Govt lawyer says lockdown legal

The Government’s legal advice said the level 3 and level 4 lockdowns involved the most ‘‘significant and widespread’’ interference to human rights ‘‘in living memory,’’ which would only be lawful if the Government could prove those restrictions were justified.

It said that those restrictions could be justified based on the advice of health officials about what was necessary to save lives.

The legal advice comes from the solicitor-general, who advises the Government on the legality of its decisions. It was included in a Cabinet paper obtained by Stuff.

It warned that ‘‘the restrictions imposed at levels 3 and 4 of the alert system involve the most significant and widespread interference with human rights in New Zealand in living memory’’.

However, it went on to say that those limits ‘‘are only unlawful if they cannot be shown to be demonstrably justified’’.

The Government could justify the restrictions by proving that they were ‘‘a proportionate response to the objective of protecting the public health and lives of New Zealanders’’.

Attorney-general David Parker said the restrictions were justified. ‘‘The Government believes the restrictions it has imposed are a justified and appropriate response to the unprecedented risk Covid-19 poses to the health of all New Zealanders.

There is no vaccine, no cure and the health advice stressed the crucial importance of physical distancing.

‘‘As the PM has previously said: ‘These decisions will place the most significant restriction on New Zealanders’ movements in modern history. This is not a decision taken lightly. But this is our best chance to slow the virus and to save lives’,’’ Parker said.

The paper lists six ways the alerts could restrict domestic human rights obligations and three ways that they could

restrict international human rights obligations.

The restrictions on gatherings could limit two important human rights. The first is to practice a religion, as they ban stop people from worshipping in their regular way. The ban also infringes on the right to peaceful assembly – essentially the right people have to gather in groups.

The enforced quarantine of new arrivals could potentially amount to an ‘‘arbitrary detention’’. Human rights laws prohibit arbitrary detentions to stop Governments from locking people up on a whim.

These quarantines are particularly serious because they could be ‘‘contrary to’’ and ‘‘limit’’ the rights to ‘‘freedom of assembly, association and movement’’.

There is also a threat that those quarantine facilities raise human rights issues themselves.

If they fall below certain standards, they could ‘‘affect the right of persons deprived of liberty to be treated with humanity and respect’’.

Even the compulsory medical examinations could breach human rights – as they could constitute an unreasonable search, although again, the advice says that these examinations are reasonable under the circumstances.

Mandatory quarantines came into force after the level 4 lockdown, after the previous system of allowing new arrivals to isolate themselves at home for 14 days was found to be insufficient.

Changing from this relatively loose model to the much more stringent mandatory quarantine currently in force has serious human rights implications.

The advice argues that the restrictions are necessary to stop transmission.

Even the compulsory medical examinations could breach human rights.