6 May 2020

Was Covid-19 lockdown legal? Professor Claudia Geiringer explains

From Checkpoint, 5:07 pm on 6 May 2020

Have New Zealanders been confined to their bubbles illegally, according to the law? 

Former parliamentary counsel and law drafter Andrew Borrowdale is putting the question to the test, asking the High Court to rule lockdown level 4 and 3 illegal. He is arguing that Director-General of Health Dr Ashley Bloomfield exceeded his powers.

Borrowdale's claim for a judicial review follows ongoing questions from academics, lawyers and even from within the police, about whether restrictions and enforcement are legal under the legislation used. 

On Wednesday, Epidemic Response Committee chair Simon Bridges announced plans to summon the Solicitor-General, the Director-General of Health, and the Police Commissioner, as well as seeking all legal advice on the lockdown and ongoing restrictions.

"I'm in the camp that thinks the Ardern Cabinet are doing a magnificent job overall in managing an incredibly complicated regulatory challenge, but the problem is that they've inherited a legal framework for managing a public health crisis that in the view of a number of experts hasn't turned out to be sufficiently nimble," constitutional and parliamentary law expert Professor Claudia Geiringer told Checkpoint.

"The argument centres on these powers in the Health Act, which are at the heart of how the lockdown has been enforced.

"The key argument is that these powers are 'ultra vires', which means they go beyond their legal power, they go further than the law actually allows. 

"The key argument relates to … a couple of orders that Ashley Bloomfield has made requiring us all to stay home, and the orders claim authority from a clause in the Health Act that says that in an epidemic a medical officer of health can require persons to be isolated, quarantined or disinfected. 

"So the Director-General said, 'the law says I can put people in isolation or quarantine, so I'm putting all of you - the whole country - into quarantine, isolation.' And the argument is that it's not clear the statute actually contemplates a direction to the community at large, as opposed to a medical officer quarantining, say, a particular infected individual," Prof Geiringer said.

"It looks like some of the powers that have been relied on really may be more focused on making a requirement in relation to named individuals. And just to be clear, that's not a slam dunk. There's room for different views on this, and it may or may not succeed in court."

It matters for two reasons, Prof Geiringer said. 

"The first is that these are some of the most extensive coercive powers ever to be exercised in this country's history. Personally, I'm comfortable that they're being exercised for good reason. But in a democracy when the state's exercising coercive power, we want those powers to be authorised by our elected Parliament, and we want them to be authorised in the clearest possible terms, so that we can all know our rights and responsibilities. 

"One other reason I think this really matters is that I think underlying this challenge there's a significant underlying problem with the current law, which is that the power is located in the wrong place. 

"Cabinet's instinct throughout this period has been that important decisions about the timing and scope of the lockdown need to be made by them. And that's got to be right hasn't it - that these decisions are far too significant and multifaceted to be reposed in a medical officer of health, but that's what the law currently does. 

"In fact, if the Director-General has placed undue weight on Cabinet's views in making these orders, that could actually give rise to an additional ground of legal challenge, because the statute doesn't actually give any power to Cabinet.

"Cabinet has the power to put us into a State of Emergency … the minister does … and also to trigger the Epidemic Preparedness Act. But once they've done that, the specific coercive powers on which the police have primarily relied … all of that detail, it's not actually for Cabinet, it's for the Director-General of Health. 

"Probably the Director-General of Health is entitled to take Cabinet's views into account. But there's at least an argument that he cannot be unduly influenced by them, because the decision in the statute is conferred on him," Prof Geiringer said.

"I think there's a very strong argument that some of the orders are 'ultra vires' … illegal [in laypeople's terms] but the law in New Zealand in the end is what the courts say the law is.

"And you can expect that a judge faced with this complaint at this particular moment, might give the government an awful lot of leeway. So I'm not particularly keen on predicting what a court might do here. 

"But what I would say is that I don't think it's satisfactory for us as a community to have such significant coercive powers based on such slight legal authority. I think we need a legal regime that better reflects what the government is trying to achieve.

"None of the arguments in this particular legal case that's been brought are that the law couldn't or shouldn't provide that authority. The argument is that it doesn't. 

"So Parliament could meet tomorrow and shore up the legal powers. But the argument is that at the moment the powers that are being exercised are not there."

Request for confidential government advice 'a very dangerous precedent'

On a related issue, Parliament's Epidemic Select Committee has announced plans to summons a variety of officials before the committee and wants to see all the legal advice that was given to the government and police about the lockdown.

"It's very important for the proper function of government in our country, that the government can receive confidential legal advice," Prof Geiringer told Checkpoint.

"I personally think it's quite improper of the Epidemic Response Committee to try to require that advice to be disclosed. It's also very short-sighted of Simon Bridges because he seems to have momentarily forgotten that he might find himself in government one day. 

"So the Standing Orders ... do seem to authorise the summons. But the question is whether they're impliedly subject to an exception for legal advice. If I was the Solicitor-General, I would be tempted to refuse the request and let the Privileges Committee sort the issue out, because I think it's a very dangerous precedent."