On Friday night, the government quietly laid down some lockdown rules via a legal order under the Health Act. Law professor Andrew Geddis explains what it means for all of us (including David Clark). 

As the first week of level four lockdown unfolded, mounting questions grew as to just what was (and was not) allowed under its “rules”. Partly these were driven by some apparently contradictory messages from different authority figures and explanations carried in the media. Partly they reflected a somewhat sketchy legal basis for the lockdown itself; in particular, the notice under the Health Act 1956, s 70(1)(m).

Confusion on this matter extended all the way to the top, as demonstrated by health minister David Clark’s decision to take a short drive to a local mountain bike park and then ride up and back down a very gentle, well-graded trail. He clearly thought that this activity was within the rules. After taking heat in the media and talking with the prime minister, he realised he was “wrong” about this and so apologised.

(As it happens, I don’t think he actually was in the wrong here, as I’ll get to a bit later on. But, as with Pompeia, I guess the health minister “tam suspicione quam crimine carere oportet”. If you know what I mean, great. If you don’t, doesn’t matter … but you probably should read more.) 

In an effort to clarify such matters, on Friday evening the government quietly slipped out a new notice under a different provision of the Health Act 1956. This notice purports to do a couple of quite important things.

First of all, it sets out with some more specificity exactly what the level four rules are in respect of our public activities. Basically, we have to stay at our private residences except for “essential personal movement”. And what then counts as “essential personal movement” is set out in some detail.

We can go to those shops or services that are still open, but only to those within our territorial authority. No driving from Dunedin to Christchurch to buy a pie from the supermarket.

We can go to work, if we work at an essential service. We can move our family from home to home, if we’re in a shared bubble arrangement. We can move homes altogether if we need care while sick, to flee domestic violence, or if a court orders it.

And we can engage in physical exercise or other recreation in outdoor places, provided that the place can be “readily accessed from [our] residence”, that we keep two metres apart from “non-bubbled” others, and that we don’t engage in activities that “expose participants to danger or may require search and rescue services”.

That last exercise and recreation exception to the “stay at home!” requirement hopefully puts paid to some of the more censorious understandings of the level four rules. Yes, it actually is permitted to (say) drive five minutes to a local mountain bike park where there are few other riders, and then ride up and down a gentle, well-groomed trail at a reasonable speed. It may not be politick or wise to do so if you are the minister of health, but for the rest of us “the rules” do allow for it.

The second important thing that this new Health Act notice does is give these level four rules a much firmer legal footing. No one really has wanted to say it out loud for fear of undermining what needs to be a collective exercise, but it’s pretty apparent that the police actually couldn’t enforce many of the prohibitions we were being told were in place. And once that fact became common knowledge, via media stories like this one, there was a risk that general compliance with the level four lockdown requirements could suffer.

And so, this new notice is to be welcomed. It not only tells us with some greater clarity just what are “the rules”, it also provides a clear legal basis to enable the police to hold us to them. If they catch you launching a boat, or setting off for a 20km hike into the hills, or riding in a car with someone from outside of your bubble, or just loitering in the street because you are bored, they now have the lawful power to do something about it through arrest and charges.

But that should be the last, and hopefully infrequent, step. These rules won’t work if they just rest on the police officer’s strong arm. Rather, they should serve to remind us all of the collective obligation we have.

Stay home. Save lives.