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Andrew Geddis: High Court says lockdown unlawful for first nine days - Heather du Plessis-Allan Drive

Heather du Plessis-Allan Drive

The Government has no plans to re-write the law despite the High Court ruling that the first nine days of the nationwide Covid lockdown were unlawful, though justified.
New Zealanders were not actually required by law to stay at home in their bubbles until April 3, more than a week into lockdown, today's ruling has found.
"Even as this country returns to a state of semi-lockdown, there is one thing on which most commentators are agreed. The decisions taken by the New Zealand Government in March this year to "go hard and go early" were the right ones," said the High Court decision, released this afternoon.
"Even in times of emergency, however, and even when the merits of the Government response are not widely contested, the rule of law matters."
That was why Wellington lawyer Andrew Borrowdale sought a judicial review of the lockdown decision, asking for declarations of illegality in relation to three aspects of the Government's initial Covid-19 response.
The first focused on public announcements made by Prime Minister Jacinda Ardern and other officials during the first nine days of lockdown.
The other two aspects related to orders made under the Health Act 1956 by director general of health Ashley Bloomfield on March 26, April 3 and April 27, and the definition of "essential services". Those two aspects were dismissed by the court.
The first order made at the start of level 4 lockdown was a ban on congregating and the closure of non-essential businesses, but it did not require people to stay home and in their bubbles.
Those obligations were instead conveyed to the public by Ardern and other officials in media briefings from March 23 onwards. Borrowdale argued these further restrictions were not "prescribed by law" and therefore unlawfully limited some of the public's rights and freedoms under the New Zealand Bill of Rights Act
The court has agreed the statements conveyed New Zealanders were required - under threat of police enforcement - to stay at home in their bubbles, despite the fact it was not legally supported at the time.
Until Order Two came into effect on April 3, those restrictions were an unlawful limit on Kiwis' rights and freedoms.
The court did not find any laws were "suspended", and said the power to impose the restrictions existed but was simply not used until April 3.
The court recognised the state of emergency went some way to explaining what had happened, and declared the requirement was still a necessary, reasonable and proportionate response to the Covid-19 crisis at the time.
In an affidavit to the court, Bloomfield described the approaching wave of the pandemic, and said there was "only one shot" at stamping out the virus.
"We realised that 'go early' had changed to 'go right now', and there was no time left. What we thought could be done in two weeks or two days had to happen now: it was quite literally now or never," he said.
"The absolute priority was to get the lockdown in place and that drove every aspect of what we did over that period: we needed to move, and had no time to sort out the exact details. Some things would have to get sorted out later."
In the court decision, justices Susan Thomas, Geoffrey Venning and Rebecca Ellis concluded the effect of the statements from Ardern and other officials caused New Zealanders to believe they were required by law to stay home and in their bubbles when - for the first nine days - it was not the case.
They made a formal declaration that the statements made in the initial part of lockdown were not lawful, and therefore limited the rights of New Zealanders.
It's believed there will be few, if any, prosecutions affected by today's findings.
The other challenges
Bloomfield's first three orders under section 70 (1) of the Health Act 1956 forbade congregations, except for those with social distancing, required the closure of non-essential businesses, and required all people to be isolated or quarantined at home.
Borrowdale argued the orders went beyond th...
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