As the question of whether the lockdown notices were lawful continues to fester, Andrew Geddis takes a deep dive into the issues at play.

Now that the threat of Covid-19 has been vanquished like The Beast in Krull – apparently struck down, but always threatening to rise again – we can pause and take stock of our collective societal response.

Doing so inevitably involves second-guessing decisions that of necessity had to be taken at great speed and on the basis of imperfect information. The contents of Friday’s “document dump” (also known as a proactive release of information on a day when nothing else much happens in government but threatens to mess with journalists’ weekends) attests to that. We therefore need to judge what government has done, and how it went about doing it, against that backdrop.

One way of examining those actions – by no means the most important way, but still of moment – is through a legal lens. Did the government’s actions comply with the law’s restraints on how public power may be used? If not, what then should follow from any such failures?

The following is a by-no-means complete summary of where we now are at with such questions. It is, however, still quite long. Sorry about that, but you know how us lawyerly types loves us our words!

The lockdown in court

Last week saw an application for judicial review filed in the High Court to challenge the legality of the level four and three lockdown rules. In essence, this challenge argues that various Health Act notices are “ultra vires”; that is, they purported to impose restrictions that went further than Parliament had authorised through legislation.

Think of the issue this way. If your boss tells you “go get me something nice for lunch”, and you come back with a Playstation 4, then you really can’t credibly say “but you told me to go to the shops and buy you something!”. The same deal goes with Ashley Bloomfield’s powers under the Health Act – these have to be used consistently with what Parliament is deemed to have intended when delegating them to him. And if the powers haven’t been used in this way, then the notices he has issued are unlawful.

Before looking at the details of the claim and its merits, let’s dispose of a preliminary issue. Either the Health Act permits these notices to be issued, or it doesn’t. An argument along the lines of “because the government was trying to save lives, these notices must be legal irrespective of what the Health Act says” cannot work.

Any claim that “State necessity” provides a legal basis for public power – that if the factual circumstances demand it, the law must permit the government to act – has been rejected in our system of government since at least 1765. In one of public law’s foundational cases, Entick v Carrington, the court famously noted: “If the king himself has no power to declare when the law ought to be violated for reason of State, I am sure we his judges have no such prerogative … .”

Now, I hasten to note that this doesn’t mean the circumstances in which the government acted are irrelevant to establishing the legal powers available to it. We’ll get back to that point in a moment. What I am saying, however, is that if the High Court finds that the Health Act didn’t authorise the lockdown measures, then they were not lawful. Let’s turn to look at what the High Court will be considering in the judicial review challenge.

The government’s position

In a speech on Friday afternoon – and how very dare he interfere with my Zoom drinking time! – the attorney general, David Parker, outlined at some length why he and Crown lawyers are and were satisfied with the lockdown’s legal basis. Let me go on the record as noting that this is an entirely respectable legal position to take. It has been ably echoed by Auckland Law School’s Edward Willis, in an unfortunately snapped Twitter thread (part one here, part two there). As he notes (and any errors in paraphrasing are mine alone):

• Ashley Bloomfield, as director general of health, could only issue such orders if the minister authorises him to; or there is an epidemic, or there is a state of emergency;
• The actions then taken can be made to fit the statutory language – after all, Ashley Bloomfield’s notices did in fact “require persons … to be isolated [or] quarantined … as he sees fit”;
• They comply with the important purpose of granting the power, which is to “prevent[] the outbreak or spread of any infectious disease”;
• The power in s70 to quarantine or isolate “persons” may be contrasted to the powers in Part 3A of the Health Act, which allow for quarantining or isolating “individuals”;
• And there’s a general principle of statutory interpretation that says “An enactment applies to circumstances as they arise” – which is where the context of a never-before experienced disease with the potential to kill thousands of people enters into the picture!

As such, on this reading it was entirely proper for the government to conclude there was the necessary legal authority to tackle Covid-19 as was done. I’ve already noted that this is an entirely reasonable view to take. And it very well may be that the High Court agrees with it in the upcoming judicial review proceedings.

The counter-argument

However, there is a “but”. As Professor Claudia Geiringer and I pointed out a couple of weeks ago now, the government’s reading of the Health Act provisions is not the only available one. Without going over too much old ground, there are some questions regarding the government’s position:

• Did Parliament really intend that a one sentence power to “isolate or quarantine” persons would confer on a single public health officer an open-ended ability to confine the entire country to their homes “as he [sic] sees fit”?;
• If so, wouldn’t that broad power render entirely redundant the separate power in s70(1)(i) to require people to remain in the place where they are isolated or quarantined, but only until tested or treated?;
• And, the power to “require” persons to isolate or quarantine comes with no obligation to issue a public notice, as compared with s70(1)(m) power to issue an “order” shutting down certain public places – perhaps suggesting that it wasn’t really intended to have the same widespread public application;
• And, while statutes must be read in the circumstances in which they arise, they also must be read in a way that requires clear and certain language when overriding individual rights. Or, as Justice Whata put it in a High Court decision considering the exercise of powers under another piece of emergency legislation; “I think it can be fairly said that the wider the power and the more drastic the interference [in rights the common law stridently seeks to protect from unlawful interference], the more careful the Court will be to scrutinise the exercise of that power to ensure that it conforms with its strict statutory origin.”

And so, on this interpretation, the Health Act simply wasn’t meant to empower a medical officer of health (like Ashley Bloomfield) to issue the sort of blanket notices that he did. In fact, he couldn’t issue public “notices” to quarantine or isolate at all; instead, all he may do is individually “require” those persons with (or reasonably suspected to have) Covid-19 to keep away from other people – as well as to stay in their residences until tested and/or treated for the disease in question.

