About the Author

Avatar photo

Barry Brill

Was Level 4 a Step Too Far?

Print Friendly and PDF
Posted on

On March 23 2020, the CEO of the Health Ministry, the Prime Minister and the Police Commissioner made a joint televised announcement that every New Zealand business and school was to close, no social mixing was to occur, and every individual was to stay at home (‘Lockdown’). These decrees were to have the force of law for at least four weeks and the only exceptions were “essential services” (undefined). They would be enforced by the Police and all citizens were to obey under pain of imprisonment.

The Prime Minister described these measures as the toughest in the world and “the most significant restrictions on our people in modern history”. The word “modern” was misleading as neither New Zealanders nor their British forebears have ever witnessed the use of such extensive coercive powers.  Indeed, there seems to be no record of such a total demolition of citizen’s freedoms in any democracy anywhere at any previous time.

New Zealand’s unwritten constitution does not limit the exercise of such extreme legislative powers by Parliament – ie the House of Representatives which is elected by the people and is accountable directly to its electorate. The Parliament is sovereign.

But this Lockdown was not enacted by Parliament. Indeed, Parliament was given no prior notice of it and was never afforded an opportunity to debate it, or even to express an opinion. Pleading urgency and safety, members of the Executive Branch suspended the Parliament for the duration of the Lockdown.

The Civil Emergency Management Act 2002 expressly requires Parliament to meet within 7 days whenever a state of national emergency is declared. The Government avoided this procedure with the technical argument that Parliament was already in session.

Government lawyers deny that all these authoritarian edicts amounted to a constitutional outrage. They rely upon a 1956 statute under which the then Parliament delegated wide coercive powers to any Medical Officer of Health (MoH), in the event that a future Government declared a state of national emergency and issued an epidemic notice.

Whether that modest provision was capable of authorizing “unbridled power” some 60 years later is now the subject of an application for judicial review – Borrowdale v Bloomfield – which is expected to be heard before the Wellington High Court sometime next month. 

Andrew Borrowdale, a former parliamentary draughtsman and author of respected law texts, alleges that the “special powers” delegated by section 70 of the Health Act 1956 cannot provide Parliamentary authority for the entire populace to be locked up at home. While he accepts that all 11 components of Level 1 Alert (and perhaps Levels 2 and 3) were authorised by the section, he contends that all the Government’s Level 4 actions were “ultra vires” and unlawful

Mr Borrowdale’s Statement of Claim accepts that Ashley Bloomfield, as the Director-General of Health (D-G), was entitled to exercise district-by-district powers vested in MoHs to restrict the freedoms of specified individuals. But he then canvasses each of the three Health Notices and concludes that none of the D-G’s Level 4 decrees were authorised by paragraphs (f), (la) or (m) of subsection 70(1). He also objects to the D-G delegating to unnamed officials in MBIE the power to determine what was “essential” (and therefore which premises must be closed).

The Level 4 Notices were given teeth by the Prime Minister’s announcement that they would be strictly enforced by the New Zealand Police. In fact, the sole enforcement power is in section 91(1) of the Civil Emergency Management Act 2002, which empowers constables to give certain directions. We now know that the Crown Law Office had covertly warned the Police that their power was confined to directing persons who were believed to be infected with the COVID-19 virus.

The Claim adds:  “It is axiomatic that the liberty of the individual must not be infringed except by clear, express statutory authority. The freedoms of movement and association are fundamental human rights to which the Bill of Rights 1990 Act applies.

Whatever the intention of the Holyoake Government in 1956, section 6 of the New Zealand Bill of Rights Act 1990 (BORA) now directs the Courts to interpret every legal ambiguity in favour of individual freedoms. In effect, the Government now bears the burden of proof that the 1956 Parliament clearly intended to endow the D-G with Level 4 Lockdown powers.

The Statement of Claim seeks a formal declaration by the Courts that “nothing done in pursuance of Orders 1, 2 and 3” [which created Level 4] had or has any legal effect.”  Much of the local media commentary on the case has been concerned with the impact of such a ruling on police prosecutions under Level 4. However, law professor Kris Gledhill discusses the possibility that ‘stay at home’ orders might amount to wrongful “detention”, which would justify  compensation claims.

Prof Gledhill notes that section 22 of BORA guarantees that New Zealanders will not be arbitrarily detained. Whether Level 4 detention was ‘arbitrary’ depends on whether it was a last resort, with no other options being adequate.

Detention is not the only government wrong that could give rise to claims in tort.  BORA confers statutory rights to freedom of association (section 17), movement (section 18), and peaceful assembly (section 16).  At section 28, it preserves all freedoms and human rights including the 30 rights set out in the UN’s Universal Declaration of Human Rights. These include rights to work, rights to education and rights to property.  There is no room for doubt that the Level 4 Notices drove a bulldozer through all of these long-treasured rights.

Mr Borrowdale has recently filed an amended pleading which refers to Part 3A of the Health Act. This was a modernising addition passed by Parliament in 2016 which temper the wide powers conferred on a MoH by s 70. While recognising that public health is the key consideration, it requires respect for individual rights, and creates an obligation to inform individuals of their rights, including rights of appeal. There must first be an opportunity for voluntary compliance.

Importantly, Part 3A introduces significant restrictions on the scope of the DG’s power under the Health Act. Any Order must be proportional to the public health risk, and cannot be made in a arbitrary manner. It must be the least restrictive alternative available and must not be applied for longer than necessary. These are very considerable hurdles for Mr Bloomfield to surmount in justifying the Level 4 stay-at-home orders (instead of Level 2) and maintaining them for nearly five weeks.

Recognising the unique importance of the Level 4 issues, Mr Borrowdale’s efforts are now being supplemented by the New Zealand Law Society, which has intervened in a neutral role.   The Auckland District Law Society and the Criminal Bar Association also requested leave to join the proceedings with specialist support but leave was refused. Unusually the High Court will summon a Full Bench of judges – but that will not prevent legal issues from being appealed to the Court of Appeal and then (probably) to the Supreme Court.

Once a final decision is handed down, we can expect a flood of filings seeking damages from the Crown. This is especially the case if the Level 4 lockdown is ruled to be unauthorised and unlawful. Throughout the country, and all over the world, law firms that specialize in tort claims are salivating over the damages caused to their clients by government over-reach. As one such firm notes in its client newsletter:

“Plaintiffs’ lawyers and litigation funders have already begun capitalizing on the coronavirus disease 2019 (COVID-19) pandemic to bring or plan a significant number of COVID-19-related class actions. As of May 22, 2020, more than 440 COVID-19-related consumer class actions have been filed throughout the US. Canadian courts have seen 32 COVID-19-related class actions … These lawsuits are early indicators of class action litigation risk that will arise in other jurisdictions around the world this year and next year. We are already seeing plaintiffs’ lawyers trolling for plaintiffs for putative class action cases in multiple jurisdictions …”

A number of reasons why the New Zealand Government might seem especially vulnerable are discussed here. Was the Level 4 decision taken against evidence-based advice? Did it serve any useful purpose in saving lives? Was it taken by the D-G or the Prime Minister? Was there any cost-benefit assessment? Were the unvalidated models a reasonable basis for policymaking?

These and many more questions will be canvassed in coming weeks. Just as the Level 4 restrictions were unprecedented, the importance of this litigation is unprecedented in the annals of New Zealand Administrative and Constitutional Law.