New Zealand Law Society - High Court releases judgment on the legality of the ‘lockdown’

High Court releases judgment on the legality of the ‘lockdown’

We discuss our role as intervenor in the case brought by Dr Andrew Borrowdale testing the legality of several aspects of the lockdown.

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 lockdown case was brought by Dr Andrew Borrowdale, a former academic at the University of Canterbury and a legislative drafter at the Parliamentary Counsel Office.

The Law Society acted as an impartial and independent, neutral participant after being invited by the High Court to intervene.

Dr Borrowdale argued that there were three aspects of the lockdown that were unlawful:

  1. The Government’s initial public communications about the lockdown amounted to restrictions that were not prescribed by law because they did not reflect the Director-General’s initial Health Act order made on 25 March.
  2. Both the 25 March order and a second order on 3 April were ultra vires because they went beyond the powers conferred by ss 70(1)(f) and 70(1)(m) of the Health Act 1956.
  3. The Director-General unlawfully delegated decision-making regarding “essential services” to the Ministry of Business, Innovation and Employment.

The High Court did not accept Dr Borrowdale’s arguments on the second and third facets of his case. Importantly, the Court found that the Director-General lawfully exercised powers under the Health Act when he made the orders on 25 March and 3 April 2020 requiring isolation and quarantine on a nationwide basis. The central finding in the case was that the lockdown was lawful and authorised by the Health Act. The Law Society’s submissions took the same position as the Director-General on this aspect of the proceeding.

However, the Court also concluded that for the first nine days of the lockdown, there was an unlawful limitation of rights and freedoms of New Zealanders. The Court’s finding as to the unlawfulness related to public announcements made by the Prime Minister and various other officials during this period that directed all New Zealanders to be confined to their homes and to stop all interactions with others outside their immediate household or “bubble”.

Dr Borrowdale claimed those directions went beyond the terms of the 25 March order and had no legal basis. He argued that the announcements therefore unlawfully limited various rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990, including rights to manifest religion and belief, freedom of assembly, freedom of association and freedom of movement.

The Law Society submitted similarly that there was a disjunct between the Government’s public announcements and the formal restrictions imposed by the 25 March order. Because of this disjunct, the public announcements were unsatisfactory in terms of the rule of law. The Law Society’s submission was that the Government should not have directed the public in mandatory terms to behave in certain ways, when those directions were not backed by the force of law. The situation was, however, remedied by the 3 April order.

The Court agreed that the 25 March order did not impose any legal obligation on New Zealanders to stay home and in their bubble – and yet people stayed home and in their bubbles because they believed they had to do so as a consequence of what the Government had told them. The restrictions that were imposed by way of public announcements between 26 March and 3 April went beyond the terms the 25 March order and effectively limited New Zealanders’ freedom of movement, assembly and association. The Court therefore concluded that the announcements were 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 Court emphasised that the rule of law requires the law to be accessible, intelligible, clear and predictable, and the Government’s public announcements failed to meet those requirements.

The Court was also careful to put its finding in perspective, recording that 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”.

Nevertheless, the Court considered that its constitutional role in keeping a weather eye on the rule of law assumed particular importance in times of emergency. The weighty rule of law considerations in this case therefore warranted making the following declaration:

“By various public and widely publicised announcements made between 26 March and 3 April 2020 in response to the Covid-19 public health crisis, members of the executive branch of the New Zealand Government stated or implied that, for that nine-day period, subject to limited exceptions, all New Zealanders were required by law to stay at home and in their ‘bubbles’ when there was no such requirement. Those announcements had the effect of limiting certain rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 including, in particular, the rights to freedom of movement, peaceful assembly and association. While there is no question that the requirement was a necessary, reasonable and proportionate response to the Covid-19 crisis at that time, the requirement was not prescribed by law and was therefore contrary to the New Zealand Bill of Rights Act.”

Our role as intervenor

An “intervenor” is a party appointed by the Court to assist it with a particular case, usually one that involves issues of general and wide importance.

The Court takes into account the relevant expertise or the unique position of an intended intervenor as well as the impact of the intervention on the hearing.

The Law Society applied to intervene in the Borrowdale case on the grounds that the issues raised were of general and wide public importance, and concerned the operation of the rule of law and the administration of justice in the context of the Government’s response to the Covid-19 pandemic.

The High Court granted leave to the Law Society to intervene, on the basis that it represents the legal profession in New Zealand and had the ability to draw on the expertise of its specialist committees to address the issues raised in each cause of action. 

A note from the Law Society President

“The Borrowdale judicial review was an important case for New Zealand, and it was critical that all aspects of the legal position were considered.

“The proceedings were important for the operation of the rule of law and the administration of justice, and were of significant public interest.

“I would like to express my deep and personal gratitude to the Law Society’s counsel – Tim Stephens, Jonathan Orpin-Dowell and Monique van Alphen Fyfe – for their Herculean effort in representing the Law Society in this proceeding.”

Tiana Epati

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