What might the court decide to do?

I hope it is clear that there is a legitimate debate over the proper understanding of an over 60-year-old piece of legislation that is written in a somewhat ambiguous way. To illustrate but one difficulty with doing so – when enacted in 1956, the powers conferred by s 70 could only be exercised by individual medical officers of health within their particular health districts. As such, when conferring their power to isolate and quarantine, Parliament couldn’t have intended it to cover the entire country. What, then, does it mean when the director general of health was authorised to “exercise those functions [of a medical officer of health] in any part of New Zealand”? Anyone proclaiming with certainty that they know the “right answer” to such questions probably hasn’t thought about them enough. And so, predicting what the High Court will eventually do is a mug’s game.

Instead, here are a range of outcomes that may unfold (probably with others that I haven’t thought of).

First, assuming that we are in level two by the time it hears the case (invoke whatever primitive superstition you choose at this point), the High Court might try to duck the issue altogether by declaring it “moot”. In other words, as the Health Act notices establishing level four and three restrictions will have been revoked, they no longer affect the person seeking review and so there’s no longer a dispute for the court to resolve.

Personally, I really hope the Court doesn’t take this dodge. Even if the lawfulness or otherwise of the Health Act notices no longer matters to the applicant for judicial review, there have been a lot of people arrested and charged with breaching these notices. And the notices’ underlying lawfulness really matters for those prosecutions.

Furthermore, Ashley Bloomfield and Jacinda Ardern have been at pains to note that should The Beast (sorry, Covid-19) reanimate and again threaten us, we will be plunged back into level three or four restrictions. Those then will have to be re-imposed through further Health Act notices. And so, there is an ongoing societal interest in knowing if, in fact, that legislation permits such restrictions.

A second potential outcome is that the court agrees with the government’s interpretation of the Health Act and finds that the director general of health had the delegated power to issue the notices that he did. In which case, there is no question about their lawfulness (on these grounds, anyway), and the system has worked like it should. Ka pai.

Alternatively, the court may find that the government’s favoured interpretation of the Health Act was wrong, and that actually the director general didn’t have the power to issue the notices (or, issue them in the way that he did). In which case, the director general will have acted unlawfully. However, it’s then a separate question what the Court chooses to do in response.

It might do nothing – simply noting in its reasoning that the government’s preferred reading of the legislation is incorrect. More likely, it might issue a declaration as to the orders’ unlawful status, formally noting this legal fact. Or, it might go further and quash the notices, declaring them to be null-and-void and so all actions taken in relation to them of no effect. The chances of that last order, I suspect, are next to none.

At which point there’ll have to be another post to discuss the meaning of the Court’s chosen action. But for now, note that any outcome remains entirely speculative. The government’s legal case is reasonably strong and there’s every chance that the Court will agree with it. But, then again, maybe it won’t.

The lockdown in Parliament

The Epidemic Response Committee’s summons

Last week also saw Parliament’s Epidemic Response Committee issue a “summons” to the solicitor general and other government officials, requiring them to produce the legal advice regarding the lockdown measures adopted. As I’ve already given my views on the matter, I won’t go over them again. All I will note is that when discussing the issue in his Friday speech, the attorney general saw fit to approvingly quote at length one (checks notes) Professor Andrew Geddis writing in (checks notes again) a webizine called The Spinoff. An excellent appeal to impeccable authority, in my personal opinion.

The attorney general also stated in his speech that he will ask the Speaker to refer the Epidemic Response Committee’s summons to the Privileges Committee to consider. That seems to me an entirely appropriate step to take. While the Epidemic Response Committee was given the power under Standing Orders to summons documents, the question is whether its decision to use that power wrongly contravenes the common law protection given to legal advice. That’s a question of the extent of the House’s powers in law – does the power to issue summons conferred by the Parliamentary Privileges Act 2014 override the common law protection of legally privileged material? – which only can be answered by the House as a whole after consideration by the Privileges Committee.

However, there is another wrinkle to this issue that is worth noting. In his Friday speech, the attorney general was pretty open about the nature of legal advice that the government had received. Has he then been so open as to “impliedly waive” any claim to ongoing confidentiality? As the Cabinet Manual notes:

Implied waiver occurs when a client voluntarily discloses a significant part of the legal advice in a way that is inconsistent with a claim to its confidentiality. In these circumstances the privilege would likely be treated as implied to have been waived even if the client did not intend this. A simple statement by a client that legal advice has been received is unlikely to amount to an implied waiver of privilege. Partial disclosure of the actual legal advice received, or reference to the content of the legal advice, however, may result in waiver of privilege. For example, a statement such as “I have received legal advice and acted on it” may constitute a waiver.

That will be something for the Privileges Committee to consider when assessing the Epidemic Response Committee’s summons. If the claim to privilege has in fact been lost, then there’s no bar to requiring the information be provided. But it’s also something that is relevant to a request for the advice under the Official Information Act 1982. Because, if legal privilege has been impliedly waived, then it can’t be used to refuse the release of information under s9(2)(h). And if this ground is cited to anyone seeking the advice in question … then to the Ombudsman for a ruling!

The Regulations Review Committee

One last point to close off this somewhat voluminous recap of the current situation. On April 20th, the Chair of the House’s Regulations Review Committee wrote a letter that seemingly expressed real concern over how the director general of health was using his delegated powers. Whatever response Ashley Bloomfield was able to give the committee appears to have settled those concerns, because on Friday it issued an interim report that notes; “we have had no concerns with most of the epidemic secondary legislation.”

Whether that use of the word “most” still hides lingering concerns is a matter that only time will reveal. But at least for now, this particular parliamentary committee seems happy with how the government has effected the lockdown.