Sasha Borrisenko
How legal was the lockdown?
The public has reached a verdict, they’ve had enough — as evidenced by the 104 breaches to social distancing rules in the first 18 hours of alert level 3. Tsk tsk.
The “go hard, go early” response has been heralded as an international success, but public law aficionados Andrew Geddis and Claudia Geiringer have taken to the UK International Law website to suggest the lockdown was possibly unlawful.
Geddis and Geiringer claim discussions around the lockdown’s legitimacy have been muted amid an “end has justified the means” sort of sentiment. They propose the “tenuous legal foundation of the lockdown regime represents a significant constitutional problem that needs to be addressed”.
Primarily, they argue the Health Act 1956 is not fit for purpose.
How the Government did it
The Government issued an epidemic notice under the Epidemic Preparedness Act 2006, and declared a state of emergency under the Civil Defence and Emergency Management Act, which together triggered executive government powers, namely the section 70 medical officers of health powers — cue le plat du jour director-general of health Ashley Bloomfield — which Geddis and Geiringer have described as “coercive”.
I’ve gone into these powers before in earlier columns, which were put into practice when Bloomfield had the mandate to make an order closing premises and forbidding people to congregate in any outdoor places of amusement or recreation under section 70(1)(m). The issue is that official government statements, coupled with police enforcement action promised to impose greater limits on civil liberties, namely to stay at home in one’s “bubble”, and not to go out unless absolutely necessary. After the fact, Bloomfield issued a notice around isolation, pursuant to s70(1)(f). It’s the combination of these subsections that gave police the ability to enforce compliance, supposedly.
So what’s the problem?
Geddis and Geiringer have questioned whether the s70 notices were ultra vires — beyond legal authority; that Cabinet may have suspended law without consent of Parliament contrary to the Bill of Rights; and that Bloomfield may have acted under dictation in the making of those orders.
What’s more, the list of essential businesses could be found via a different government department, but the Act doesn’t expressly allow
While the lockdown itself was necessary, the public has a right to know the legal advice which allowed it to happen.
for such a delegation. And it could be argued that we weren’t actually in isolation under s70(1)(f) given the broad scope around what was deemed as essential work.
And even so, the wording “require persons . . . to be isolated or quarantined” arguably means only individuals could be put in isolation or quarantine.
Confused? Well I sure am. Whether the notices are consistent with the Bill of Rights Act is a whole other kettle of fish. Limits on civil and political rights would have to be demonstrably justified, which is fair enough given the circumstances. But Geddis and Geiringer have stressed that perhaps the notices went too far insofar as surfing and magazine distribution weren’t okay, but cycling and newspaper distribution were, for example.
National’s Justice spokesperson Mark Mitchell has a bee in his bonnet about it too, saying “we have never experienced a situation in this country where people’s civil liberties have been eroded so quickly and without clear direction. While the lockdown itself was necessary, the public has a right to know the legal advice which allowed it to happen.
“We should also be able to see the advice the Government received for the initial four s70 notices. That way we can be certain Crown Law had advised police and others the powers they were given.”
Justice Minister Andrew Little declined to comment, deferring the matter to the Ministry of Health. Ministry of Health chief legal adviser Phil Knipe says the ministry is satisfied that the Health Act has been fit for purpose to date in responding to the pandemic.
Bloomfield has received ongoing legal advice, which is subject to legal privilege, he says, and went on to point to the Attorney-General’s advice relating to the exercise of powers, both to date and considerations about what may be required in future. (The document was released April 22, and before the paper by Geddis and Geiringer.)
What the courts have to say
Incredibly two people (who argued for name suppression for fear of receiving death threats) have taken the Prime Minister and Bloomfield to court (A v Ardern and B v Ardern), claiming they had been unlawfully detained thanks to the lockdown. One litigant was actually serving a sentence of home detention — but that issue was put to one side. That same person claimed the lockdown was not made for a proper purpose, but for other extraneous reasons, including to enhance Jacinda Ardern’s prospects of re-election, comparing her to Hitler, and that she had teamed up with Sir Stephen Tindall to ruin the economy. Incredible!
In both cases Justice Peters found the conditions of the lockdown didn’t amount to “detention”, and the lockdown was lawful in theory (saying “persons” could encompass the entire population). A vs Ardern went before the Court of Appeal last Friday where the matter was dismissed. The court said the issue of lawfulness should be addressed in expedited judicial review.
Where to from here?
Irrespective of these court decisions — as juicy as they may be — Geddis and Geiringer argue it’s time to put the lockdown regime on a more secure legislative footing, saying “no matter how ‘necessary’ these may be, we should expect such restrictions to have a clear, certain basis in law and be imposed through a transparent and accountable process”.
Mark Mitchell, justice spokesperson for National