Fergus Whyte

On 19 August 2020, the New Zealand High Court issued its judgement in a challenge that had been brought to determine the lawfulness of that country’s initial COVID-19 lockdown measures.

The High Court has jurisdiction in more serious civil and criminal cases as well as in judicial review (equivalent to the Outer House and High Court of Justiciary). Its decisions can be appealed to New Zealand’s Court of Appeal and in certain cases to the country’s Supreme Court. While it normally sits with a single judge, the importance of this case is illustrated by the use of a panel of three judges including the Chief High Court Judge.

The challenge was brought by Andrew Borrowdale, a lawyer and former Parliamentary drafter, against the chief civil servant of the Ministry of Health (the Director-General) and the Attorney-General. The case involved three causes of action alleging that the restrictions imposed were unjustified limitations on the rights of freedom of assembly, association and movement protected by the New Zealand Bill of Rights Act 1990 (the NZBORA) (an act with both a number of similarities to and differences from the Human Rights Act 1998).

The three causes of action concerned:

1. The lawfulness of directions and public announcements given by the Prime Minister (Jacinda Ardern) and others during the first nine days of the lockdown;
2. The lawfulness of three public health orders made by the Director-General (D-G) in March and April) under emergency powers conferred under the Health Act 1956; and
3. An argument that part of the D-G’s first order was invalid because it unlawfully delegated some of the D-G’s powers to other officials.

The High Court chose to begin with the legality of the lawfulness of the three orders made before turning to the first cause of action concerning the public announcements. In this respect, it had to consider how the D-G’s power to make public health orders was to be interpreted in light of the rights found within the NZBORA. If the court found that those provisions had been breached it would then need to consider whether such a limitation of rights were “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” under s 5 of the NZBORA.

In interpreting the power to make the orders, the court was keen to point out that such public health powers are restrictive and that they can cause personal liberties to yield to the greater good but that their exercise is limited both in their triggering circumstances and their duration with Parliament being required ultimately to pass appropriate bespoke legislation to provide a longer-term response (as it did with the COVID-19 Public Health Response Act 2020 of 13 May). After considering in detail various points of challenge to the interpretation of the enabling power for the orders, the court held that when interpreted in light of its purposes and context, that power was sufficient authority for the making of the orders disposing of the second cause of action.

Turning then to the first cause of action, the court focused on the announcements made by the Prime Minister and others during the first nine days of the lockdown put in place by the New Zealand government. In various statements and communications, New Zealanders were directed in broad, and seemingly mandatory, terms to stay at home and avoid associating with others outside their households. This included statements that the government would take steps to enforce the lockdown if people did not comply with these directions.

The challenge to these statements was that they went beyond what was actually provided for, in terms of the extent of restrictions on normal activities, by the first public health order that was made and that this level of restrictions were only actually provided for in the second order nine days later. The directions of the PM and others were said therefore to be state actions which restricted or suspended rights normally available to New Zealanders without a lawful basis. This was said to be a “pretended power of suspending of laws” by the executive contrary to s 1 of the Bill of Rights Act 1688 (which was received into the laws of New Zealand as a former colony). In doing so, the challenge drew on the famous NZ constitutional case of Fitzgerald v Muldoon ([1976] 2 NZLR 615) in which that ancient provision had been successfully used to strike down the actions of a previous PM, Robert Muldoon.

Read the full article on the website of our sister publication, Scottish Legal News