.

The Court held that the powers could be applied nationally and held that the use of the powers in section 70 of the Health Act 1956 were appropriate.

Problems were identified however with the first part of the lockdown.  The Court reviewed the initial public statements by Jacinda Ardern and others and then said this:

[183] It is this dichotomy – the importance of encouraging voluntary compliance but also the threatened use of coercive powers – that lies at the heart of the first cause of action.

[184] It follows that we accept, for example, that the Statements contain much “soft messaging” focusing on the “Unite” campaign and the concept of a “Team of 5 million”. They repeatedly emphasise the importance of collective action and commitment. On numerous occasions New Zealanders are “asked” to stay home, just as they are asked to be kind and to wash their hands. Equally, however, the Statements are replete with commands: the frequent use of the word “must”, backed up by
reference to the possibility of enforcement action for those who did not follow the “rules”.

[185] Standing together with that imperative language are other contextual matters that support our view that the Statements conveyed commands, not guidance.

The Court then said that the orders could have been made under section 70(1)(f) of the Health Act but because it was a whole of Government response and because Dr Bloomfield did not purport to exercise powers under this section during the first 9 days the requirement was not legally made.

[215] It is clear to us that Dr Bloomfield’s advice was critical to the Government’s decision-making before and after Lockdown. He had advised Cabinet that Lockdown was required. He had the power under s 70(1)(f) to impose the Restrictive Measures, and he later exercised that power. And while we acknowledge that Dr Bloomfield would, no doubt, have exercised the power earlier if it were thought necessary for Lockdown, there is no evidence that he either intended to do so or thought that he had done so before making Order 2.

Basically the Government was trying to be too nice and not draconian enough.  The Court however said this about the situation:

[226] It is important, however, to keep our conclusion in perspective. The situation lasted for nine days. And it occurred when New Zealand was in a state of a national emergency fighting a global pandemic. The Restrictive Measures could have been lawfully imposed had the Director-General’s powers under s 70(1)(f) been exercised sooner – and he would have done so, if he thought it necessary.

The consequence?  People arrested for Health Act breaches during the first 9 days could possibly seek to review the charge.  The Court noted there were up to 25 instances although it did not investigate the background or detail of the charges.

And just to remind people of what was happening here is the infection rate during those nine days.

This tweet sums up how I am sure the vast majority of people feel about the decision.

[tweet https://twitter.com/HaydenDonnell/status/1258309980857364480]

And this video summarises why I for one am pleased with what the Government did.

[tweet https://twitter.com/lozzjoy/status/1258168742971756547]

David Parker has indicated there is no need for retrospective legislation to fix matters up.  Apart from elements in the beltway I cannot imagine there being much angst at this decision.

30 comments on “The Covid Court Case ”

  1. Red Blooded One 1

    It would be interesting to know if Mr Borrowman has some connection to the NZ National Party. "Just asking questions eh Gerry"

    • aom 1.1

      Wasn't he the person who was responsible for drafting the 'defective' legislation?

      • mickysavage 1.1.1

        I understand he worked for the Parliamentary Drafting office. The court did not say the section was defective, just not properly applied initially. I don’t think that we should cast aspersions on his motivation. He is a lawyer and us lawyers are keen to see how the roll out of policies is handled legally.

        • Matiri

          It was a judicial review heard by three judges, don't believe there was any political motivation by Borrowdale a former Parliamentary counsel. He is not arguing that the government/law shouldn't have the authority to do what it did, but that it doesn't.

  2. Ad 2

    Core elements of the beltway will have been delighted that they could get to a maximal force majeure point that Defence, Police, Health, and Civil Defence could "stand up" and be under direct Prime Ministerial oversight.

    You don't get more U-Raa than that here.

    But you can sure see why the PM needs the House to sit: Attorney General David Parker confirmed yesterday that the Government, under the new COVID-19 Public Health Response Act had more flexibility to define what could happen at each Level.
    "One of the benefits of the specific Covid legislation is that it enables more fine-grained responses, including at Level Two".

    Straight on the day of the decision that shows they could have been more legal about it, Minister Parker had strong enthusiasm for the new legislation yesterday.

    I betcha we're going to get amendments to the enforcement power in the Health Act, as well as mandatory levels which include compulsory masks.

  3. Maurice 3

    This does demonstrate the virulence of the "Ultra Vires" virus and how completely the State sector is infected with it …..

  4. froggleblocks 4

    Technically Jacinda unlawfully kept us alive.

    Illegal: taking actions that specifically break an existing law.

    Unlawful: taking actions for which no law exists allowing them to be taken.

    • Draco T Bastard 4.1

      And that is why laws need to be fairly broad rather than narrow and then why we have judges.

      The law should always be able to be applied to an act and then a set of conditions would determine if its legal or illegal (essentially, moral or immoral) and then judges to determine for specific cases.

  5. millsy 5

    As a poster said above, what is Burrowdale's connection to the National Party.

    This whole thing reeks of shit-stirring to me, and a desire to get Collins an election victory.

    Seems that the so called "rule of law", is just giving licence to people to go crying to a judge if the government does something that they dont like.

    If anything Burrowdale needs to be thrown in jail for undermining the war on COVID.

    • Pataua4life 5.1

      Sit down , take a rest off you Jack boots for a moment

    • observer 5.2

      Oh for god's sake.

