21 August 2020 by

Andrew Borrowdale v Director-General of Health (First Respondent), the Attorney General (Second Respondent) and the New Zealand Law Society (Intervener) CIV-2020-485-194  [2020] NZHC 2090 

Even in instances of emergency, … and even when the deserves of the Authorities response are usually not extensively contested, the rule of regulation issues.

Thus commenced a prolonged judgment by the New Zealand Excessive Court docket, Wellington Registry, ruling that the primary 9 days of New Zealand lockdown had been illegal. The three choose panel discovered that

Whereas there is no such thing as a query that the requirement was a obligatory, cheap and proportionate response to the Covid-19 disaster on the time, the requirement was not prescribed by regulation and was subsequently opposite to part 5 of the New Zealand Invoice of Rights Act.

The problem

The claimant, Mr Borrowdale, challenged the legality of three well being Orders issued by the federal government between March and Could 2020. These Orders mirrored and gave impact to the NZ authorities’s worldwide obligations beneath the Worldwide Well being Laws 2005 to guard the well being of its folks and to take measures to forestall the unfold of infectious illnesses each inside and past the nation’s nationwide borders.

The potential rigidity between the fitting to well being and different human rights is clear. Certainly, it’s recognised in artwork 3(1) of the IHR, which states that their implementation “shall be with full respect for the dignity, human rights and basic freedoms of individuals”.

The Crown argued that the statements made by the Prime Minister and the primary and second Respondents had been solely strongly worded recommendation, not instructions. However the Court docket discovered that they’d overstepped the mark. The authorities ought to have written the order into regulation earlier than utilizing the specter of police detention to maintain folks inside.

The main focus of Mr Borrowdale’s declare was on sure coercive components of public bulletins by the authorities:

To be completely clear: we are actually asking all New Zealanders who’re outdoors important companies to remain at dwelling and to cease all interplay with others. (Prime Minister Jacinda Ardern)

The Police Commissioner was quoted on a web site as saying:

The way in which I put it’s, you’r higher to remain on the consolation of your individual sofa in your individual dwelling than be cooling your self on a really cool bench in a police cell. [para 150]

And the Prime Minister famous the potential of Police enforcement at a press convention:

If somebody is outdoors and has no rationalization, [Police] will remind them of their obligations, and in the event that they consider they should, they’ll take different enforcement actions.”[para 156]

These statements had been “replete with instructions”, with the phrase “should” and references to enforcement motion in opposition to rule-breakers. There was no suggestion the statements had been intentionally deceptive. However they created the overwhelming impression that compliance was required by regulation. It will be “fairly unreal” to interpret the statements as requests for voluntary compliance, stated the courtroom.

The Court docket noticed the “dichotomy” between the significance of encouraging voluntary compliance and this threatened use of coercive energy – and that lay on the coronary heart of the claimant’s first explanation for motion. The statements from the Prime Minister “carried with them the complete authority of her workplace and the State” [para 187]. The Court docket subsequently rejected the Crown’s submission that their restrictive measures didn’t have interaction or restrict the NZBORA rights as a result of residents voluntarily complied with them:

There’s a materials distinction between voluntary compliance with an instruction and enforced compliance [para 194]

Statements by these in energy that require rights-restrictive actions, coupled with threats of enforcement, are ample to represent a restrict on these rights. [para 198]

The Court docket’s findings

The Court docket accepted the claimant’s competition that freedom of affiliation was engaged by the quarantine and closure Orders as a result of it’s a proper that encompasses a person’s proper to affiliate with some other particular person. It’s not involved solely with the power to kind and belong to associations comparable to commerce unions or skilled societies.

In different human rights methods, such because the European Court docket of Human Rights, a slim view of the ambit of free affiliation is suitable because the proper to affiliate with different people in a casual, disorganised approach would prone to be protected to the fitting to privateness or autonomy. The absence of such rights from the New Zealand Invoice of Rights Act meant that it was official for the fitting of free affiliation to occupy the sphere “that its strange that means suggests”. (Andrew Butler and Petra Butler The New Zealand Invoice of Rights Act: A Commentary (2nd version, LexisNexis, Wellington, 2015) at 778.)

Mr Borrowdale asserted that the restrictive measures imposed between 26 March to three April shaped half “of essentially the most substantial suite of restraints on particular person liberty in New Zealand’s historical past.”

The Court docket discovered that the related statutory provision, Part 70 of the 1956 Well being Act, was solely supposed to facilitate “a right away and pressing response to a public well being disaster. They can not sensibly be considered offering the framework for a long run response”. [para 102]

Moreover,

the s 70(1)(f) energy can’t be exercised retrospectively or by implication. Making such a requirement carries with it a statutory energy to implement it with felony sanctions. It follows that – even when not recorded in writing – a s 70(1)(f) energy should be exercised unequivocally, and the requirement should be articulated exactly. That’s what the rule of regulation requires. So it can’t be stated that the Restrictive Measures had been imposed pursuant to s 70(1)(f). [para 216]

In the course of the 9 days in query the courtroom discovered that there had been in reality no authorized obligation for compliance with the Restrictive Measures. And that was not what was conveyed by the Statements that articulated them. It adopted that any limits on rights that had been implicit within the Restrictive Measures weren’t prescribed by regulation.[para 225]

The Crown referred the Court docket to the Dolan case, the place the English Divisional Court docket declined go away to start a judicial overview on the grounds that it might serve no sensible objective. (Dolan v Secretary of State for Well being [2020] EWHC 1786 and see my post on that problem). The NZ Court docket didn’t discover that case of any help. Simon Dolan had sought orders that the UK laws be quashed, not a declaration. And on the time of the listening to, these laws had already been changed.

Reduction

The query of whether or not to difficulty declaratory aid was “finely balanced”. Though the Court docket concluded that there had been for 9 days an illegal limitation of sure rights and freedoms, that should be seen within the context of the quickly growing public well being emergency the nation was going through. Then again, the rule of regulation requires that the regulation is accessible and, as far as doable, intelligible, clear and predictable.

The required readability was missing right here. Though the state of disaster throughout these first 9 days goes some strategy to explaining what occurred, it’s equally in order that in instances of emergency the courts’ constitutional function in conserving a climate eye on the rule of regulation assumes explicit significance. For these causes we conclude that it might be acceptable to make a declaration. [291]

The phrases of the declaration had been as follows:

By numerous public and extensively publicised bulletins made between 26 March and three April 2020 in response to the COVID-19 public well being disaster, members of the chief department of the New Zealand Authorities acknowledged or implied that, for that nine-day interval, topic to restricted exceptions, all New Zealanders had been required by regulation to remain at dwelling and of their “bubbles” when there was no such requirement. These bulletins had the impact of limiting sure rights and freedoms affirmed by the New Zealand Invoice of Rights Act 1990 together with, particularly, the rights to freedom of motion, peaceable meeting and affiliation. Whereas there is no such thing as a query that the requirement was a obligatory, cheap and proportionate response to the COVID-19 disaster at the moment, the requirement was not prescribed by regulation and was subsequently opposite to s 5 of the New Zealand Invoice of Rights Act. [para 292]

Implications of this ruling

In his response to the judgment the Lawyer Basic, David Parker, stated

We at all times thought we had been appearing legally the entire approach by means of.

Now it has been settled that they didn’t, it’s doable that anybody arrested or detained from March 26 to April Three because of the lockdown orders might make a declare for compensation for wrongful conviction and false imprisonment. And Auckland College of Expertise Professor of Regulation Kris Gledhill has noticed that “Even arrests after April Three may have been improper.”

See my post on a similar decision within the South African Excessive Court docket Gauteng Division.