They were cordoned off in the first lockdown in 2020 (Photo: Phil Walter/Getty Images)

OPINIONPoliticsAugust 20, 2020

Unlawful, but necessary and reasonable: making sense of the High Court ruling on the lockdown

Contributing writer

They were cordoned off in the first lockdown in 2020 (Photo: Phil Walter/Getty Images)

In choosing to lead with the threat that Covid-19 poses the High Court makes it abundantly clear that it is going to cut the government a lot of slack when reviewing the overall legality of its actions in response, writes Andrew Geddis.

Probably the most famous opening to a court judgment is to be found in the UK court of Appeal case of Miller v Jackson. Two home owners were seeking to stop the neighbouring cricket club from playing games on the club’s ground, because the ball kept on being hit over their fence and damaging their house.

The moment you begin reading Lord Denning’s judgment, you immediately know which way he was going on this issue: “In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well.”

They tend it well, indeed. Unsurprisingly, Lord Denning went on to find that the cricket club should be able to continue its games despite the harm caused to the homeowners.

Yesterday’s decision on the challenge to the legality of our level four and three lockdown measures might provide New Zealand’s public law equivalent of such a spoiler opening. Here’s how the judges commence their joint decision: “At the time of finalising this judgment, Covid-19 had infected over 21,500,000 people world-wide and killed over 760,000.”

Reading that invokes Hudson’s cry: “Game over, man, game over!” In choosing to lead with the threat that Covid-19 poses the court makes it abundantly clear that it is going to cut the government a lot of slack when reviewing the overall legality of its actions in response.

And so it proceeded to reject the argument of the claimant, Mr Borrowdale, that the overall lockdown measures were not actually permitted by the Health Act 1956. The nature of the legislation, the emergency situation faced by the nation, and the need to apply the law in a novel situation all called for a “fair, liberal, and remedial construction” of that statute’s wording. In other words, the court would go looking for ways to try and fit the government’s actions under that legislation’s umbrella.

Unsurprisingly, it then found them. The powers bestowed on the director general of health, Ashley Bloomfield, by the Health Act were intended to be broad and cover the whole country. They come from a long history of allowing pretty draconian actions to preserve public health. They mean that he can, by way of nebulous “appropriate notification”, tell everyone they have to stay indoors for all but limited exceptions until he thinks it is safe for them not to.

Equally, the way that Ashley Bloomfield went about determining which companies could carry on trading under lockdown was all OK. All he had to do was come up with a general, high level definition as being those businesses “that are essential to the provision of the necessities of life and those businesses that support them”, then hand the matter over to another government agency to decide exactly which businesses met that criteria. That was still him deciding what could be opened and what had to stay closed, as the Health Act required.

And even when the court agreed with Mr Borrowdale on one point – that the legal framework in place for the lockdown’s first nine days didn’t actually forbid all the things people were being told they couldn’t do – it very much down-played the matter. This was largely a legal “no harm, no foul” situation. The government could have issued the right legal orders at the outset of lockdown, it just didn’t get around to doing so for a nine-day period.

So, while the failure to create a clear legal basis for the lockdown rules from the outset meant that people’s legal rights were improperly limited, the government still acted in “a necessary, reasonable and proportionate” way. In making a declaration to that effect, the court didn’t even use the word “unlawful” to describe the situation (even though it was).

I don’t mean this very brief summary of the court’s 293 paragraph long decision to sound cynical or dismissive. The court did its job in holding the actions of the government up to scrutiny and ensuring that they fit within the law. And as I noted before the case was heard, there certainly were very smart legal minds out there who saw matters the same way that the court did.

So it’s not that the court got the decision wrong. Rather, it seems clear that the court’s perception of its job, and the law at issue, was very much coloured by the same collective concerns that drove the government’s response to the virus. Preventing lots of people from dying from a disease is perhaps the government’s highest obligation, and the law has to be seen as enabling the government to carry out that task.

We are, after all, a team of five million – not a team of 4,999,997 and three High court judges.

Keep going!

OPINIONPoliticsAugust 19, 2020

National needs to keep pounding the accountability drum on Covid response

Ben Thomas

Contributing writer

With the shine starting to come off the government’s Covid response, the opposition must abandon baseless speculation for a laser focus on failure and accountability, argues Ben Thomas.

The fresh outbreak of Covid-19 in Auckland last week was a shock to the public. But it should have been manna from heaven for political parties campaigning in the shadow of an overwhelmingly popular Labour Party, seemingly coasting towards a majority government on the back of its outstanding success in eliminating the virus from the community.

National and Judith Collins, in particular, were handed the political equivalent of a $50 million winning Powerball ticket. They then proceeded to do the political equivalent of wadding gum into it and chucking it in a bin.

