When New Zealand was placed into lockdown on the 25th of March, the Government issued an Epidemic Notice under s 5 of the Epidemic Preparedness Act 2006 and declared a state of national emergency under the Civil Defence Emergency Management Act 2002. This effectively granted the Government access to extraordinary powers that it would not usually have in order to ensure they were able to respond to the crisis that is COVID-19 in an efficient and uninhibited manner. It was those actions that allowed for s 70 of the Health Act 1956 to be unlocked from which the Director-General of Health, exercising the powers of a Medical Officer for Health, derived his powers to make directives to the public. All orders that were subsequent took the form of notices under s 70 of the Health Act.
The problem that arises upon reading s 70 of the act is that there appears to be a fairly big gap between the powers that Parliament intended to grant under this section and the actual restrictions that were imposed by the Director-General of Health upon the nation.
On the 25th of March the relevant notice was issued under s 70(1)(m) of the Health Act. This order required the closure of all premises apart from those that were exempt, those being private dwelling houses and essential businesses. Under this order people were also banned from congregating in certain outdoor places and people who were permitted to leave their houses for something “essential” were to practice social distancing, keeping two metres apart from one another. It was under this notice that the lockdown began, however s 70(1)(m) of the Health Act offers no legal basis to require people to isolate, this section of the Health Act merely deals with the closure of premises. There is a substantive issue with the fact that the lockdown, which required strict isolation measures, was initially grounded on legislation that granted the Director-General to close premises as he saw fit.
On the 3rd of April, following concerns of where the legal footing was to require the public to stay at home in his earlier directive, Ashley Bloomfield made an order under s 70(1)(f) of the Health Act. Section 70(1)(f) of the Health Act gives the Director-General the power to require “persons” to be isolated or quarantined “as he sees fit”. While this section of the Act is more pointed to deal specifically with isolation, a basic reading of the words used in the legislation raises doubt as to whether this section was meant to be broad enough to cover the entire population. The words “persons” and “as he sees fit” imply that this legislation is to be applied on a case-by-case basis where there is reason to suspect that an individual may have COVID-19. Further, s 70(1)(h) expressly states that people can be required to isolate “until they have been disinfected or examined and found to be free from infection”. If s 70(1)(f) was intended by Parliament to be able to cover the entire population, then s 70(1)(h) would be completely redundant. The argument can therefore be made that Parliament did not intend for this legislation to be used to force the entire nation into lockdown as the section implies that isolation is to be determined on an individual basis, and that isolation ceases to be required if a person is found to be free from infection. In other words, s 70 does not contemplate the isolation or quarantine of a healthy population.
Unsurprisingly, there have now been cases brought against the Prime Minister for the unlawfulness of the lockdown restrictions. In A v Ardern, the applicant, A, made the argument that he and his family were subject to a detention under the orders made under the Health Act. The applicant in this case was already serving a home detention and sought a writ of habeas corpus, which is an order to determine whether a person’s detainment is lawful or not. The Judge found in this case that the restrictions imposed by the lockdown were not enough to be considered a “detention”. Any detention the applicant was subject to was due to his earlier conviction, not due to the lockdown. To the extent she had to determine the question, and doing so was unnecessary given her earlier finding, Peters J expressed the opinion that any detention would have been lawful. Her Honour had no difficulty construing s 70 as extending to the entire population.
On appeal, the Court of Appeal agreed that while the orders made impose restrictions on a person’s movements, they also permit a wide range of activity. The Judge noted that Mr. Nottingham (formerly referred to as A) was able to access businesses and services that have the relevant infection control measures in place, attend work where the relevant infection controls are in place and engage in appropriate outdoor exercise or recreation consistent with physical distancing. The Judge stated that due to the fact that detention could not be made out from the lockdown restrictions, questions regarding the lawfulness of lockdown generally, could not be properly addressed in the context of an application for habeas corpus.
While unsuccessful in the form of a habeas corpus claim, the lawfulness of the lockdown generally is something that needs to be scrutinised due to the extent of the restrictions that it placed on the nation. The Court of Appeal, in a subsequent case (Borrowdale v Director-General of Health) has said as much even though, in that case, it did not make an order transferring the case before the High Court directly to it. Throughout the lockdown the public were under the impression that a failure to comply with the Government’s orders would result in disciplinary measures from the police. Comments even went so far as to say that military enforcement may be used to ensure that people were not travelling between regions or travelling anywhere that was not deemed essential. Leaked Crown Law documents indicated that the New Zealand police held major concerns as to whether they actually had the power to restrict civil liberties. Attorney-General David Parker has since commented on his satisfaction that all powers have been used appropriately in facing COVID-19, although the leaked documents suggest that there was apprehension about where this authority was coming from.
It is difficult to criticise a government that has been so transparent throughout the COVID-19 crisis, particularly since New Zealand’s response to the pandemic has gained global attention and acclaim. However, the need for the Government to be held accountable when it does not abide by due process is at the core of New Zealand’s constitutional system. If we look back at one of New Zealand’s leading constitutional decisions Fitzgerald v Muldoon, a similar issue arose when Prime Minister Robert Muldoon attempted to abolish the superannuation scheme, something that only Parliament had the power to do. The separation of powers doctrine in New Zealand ensures that each branch of the three branches of government – the Judiciary, the Executive and the Legislature, acts independently of one another to ensure that there is a balance of power. In Fitzgerald v Muldoon, Muldoon was found to be acting as a regal authority which went beyond the power he actually did have and was consequently illegal. Comparatively, in the present case, if it is found the Government has acted outside of the scope of the powers it has been given by legislation, this will too be deemed illegal. That may seem a “bitter pill” for a government that has clearly acted in what it has perceived to be in the country’s best interests in the face of a crisis.
It is ultimately for the courts to determine whether a government official or agency has acted within the scope of the law by way of judicial review. Judicial review scrutinises the legal foundation on which a decision was made. Where a decision maker purports to act beyond the limited decision-making power they have been granted, or in some other way that does not comply with their statutory authorisation, they are ultra vires and their decision will be vitiated as such. Judicial review in the present case will turn on what the courts find was the intended extent of power granted to the health minister under s 70 of the Health Act. Judicial review is not an exercise in determining whether the right decision was made, but merely that it was made on the correct legal authority.
The significance if the Government is found to have been acting outside the scope that s 70 of the Health Act intended to grant is substantial. Firstly, and on a superficial level, if it is found that the Government did not have the requisite legal basis to require a nation-wide isolation then any arrests or charges made for breach of lockdown may be bereft of legal authority. Secondly, and of greater significance, is that fact that if the Government did not have the statutory authorisation to order the country into lockdown, then the fact that they have succeeded in doing so sheds light on a considerable constitutional issue. The Government will have been able to take control of New Zealand under the pretext that if they do not do so, thousands of people will die. It is important and at the very core of New Zealand’s constitutional system that even in times of crisis, the Government acts only in the way it has the power to do so.