Andrew Borrowdale leaving the High Court in Wellington during an adjournment in the hearing challenging New Zealand's lockdown Photo / Mark Mitchell
Andrew Borrowdale leaving the High Court in Wellington during an adjournment in the hearing challenging New Zealand's lockdown Photo / Mark Mitchell
EDITORIAL:
What, we ask, is the point of wasting precious court time in challenging director general of health Ashley Bloomfield's lockdown of the nation in March to avert the catastrophic Covid-19 coronavirus pandemic?
Former parliamentary counsel and law drafter Andrew Borrowdale has put the question to the test, asking theHigh Court to rule lockdown level 4 and 3 illegal. He claimed Bloomfield exceeded his powers.
The New Zealand Law Society also joined in, albeit as neutral and independent of the parties to the case. After hearing submissions this week, the High Court has reserved its decision.
In May, Newstalk ZB political editor Barry Soper revealed leaked emails from police command show how legally exposed they felt when the country was ordered into lockdown.
Emails from Deputy Commissioner Mike Clement to district commanders and to now Commissioner Andy Coster showed a Crown Law opinion warning police they had little or no heft to enforce the lockdown.
Tiho Mijatov represents Andrew Borrowdale in his civil claim over the legality of parts of the coronavirus lockdown. Photo / Kevin Stent, pool
This remained the situation for the first two weeks of the Government orders before Bloomfield cited the outdated Health Act to issue specific regulations. Some experts believe that Act was the wrong one to use and the Civil Defence Emergency Management Act would have been more appropriate.
Three days after the lockdown, and before the regulations were enacted by Bloomfield, Clement emailed his officers telling them police powers did not extend to roadblocks or pulling people over for the purpose of checking whether they were complying with the lockdown. The powers, he advised, only applied when a breach was obvious.
Clement said officers "cannot direct anyone to do anything unless it is quite extreme in its nature and with direct and significant impacts for the health of others".
"It is unlawful to do so and we shouldn't be doing it."
Chief High Court Judge Susan Thomas, hearing Andrew Borrowdale's civil claim over the legality of parts of the coronavirus lockdown. Photo / Kevin Stent, pool
Questioned on the police quandary, Prime Minister Jacinda Ardern conceded it would be worthwhile stepping back and looking at whether the legislation used had been appropriate for the pandemic.
Law professor Andrew Geddis has previously pointed out if the judicial review finds the lockdown rules were legally invalid, it would have implications for anyone charged with breaching the rules.
He says that lockdown powers now available to the Government to deal with the coronavirus have been clarified under the Covid-19 Public Health Response Act 2020.
On March 25, the "team of five million" were ordered into full lockdown and, whether seeing the dire need and understanding the purpose or fearing the consequences of enforcement, largely complied. The new legislation says people must "comply with any specified measures" that are deemed to help stem the risk or spread of a Covid-19 outbreak.
Should a new lockdown be required, either in a particular local area or nationwide, the legislation outlines the steps involved in authorising it and could allow additional tools to be introduced to the kit to fight Covid-19. For instance, study data in the past few months has supported the effectiveness of mask-wearing. Earlier this year Bloomfield said the evidence on masks was mixed.
What virus-combating measures are used will depend on the circumstances of any outbreak. But a future lockdown could include tweaks to the formula.
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. The story has also been updated to include extra information about lockdown powers.
