The New Zealand Law Society | Te Kāhui Ture o Aotearoa welcomes the High Court judgment that affirms the central importance of the rule of law in the context of New Zealand’s response to the COVID-19 global pandemic.
The High Court has found that the Director-General lawfully exercised powers under section 70 of the Health Act in requiring isolation and quarantine on a nationwide basis. However, the Court has also concluded that for the first nine days of the lockdown, there was an unlawful limitation of certain rights and freedoms of New Zealanders.
“This is an important case for our country, and it was critical that all aspects of the legal position were considered,” says Law Society President Tiana Epati.
“The Law Society acted as an impartial and independent participant after being invited by the High Court to intervene. This is because the Society represents the legal profession in New Zealand and has the ability to draw on the expertise of our specialist law committees to address the central issues raised in the case.
“The Law Society provided written and oral submissions as a neutral party in the case, noting that the proceedings were important for the operation of the rule of law and the administration of justice, and were of significant public interest.”
At the heart of the case was the manner in which Health Act powers of an emergency character are properly interpreted in the context of a global pandemic, in a way that balances the rights of the individual, the democratic foundation of our constitution, and the rule of law.
The Court found that the Director-General lawfully exercised powers under section 70 of the Health Act in requiring isolation and quarantine on a nationwide basis.
However, the Court has also found there was a disjunct between the Government’s initial public communications and the formal restrictions imposed by the first Health Act order made on 25 March.
In the first nine days of the lockdown, there was no legal restriction on people visiting others in private homes, travelling any distance to exercise, or engaging in outdoor recreational activities in public spaces if they maintained physical distancing. Yet during this time, the Government conveyed that these activities were legally prohibited.
The Court found that the Director-General always had the legal power to impose these restrictions. When questions were raised at the time, the Director-General addressed the situation with a second Health Act order on 3 April.
Nonetheless, New Zealanders believed they were required by law to stay home and in their bubble when – for the nine-day period from 26 March to 3 April – that was not the case. The judgment says: “We have found that those Restrictive Measures were therefore a limit on rights and freedoms affirmed in the New Zealand Bill of Rights Act that were not — during that period — prescribed by law.”
The High Court goes on to put this finding in context. The judgment says that “it is important 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 Court also noted that this judgment does not have any impact on the current restrictions under Alert Levels 2 and 3 which have been made under new legislation.
The New Zealand Law Society | Te Kāhui Ture o Aotearoa intervenor submissions to the Court are also online.