Challenge to pandemic lockdown in New Zealand partially successful
A lawyer and former Parliamentary drafter took legal action against the Director-General for the Ministry of Health and the Attorney General contending that the Covid-19 lockdown restrictions imposed in New Zealand were unjustified limitations on the rights of freedom of assembly, association and movement protected by the New Zealand Bill of Rights Act 1990.
The case involved three causes of action: the lawfulness of directions and public announcements given by the Prime Minister and others during the first nine days of lockdown; the lawfulness of public health orders made by the Director General under emergency powers conferred under the Health Act 1956; and an argument that part of the Director General’s order was invalid because it unlawfully delegated some of the Director General’s powers to other officials.
New Zealand Law Society was granted leave to intervene in the proceedings as a neutral party and provided written and oral submissions to the court. The Society submitted that the proceedings “were important for the operation of the rule of law and the administration of justice, and were of significant public interest.”
Of the three causes of action, the High Court upheld the first claim in relation to the legality of the government directions and announcements during the first nine days of lockdown. The second and third causes of action were dismissed because the Court found that the orders were authorised by the Health Act 1956 and also found that the delegation of powers was not a breach of the rule of law.
It was submitted by the applicant that confining people to their homes and stopping all interactions with others outside the family home “unlawfully limited rights affirmed by the New Zealand Bill of Rights Act 1990”, specifically “to manifest religion and belief, freedom of assembly, freedom of association, and freedom of movement.” He argued that this was an exercise of “pretended power” by the government and therefore, was illegal.
The government defended their public announcements stating that they were giving mere guidance to the public and not commands. The Court did not agree and found that the announcements were “replete with commands: the frequent use of the word ‘must’, backed up by reference to the possibility of enforcement action for those who did not follow the ‘rules’”.
The Court concluded that the government’s announcements went beyond what were “reasonable limits prescribed by law”, as set out in section 5 of the 1990 Act, when commanding the public to stay indoors and to stop all interactions with others.
However, the Court emphasised that it understood that the government was acting during a state of national emergency, fighting a global pandemic; and therefore, there is no question that the requirement was a necessary, reasonable and proportionate response to the Covid-19 crisis at the time.
Click here for the full judgement.