Public has a role in accepting law

Laws underpin a civilised society – without them we would slide into a Lord of the Flies existence, a descent to savagery. For most of us, criminal and civil laws whirr away in the background, shaping our society but not breaking into our daily lives unless we do something to break them.

Covid-19 has changed all that. Faced with an extraordinary pandemic, governments around the world responded with extraordinary measures, restricting basic individual and business rights to stop the spread of the virus.

The question now being asked in New Zealand is whether those measures had a proper legal foundation. It’s been raised largely by academics, but it’s more than an academic question, even as it appears we are nearing the end of the most restrictive stay-at-home phase. If the lockdown orders were not justified it would, for example, open the way for damages claims by the hundreds who have been prosecuted for flouting them.

The central issue is whether a section of the Health Act 1956 gives director-general of health Dr Ashley Bloomfield the power to make his orders during alert levels 3 and 4, imposing measures such as home isolation and business closures or restrictions. Law drafter and former parliamentary counsel Andrew Borrowdale has filed for a judicial review, arguing Bloomfield has exceeded the powers conferred by that legislation; the Ministry of Health disagrees.

Borrowdale and others essentially say the Health Act provisions were designed to apply to specific businesses and affected people, not blanket orders covering the whole population.

It’s certainly an arguable position, as the Court of Appeal has already indicated in considering another lockdown challenge.

Leaked Crown Law Office advice yesterday added substantially more fuel to the fire, apparently saying police did not have power to enforce the initial lockdown order over, for example, whether people could visit others outside their bubble.

But there also needs to be a wider lens to judge the Government’s predicament in February and March, facing a largely unknown, rapidly developing outbreak.

With time of the essence, it was surely quicker to go with the existing powers, imperfect as they may be, than to draft and get parliamentary approval for new legislation. We don’t know what legal advice the Government had – that’s the subject of a whole other argument – but it is likely to have been another finely balanced step in the minefield that is Covid-19.

There is also another factor to take into account – the pragmatic approach taken by most New Zealanders who accepted the case made for isolating in our bubbles, and did so of their own accord. To many it wasn’t a case of legal interpretation or being motivated by a big enforcement stick – which would not have worked anyway – but rather by the greater good, temporarily trading off some of their own rights to protect those more vulnerable.

Those who have labelled such behaviour as meekly subservient are missing the point of collective action to achieve a goal that now seems within reach. But the fact that we have dissenting voices and legal challenges is a good indicator of a healthy democracy.

There will always be lessons learned from such a far-reaching crisis, from the preparedness of our health system to whether our laws are fit for purpose in a pandemic. An overhaul seems overdue.

So far the Government and its advisers have largely avoided missteps in the minefield, but the law courts and the court of public opinion need to have their say.

Those who have labelled [public] behaviour as meekly subservient are missing the point ...