New Zealand’s final days in lockdown saw an Anzac Day unlike any other, cautious optimism from leaders that we have eliminated the virus, and backlash from the opposition. Video / Chris Tarpey / Mark Mitchell / Kasun Rubasinghe
A lawyer challenging the legality of New Zealand's coronavirus lockdown said no matter how urgent something was, the Government must still obey the law.
A judicial review into whether the lockdown was legal began in Wellington today, with members of the public pouring in to the courtroom to hear the arguments.
Wellington lawyer Andrew Borrowdale is working to determine whether director general of health Ashley Bloomfield had the legal authority under the Public Health Act to effectively shut the country down and to order people to stay at home unless they had good reason for being out.
The three-day hearing started in the High Court at Wellington this morning before a panel of three judges, including Chief High Court Judge Susan Thomas.
Barrister for Borrowdale, Tiho Mijatov, said if the lockdown restrictions had a basis in law, he would accept they were justified.
But no matter "how well meaning, how necessary or how urgent" a measure was, the Government is ruled by the law.
There was "both general and ancient authority" to support that a government cannot take any restriction action without having "a positive basis in law", he said.
The public announcements made by the Prime Minister and others "requiring us to do things on pain of enforcement by the police" breached New Zealanders' rights, he said.
Mijatov quoted from Jacinda Ardern's March 23 press conference, during which she announced the country would go into lockdown, highlighting her use of the words "enforcement" and her summary of what "will" happen and what people "must" do.
"It's unmistakable that the Prime Minister was telling all people in New Zealand what they had to do.
"I'm not challenging the innocuous statements where the Ministry of Health puts up a meme and says 'wash your hands' ... I'm challenging the statements where the Prime Minister tells the nation 'here's what has to happen and there will be no tolerance if it doesn't happen'."
Crown Law advice - leaked during the lockdown to Newstalk ZB - suggested Bloomfield did not have the required authority to impose lockdown, which would throw into question all the arrests made during it.
The same advice was used by the former Deputy Police Commissioner Mike Clement to warn his district commanders about the thin ice they were on when it came to making orders in the name of Covid-19.
Attorney General David Parker has insisted the leaked Crown Law advice was a draft copy, even though it had the same serial number as the advice used by Clement to warn his officers.
Borrowdale, a former legal draftsman at Parliament, is seeking a judicial review of the lockdown handling.
The New Zealand Law Society is also party to the action, but their role as intervenor is neutral and independent of the parties to the case.
Law professor Andrew Geddis said the case "is very much a serious one in terms of raising issues that the legal world think are both genuinely uncertain and important".
He said if the judicial review finds the lockdown rules were legally invalid it would have implications for anyone charged with breaching the rules.
Geddis said Borrowdale was raising concerns in a proper fashion, unlike another private case taken by two men which failed, after they appealed the High Court finding.
In that case, two men sued Prime Minister Jacinda Ardern over what they claimed was an unlawful detention during lockdown.
Dermot Gregory Nottingham and Robert Earle McKinney challenged the Government's decision to confine people to their homes with habeas corpus claims, a 900-year-old legal procedure challenging detention without justification.
Their case, which brought claims against Ardern, Bloomfield and Civil Defence director Sarah Stuart-Black, was dismissed by the Court of Appeal in May.
Parker has dismissed any claims of illegality by the Government.
An earlier version of this story/editorial said that the Criminal Bar Association and Auckland District Law Society were parties to the action by Borrowdale. They are not. The Herald apologises for the error.
