Court of Appeal hears case regarding the legality of New Zealand’s COVID-19 response
Earlier this week, the Court of Appeal heard a constitutionally significant appeal which challenged the New Zealand Government’s response to the COVID-19 pandemic.
The New Zealand Law Society | Te Kāhui Ture o Aotearoa intervened in the appeal as an independent, neutral participant to assist the Court because the appeal involved issues of general and wide importance.
The Law Society was represented by Tim Stephens, Jonathan Orpin-Dowell and Monique van Alphen Fyfe.
The issues considered in the appeal concerned:
- how special powers in the Health Act are interpreted in the context of a global pandemic; and
- whether the Director-General of Health unlawfully delegated decision-making to MBIE about the “essential businesses” exception to the nationwide closure of premises under his Health Act orders.
Interpreting the section 70 powers
The appellant, Dr Borrowdale, argued that certain orders made by the Director-General under section 70 of the Health Act were unlawful on the basis that section 70 did not grant powers to place the entire country into lockdown by requiring "all premises" to close, and "all persons" to stay at home.
The Law Society disagreed that the orders were unlawful. Mr Orpin-Dowell submitted that earlier versions of section 70 had been used in similar ways, and therefore Parliament must have intended for the current powers to be used in this way.
The Law Society submitted that the rule of law concerns to which emergency powers ordinarily give rise can be met by interpreting section 70 as to include a time constraint on the exercise of the powers contained with in it. The powers are intended to give the Director-General the authority to enable an immediate short-term response to an outbreak of disease. The orders, therefore, did not impose unlawful limits on individuals' rights and freedoms.
However, the powers do not provide a framework for a long-term response, which requires difficult policy decisions to be made, and trade-offs between health objectives and wider social and economic considerations. In New Zealand, Parliament is expected to undertake that assessment and make long-term decisions, and did so with the enactment of the COVID-19 Public Health Response Act 2020.
Delegation of powers
In relation to the second issue, Dr Borrowdale argued that certain orders made by the Director-General unlawfully delegated decision-making powers to MBIE officials, by enabling them to determine which businesses were categorised as an “essential business”. The New Zealand Law Society agreed with Dr Borrowdale on this point.
The High Court had previously found that the Director-General had not delegated his powers to officials, because the reference to the Covid-19 website in the order was merely advisory.
Mr Stephens, for the Law Society, submitted to the Court that the language used on the website was expressed in mandatory terms. A member of the public reading the Health Act orders and their reference to the Covid-19 website would likely believe that the website carried legal force and was not merely advisory.
Mr Stephens explained that the record showed the website was regularly updated with ‘additional decisions and exemptions’ recorded under the list of essential businesses. There was no evidence that the Director-General was engaged in the content of the website, meaning that the decisions and exemptions were being made by officials who had been delegated the responsibility and power to do so.
Justice French, Justice Cooper and Justice Collins presided over the hearing. Their Honours’ decision has been reserved.