Lockdown ‘only a little bit’ unlawful

Opinion: The legal challenge over lockdown is a final step to protect the health of the community in a lawful and appropriate way, writes Edward Willis.

The northwestern motorway at rush hour, empty during the Covid-19 Level 4 lockdown which has been ruled "a little bit" unlawful. Photo: Megan Harvey Wikicommons CC-BY-SA-4.0

Yesterday, the High Court ruled that the Government’s ‘lockdown’ response to the Covid-19 public health emergency was unlawful, but only a little bit. If that seems a strange legal conclusion it reflects a complicated clash of legal values playing out in the fraught context of a genuine public health emergency.

The lawfulness of the lockdown has been of interest to lawyers and academics for some time. Even before this particular case, brought by a Mr Andrew Borrowdale, was filed, there were cogent arguments made that a nation‑wide lockdown simply went beyond the powers of the Government as set out in the Health Act 1956.

Lawyers read power‑conferring rules like these in context to give dry legal terms real‑world meaning. But here was a case where the correct context to read the Health Act was contested. Read against the context of trying not to unduly limit the fundamental freedoms of movement, the Health Act powers looked limited. Perhaps the power to confine people to their homes, or to close places of business, applies only in respect of specific persons and particular businesses rather than the entire country.

On the other side of the debate, there were equally credible arguments that the Government’s action was lawful. When read in the context of responding to an evolving public health emergency, the power-conferring rules might be afforded more leeway. The emergency context the law was crafted for might point to a permissive interpretation. The broad, nation‑wide orders imposed by the Government would be lawful on this reading.

What made yesterday’s High Court decision both especially interesting is that the unique nature of the power‑conferring rules brought these different perspectives into direct conflict. The Herculean task for the Court was to choose between those two views.

Overall, the Court found that the emergency context was the correct lens to apply. Government was being empowered rather than restricted by the relevant law, and that was appropriate given that we can’t know ahead of time what sort of response a public health emergency might need. Where the Government issued formal order to close businesses (except for essential services) and stay at home (except for essential workers) it had the legal authority to do so.

This should be reassuring to lawyers and non‑lawyers alike. The Government took serious action that curtailed basic freedoms when it issued and enforced its lockdown orders. That those orders have faced serious legal challenge and come through largely unscathed says something commendable about the systems and processes on which our government operates.

The rule of law requires that we are able to challenge possible instances of government over‑reach, so that a well‑meaning government does not set a convenient precedent for an indolent or irresponsible cohort of political officer‑holders. Asking the difficult question and getting the right answer back is the absolute best we can hope for when our government takes this kind of extraordinary action.

The Government’s defence of its actions did come up short in one respect, however. In the first nine days of the lockdown, there was no official stay‑at‑home requirement in the Director‑General’s formal orders. This means that there was no legally enforceable means of requiring people to isolate at home in their own bubbles until a further order was issued almost a week and a half later. The High Court found that during those nine days, the Government made public statements indicating that New Zealanders should self‑isolate, and that they may face punishment if they did not. Making those statements may well have been an appropriate response given the unfolding public health crisis, and many New Zealanders would be happy that they followed the advice. But the lack of a formal basis for those instructions mean that the Government infringed our basic rights without lawful justification.

The Court made a formal declaration to that effect in the case, essentially announcing to the Government that it failed to satisfy one aspect of its rule of law obligations. This finding will provide important guidance to future governments on how to exercise these kinds of powers properly, and helps vindicate the decision to bring this legal challenge. But it will not retroactively undo any of the Government’s ‘lockdown’ instructions or formal orders.

Finally, it is worth emphasising that this legal action was not a challenge to the soundness of the Government’s response in public health terms. Many non‑lawyers have expressed surprise or even exasperation that this legal action was taken at all, given the apparent success of the Government’s ‘go hard, go early’ policy. But the legal action is better thought of as a final step in a system of checks and balances that looks to protect the health of the community in a lawful and appropriate way. A modern constitutional democracy should both empower government to protect us in an emergency and respect the law. Borrowdale’s court challenge shows us that in this instance the Government has largely succeeded in meeting both these important goals.

Dr Edward Willis is a lecturer at the Faculty of Law.

This article reflects the opinion of the author and not necessarily the views of the University of Auckland.

Used with permission from Newsroom Lockdown ‘only a little bit’ unlawful 20 August 2020.

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