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