Challenge to legality of lockdown succeeds in New Zealand
21 August 2020
Even in times of emergency, … and even when the merits of the Government response are not widely contested, the rule of law matters.
Thus commenced a lengthy judgment by the New Zealand High Court, Wellington Registry, ruling that the first nine days of New Zealand lockdown were unlawful. The three judge panel found that
While there is no question that the requirement was a necessary, reasonable and proportionate response to the Covid-19 crisis at the time, the requirement was not prescribed by law and was therefore contrary to section 5 of the New Zealand Bill of Rights Act.
The claimant, Mr Borrowdale, challenged the legality of three health Orders issued by the government between March and May 2020. These Orders reflected and gave effect to the NZ government’s international obligations under the International Health Regulations 2005 to protect the health of its people and to take measures to prevent the spread of infectious diseases both within and beyond the country’s national borders.
The potential tension between the right to health and other human rights is obvious. Indeed, it is recognised in art 3(1) of the IHR, which states that their implementation “shall be with full respect for the dignity, human rights and fundamental freedoms of persons”.
The Crown argued that the statements made by the Prime Minister and the first and second Respondents had been only strongly worded advice, not commands. But the Court found that they had overstepped the mark. The authorities should have written the order into law before using the threat of police detention to keep people inside.
The focus of Mr Borrowdale’s claim was on certain coercive elements of public announcements by the authorities:
To be absolutely clear: we are now asking all New Zealanders who are outside essential services to stay at home and to stop all interaction with others. (Prime Minister Jacinda Ardern)
The Police Commissioner was quoted on a website as saying:
The way I put it is, you’r better to stay on the comfort of your own couch in your own home than be cooling yourself on a very cool bench in a police cell. [para 150]
And the Prime Minister noted the possibility of Police enforcement at a press conference:
If someone is outside and has no explanation, [Police] will remind them of their obligations, and if they believe they need to, they can take other enforcement actions.”[para 156]
These statements were “replete with commands”, with the word “must” and references to enforcement action against rule-breakers. There was no suggestion the statements were deliberately misleading. But they created the overwhelming impression that compliance was required by law. It would be “quite unreal” to interpret the statements as requests for voluntary compliance, said the court.
The Court observed the “dichotomy” between the importance of encouraging voluntary compliance and this threatened use of coercive power – and that lay at the heart of the claimant’s first cause of action. The statements from the Prime Minister “carried with them the full authority of her office and the State” [para 187]. The Court therefore rejected the Crown’s submission that their restrictive measures did not engage or limit the NZBORA rights because citizens voluntarily complied with them:
There is a material difference between voluntary compliance with an instruction and enforced compliance [para 194]
Statements by those in power that require rights-restrictive actions, coupled with threats of enforcement, are sufficient to constitute a limit on those rights. [para 198]
The Court’s findings
The Court accepted the claimant’s contention that freedom of association was engaged by the quarantine and closure Orders because it is a right that encompasses an individual’s right to associate with any other individual. It is not concerned solely with the ability to form and belong to associations such as trade unions or professional societies.
In other human rights systems, such as the European Court of Human Rights, a narrow view of the ambit of free association is acceptable since the right to associate with other individuals in an informal, disorganised way would likely to be protected to the right to privacy or autonomy. The absence of such rights from the New Zealand Bill of Rights Act meant that it was legitimate for the right of free association to occupy the field “that its ordinary meaning suggests”. (Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd edition, LexisNexis, Wellington, 2015) at 778.)
Mr Borrowdale asserted that the restrictive measures imposed between 26 March to 3 April formed part “of the most substantial suite of restraints on individual liberty in New Zealand’s history.”
The Court found that the relevant statutory provision, Section 70 of the 1956 Health Act, was only intended to facilitate “an immediate and urgent response to a public health crisis. They cannot sensibly be regarded as providing the framework for a longer term response”. [para 102]
the s 70(1)(f) power cannot be exercised retrospectively or by implication. Making such a requirement carries with it a statutory power to enforce it with criminal sanctions. It follows that – even if not recorded in writing – a s 70(1)(f) power must be exercised unequivocally, and the requirement must be articulated precisely. That is what the rule of law requires. So it cannot be said that the Restrictive Measures were imposed pursuant to s 70(1)(f). [para 216]
During the 9 days in question the court found that there had been in fact no legal obligation for compliance with the Restrictive Measures. And that was not what was conveyed by the Statements that articulated them. It followed that any limits on rights that were implicit in the Restrictive Measures were not prescribed by law.[para 225]
The Crown referred the Court to the Dolan case, where the English Divisional Court declined leave to commence a judicial review on the grounds that it would serve no practical purpose. (Dolan v Secretary of State for Health  EWHC 1786 and see my post on that challenge). The NZ Court did not find that case of any assistance. Simon Dolan had sought orders that the UK regulations be quashed, not a declaration. And at the time of the hearing, those regulations had already been replaced.
The question of whether to issue declaratory relief was “finely balanced”. Although the Court concluded that there had been for nine days an unlawful limitation of certain rights and freedoms, that must be seen in the context of the rapidly developing public health emergency the nation was facing. On the other hand, the rule of law requires that the law is accessible and, so far as possible, intelligible, clear and predictable.
The required clarity was lacking here. Although the state of crisis during those first nine days goes some way to explaining what happened, it is equally so that in times of emergency the courts’ constitutional role in keeping a weather eye on the rule of law assumes particular importance. For these reasons we conclude that it would be appropriate to make a declaration. 
The terms of the declaration were as follows:
By various public and widely publicised announcements made between 26 March and 3 April 2020 in response to the COVID-19 public health crisis, members of the executive branch of the New Zealand Government stated or implied that, for that nine-day period, subject to limited exceptions, all New Zealanders were required by law to stay at home and in their “bubbles” when there was no such requirement. Those announcements had the effect of limiting certain rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 including, in particular, the rights to freedom of movement, peaceful assembly and association. While there is no question that the requirement was a necessary, reasonable and proportionate response to the COVID-19 crisis at that time, the requirement was not prescribed by law and was therefore contrary to s 5 of the New Zealand Bill of Rights Act. [para 292]
Implications of this ruling
In his response to the judgment the Attorney General, David Parker, said
We always thought we were acting legally all of the way through.
Now it has been settled that they did not, it is possible that anyone arrested or detained from March 26 to April 3 as a result of the lockdown orders may make a claim for compensation for wrongful conviction and false imprisonment. And Auckland University of Technology Professor of Law Kris Gledhill has observed that “Even arrests after April 3 will have been improper.”