Collins and her deputy Gerry Brownlee burned through five crucial days after the move into lockdown in Auckland, noodling about the election date and first encouraging, then fending off suggestions they had stoked inchoate speculation about the timing of the government’s knowledge of the outbreak.

“Conspiracy to cover up the spread of disease” set a needlessly high bar for National to clear in order to prove a government failure. Barely a week before, Ardern had declared 2020 a “Covid election”, and was campaigning by her own admission with little new policy, but against the backdrop of eliminating the virus and setting the economy right.

National’s deputy leader Gerry Brownlee, who was ‘just asking questions’ (Image: Getty Images/Tina Tiller)

In hindsight, Collins and Brownlee could safely have left their push to delay voting in the capable hands of deputy prime minister Winston Peters. With NZ First polling between 2 and 3%, he made it clear that rescheduling September 19 was his chief priority – and, as the crucial support party to the government even in its dying days, he was in a position to force the prime minister’s hand.

The announcement that the election would be held a month later (barring any decisions by the Electoral Commission on the grounds of public safety) bought Peters the time he hopes to use on his famed grassroots campaigning.

The recall of parliament, in contrast, gives National the opportunity to look like an effective opposition.

So complete was National’s early failure in that critical period that the government seemed poised to turn the new outbreak into further proof of its competence in handling an outbreak. Then, thanks to dogged work by journalists, and Newshub’s Michael Morrah in particular, the official narrative started to unravel.

Far from the border being secured against Covid after the embarrassment of infected day-trippers leaving quarantine without testing in June, it turned out border staff were not being regularly tested. In fact, around two-thirds had not been tested at all.

The prime minister and minister of health expressed disappointment at this failure by the Ministry of Health, but explained that this was not a significant issue because all staff at the most high risk quarantine facility, Jet Park, were being tested every week. This too proved false.

Ardern and Hipkins then assured the public that the main line of defence against infection of border staff was the use of PPE and daily health checks of employees.

On Tuesday however, a new case, unrelated to the Auckland cluster, was discovered at Rydges, another hotel being used for quarantine. A maintenance worker, he had been waved through a health check despite showing Covid-like symptoms.

Ardern and Hipkins have made much of the fact that, so far, no firm evidence links the cluster of 69 cases to a quarantine facility. But the new case, clearly linked to the facility, blows that mitigating factor out of the water.

Even if there had been no outbreak at all, it would be a matter of serious concern for the government to tell the public it is doing testing that it isn’t. It would not be good enough for a ministry to simply fail to implement government policy.

Health minister Chris Hipkins speaks to media while director general of health Dr Ashley Bloomfield looks on, August 6, 2020. (Photo: Hagen Hopkins/Getty Images)

The flipside of the responsibility that National has as Her Majesty’s Loyal Opposition to not stir up baseless suspicion and undermine public institutions is that the government must maintain trust through transparency and accountability.

This demand is more urgent than ever as rumours and misinformation flood social media and the inboxes of credulous boomers, and literal conspiracy theorists organize rallies and form political parties.

It’s not a great sign for transparency when Ardern, recently named the world’s most eloquent leader, could only tell RNZ that “What appears to have been the case is that it was tending not to necessarily have that level of coverage across border staff.”

Hipkins and health director general Ashley Bloomfield have gently passed responsibility back and forth for what Bloomfield calls the “dissonance” between ministers’ belief that comprehensive testing was happening and the reality on the ground – less like ping pong and more like hacky sack, where the goal is to keep the bag in the air for as long as possible without letting it fall in anyone’s court.

In question time, Hipkins said that he believed comprehensive testing was occurring, but also that he was given numbers showing incomplete testing, but also that the Ministry of Health had told him there was comprehensive testing – frenetically bumping the hacky sack on his knee before sending it flying over the head of National health spokesperson Shane Reti in the direction of Bloomfield (who for his part maintained that Health gave the correct information to ministers).

There is more at stake here than election year politicking. A serious communication breakdown between officials on the ground and ministers in the war room is unacceptable, but a failure to account for how it happened is worse. This is the second time assurances about testing at the border have turned out to be simply untrue, and the second time ministers have been caught by surprise. A government agency that can’t or won’t execute policy is an embarrassment in normal times, and a serious risk to public safety during a pandemic. Management of those bureaucrats is very squarely the responsibility of politicians.

There is a natural tendency to want to “avoid politics” while the virus is eliminated again, hence the formal pause on campaigns. But accountability to the public can only occur through ministers in a democratically elected government. That’s ultimately what politics is. The best thing National can do now for the public, and for itself as it heads towards the election, is to keep demanding answers.