      Everybody acted in good faith on this. The government moved swiftly to deal with an emergency, and the court acknowledges this was justified. There was a challenge which both clarifies the law and – crucially – limits the potential abuse of power by a future government. The court took a balanced view and delivered a reasonable verdict, which has been well received by legal scholars.

      Not everything is "Our team vs their team". The law matters.

      • RedLogix 5.2.1

        Very good comment.

        In a democracy both progressives and conservatives will at times form government, and both will mutually recognise each other's legitimacy. This recognition is an essential plank in the foundation of all democracies.

        And it is the law which codifies this. Which is why it matters so much to a democracy, and much less so in all other totalitarian forms of government.

    • Incognito 5.3

      Borrowdale showed how it is done properly, not through yapping at every passing car.

  6. observer 6

    It's been less than a year, but maybe a reminder is needed: governments are subject to the law, and this is good …


    • Jum 6.1

      I agree Observer on 6. The question is always about what the next government Czar Brownlee e.g. would do with that.

      It seems to follow every other current Government action on the covid fightback – find an issue, get a round table (not business roundtable) of views, make a change or an improvement, keep doing that.

  7. The real point here is "We need to act fast in the face of a virus"

    The Government acted to protect people not to harm them.

    This is the first time since the war people have had to "act for the greater good"

    All actions have unintended consequence, therefore rules need checking and refining.

    Jacinda believes in "The rule of Law" so she would want the suitable decrees. imo.

    • Draco T Bastard 7.1

      The Government acted to protect people not to harm them.

      Exactly. The governments actions, although unlawful, were to protect people and thus moral.

  8. Jum 8

    Froggleblocks on 4 reminds us that illegal and unlawful terms are quite different.

    I went to the dark side early this am on newstalk zb and heard both hosking and even ex nat findlayson mixing up the two. That's very poor. That would confuse people who only listen to zb. Findlayson, QC, nat, former Attorney General in parliament. Findlayson should have pulled up hosking.

    Then there was a person talking about what fake news is: either disagreeing with an opinion you don't like (Trump) or misleading and mixing fact with fake to cause confusion. The person was very good to listen to, but the minute he was gone, hosking starts using ONLY the ‘fake news is disagreeing with an opinion’, which suits his deliberately confusing views.

    Unfortunately, I also caught the last ten minutes of the other part of the duo kate h. I had a headache after ten minutes, made the mistake of listening to hosking and the headache got worse. They talk so fast and people often miss the blatent drivel that is just incorrect and employing faction.

    I likened it to a group of hawkesbolics and hoskiholics rocking back and forth repeating newstalk zb religious texts from their guru.

    No wonder brownlee ended up in his 'dark place' if he listens to zb.

    I also turned to RadioNZ. There was an immediate difference, but I often pick up the leading of the guest to get the answer Dann wants and if they give the answer not suiting his daily assertion against the government, they're quickly cut off. But, they're more objective when compared to the private radio presenters with huge photos in the herald that just give me a fright when I open the paper. Do the radio stations pay the herald for those photo ops to encourage people over to the total immersion zb.

    • Just Is 8.1

      Thanks for taking one for team listening to Hoskings

      • Jum 8.1.1

        You have no idea! angel smiley

        But, unfortunately, it ties in with the (dare I say it) the hitler book. The message is that in order to defeat the enemy first we have to 'know' them. Followed quickly by: be careful looking into the abyss because it may get to infect you. Shudder.

  9. Kiwijoker 9

    I think the governments actions amount to misfeasance, where one does the wrong thing for the right reasons. Comments from you legal eagles ?

  10. Cliopedant 10

    I’m not sure we can accuse Mr Borrowdale of political animus without specific evidence. It seems to be that it was more a case of pedantic legalistic grandstanding. I know lawyers get off on this sort of arcane legal point but the rest of us really couldn’t give a retrospective rodent’s rectum (other than the usual partisan suspects). Tick the box; move on to dealing with what’s happening now.

    • Shanreagh 10.1

      The lawyers who do this are not exactly getting 'off on this sort of arcane legal point'. They fulfil a time-honoured function whether we like it or not and one that is part of the democracy we live in. There is always something to learn from a legal challenge both from the challenge itself and the decision, and our public service decision making & recording will be all the better for it.

      It was two lawyers (Patrick Finnegan and Phillip Recordon), looking at the constitution of the NZRFU that were granted an injunction that stopped the 1985 All Black tour of South Africa. This had incredible consequences for both NZ & against the apartheid regime in South Africa.


  11. Ant 11

    Reminded of the Buddha's story of a person wounded by an arrow. A doctor, on the verge of removing the arrow was asked by the stricken person : "wait: before you pull it out I want to know what your qualifications are and where you got your degree; what grades you achieved and whether you specialized in surgery; I need to know who shot the arrow and the percentage chance of it having a poisoned tip." About to marshal another round of probing queries he keeled over an died.

  12. JohnSelway 12

    It may have been unlawful but doubtless it was the right thing to do. Can't see anyone kicking up too much of a fuss

    (though if I had been arrested, charged or fined during those 9 days I would be taking it back to court)

  13. Just Is 13


    There isn't any info on the mobile version, don't know if you're aware, cheers

    • Gristle 13.1

      Can we describe this automatic editing of articles on the mobile version as a feature?

      It seems to happen often.

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