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Wellington, August 19, 2020
The High Court released its judgment in the Borrowdale v Director-General of Health and the Attorney-General case.
It is a significant judgment in which all the Health Orders issued under the Health Act Alert Level 3 and 4 lockdown that started in March were lawful.
Attorney General David Parker said that the challenges that the Orders made to close premises New Zealand wide, except for essential services, to prohibit congregating in outdoor places and to require people to self-isolate and stay at home have all failed.
The current lockdown orders made under the Covid-19 Public Health Response Act 2020 are not affected by this judgment, he said.
The Verdict
The Court found that the March 25 Order closing premises providing non-essential services and prohibiting outdoor congregating was lawful. It also found that the Alert Level 4 Order on April 3 to stay at home and in our bubbles, and the Alert Level 3 order on April 24 were also lawful.
The Court also dismissed the argument that the list of essential services was unlawfully delegated to the Ministry of Business, Innovation and Employment.
It found that MBIE and other agencies were not defining essential businesses, but were assessing whether businesses met the criteria defined by the Order.
Bill of Rights breached
“It is very satisfying that these orders have been upheld. We can be confident in the Orders made and enforced. However, the Court did find that there was a breach of the Bill of Rights Act in the first nine days of the Alert Level 4 lockdown, because the original oral request for people to stay home and in their bubbles was not put in a formal order until April 3, 2020,” Mr Parker said.
He said that importantly the Court found that the requirement to stay home and in their bubbles was a necessary, reasonable and proportionate response to the Covid-19 crisis at that time.
The Court stated that the question was finely balanced. While it found an unlawful limitation on rights and freedoms for nine days it said, “that must be seen in the context of the rapidly developing public health emergency the nation was facing.”
Mr Parker said that the Court found the imperfection from March 25 to April 3 was cured by the April 3, 2020 Order,” Mr Parker said.
State of National Emergency
The Court also made the point that its findings have to be kept in perspective: the situation lasted for just nine days and occurred when New Zealand was in a state of national emergency fighting a global pandemic.
The Court also rejected the challenge that the Prime Minister had attempted to suspend the law, saying that the power to require all New Zealanders to stay at home was a power that could have been (and was, from April 3, 2020) exercised by a Health Officer under the Health Act.
Mr Parker said that the government was trying to educate people about the health risks and transition them quickly to take actions that curtailed normal freedoms like staying at home to stop the spread of the virus.
“In the end, the measures taken by the Government worked to eliminate Covid-19, save lives and minimise damage to our economy. Since April 3, 2020, orders implementing the Alert Levels have been made under the Health Act or under the new Covid-19 Public Health Response Act. The Court has not said that all urgent Covid-related restrictions to individual rights will be in breach of the Bill or Rights,” Mr Parker said.
He pointed to the Courts’ own decision on March 18, 2020, before the Alert Level system, to suspend all new jury trials “out of an abundance of caution” in the face of the Covid-19 threat.
“No decision on a possible appeal has yet been taken,” Mr Parker said.
Source: Office of Attorney General, Wellington
