The director general of health, Dr Ashley Bloomfield speaks to media during a press conference at the Beehive (Photo: Hagen Hopkins/Getty Images)
The director general of health, Dr Ashley Bloomfield speaks to media during a press conference at the Beehive (Photo: Hagen Hopkins/Getty Images)

The BulletinMay 7, 2020

The Bulletin: Questions swirling about legality of lockdown 

The director general of health, Dr Ashley Bloomfield speaks to media during a press conference at the Beehive (Photo: Hagen Hopkins/Getty Images)
The director general of health, Dr Ashley Bloomfield speaks to media during a press conference at the Beehive (Photo: Hagen Hopkins/Getty Images)

Good morning, and welcome to The Bulletin. In today’s edition: Questions swirling about legality of lockdown, Microsoft moves towards much bigger presence in NZ, and Transmission Gully in turmoil.

On one level, it’s quite a bizarre question – was it legal for the whole country to be ordered to go into lockdown? The question feels strange because in one sense, it doesn’t matter – we did it anyway, and it worked to stop the spread of Covid-19. But looking ahead, it matters a great deal, and it’s worth exploring why. We might need to go into lockdown again at some stage, and the perception that authority is being enforced legitimately matters a great deal to whether people accept it. And on a more fundamental level, it sets an extremely bad precedent if governments and senior public servants can put vast constraints on civil liberties without the legal authority to do so.

As such, a court case will be brought against Dr Ashley Bloomfield, reports Stuff’s Thomas Coughlan. It has been filed by top lawyer and former parliamentary counsel Andrew Borrowdale, who says up front that “bringing the application is not in any way intended to impugn Dr Bloomfield personally or to decry his admirable work”. Rather, he contends that Dr Bloomfield overstepped the powers given to him by the Health Act – the law under which the lockdown was ordered.

The ministry have said they’re confident they acted within the law, and won’t comment further while it is before the courts. For more on the particular legal questions swirling around this, have a read of this piece by academics Claudia Geiringer and Andrew Geddis.

National leader Simon Bridges has also made a move to test the legal basis of the lockdown, reports the NZ Herald. He’s summonsed the Solicitor-General to the Epidemic Response Committee (which he chairs as leader of the opposition) and will ask them to present legal advice given to the government. The story also notes the position taken by Bridges in his capacity as a minister in 2013, when he noted that the Crown never makes legally privileged documents public. Current minister David Parker has also made that point in saying that the advice is legally privileged, so won’t be released now. It’s an unprecedented move by Bridges, and speaking to Radio NZ, Claudia Geiringer suggested it was “quite improper.” In a One News report, Bridges said that National would handle the matter cooperatively if it was brought before parliament.

These are certainly issues that have been closely considered, including by those at the top of the police. Two days ago Newstalk ZB’s political editor Barry Soper reported on leaked emails that show police were deeply uncomfortable about what powers officers would actually have – and in effect, officers were told not to push the issue with the public in all but the most egregious situations. But hundreds of charges have been laid against people for breaching the lockdown over the course of the last month, so these are now legal issues with quite urgent implications for many.

It might be tempting to write all of this off as just procedural nonsense – because as mentioned before, the lockdown prevented a mass outbreak of a deadly virus. But this sort of thing taking place is what it looks like when civil society systems are working as they are supposed to. It might not make for particularly exciting or juicy scandals, but these questions are fundamental to a functioning society, and we have to pay attention when they’re raised.

We’ve got a back to work survey: As alert level two beckons, we’re running a survey with Stickybeak to find out how employees feel about returning to the workplace. Click here to give us your view. It only takes a minute to complete, and results are aggregated and anonymised.

The announcement that Microsoft will set up a datacentre in New Zealand made a lot of noise yesterday. It was heavily talked up by the government as a vote of confidence in investing in New Zealand, which may well be fair, though we don’t yet know how many jobs will be created – either directly, or indirectly through wider benefits to the tech industry. As this Business Desk (paywalled) story notes, there will be significant advantages for Microsoft in terms of gaining and retaining market share for data storage that would preferably stay in NZ, which is an important consideration for some organisations.

There have been a few interesting pieces published about Transmission Gully this week – the major roading project north of Wellington which appears to be stalling. As Newsroom’s Dileepa Fonseka reports, there are signs that the ‘private’ part of the public-private partnership behind the project could be about to walk away, leaving the government carrying the can. There has already been confirmation that it won’t open until 2021, which is behind schedule. Radio NZ’s Charlotte Cook reports that a construction error has meant that parts of the road will now need to be re-laid, and the impression given by sources quoted in that story suggest the whole project is starting to resemble a giant money-pit. Finally, we’ve republished a piece on The Spinoff by transport blogger Matt Lawrie, who argues that it all raises serious concerns about the PPP model, which is being used for other major infrastructure projects around the country.

Auckland Council is likely to impose water restrictions on the city today, reports the NZ Herald’s Bernard Orsman, as Watercare struggles with both heavy demand and a bad drought. The storage dams are now well below half full, and even very heavy rain at the start of the week has failed to make a dent in that. The city is currently scrambling around for more sources of water, and has bids in to take more from the Hunua Ranges and Waikato River.

A contract cleaner for Auckland Council says they’re making less than minimum wage after taking a Covid-related pay cut, reports Todd Niall for Stuff. They’re not directly employed by the Council, but rather a company that has instituted a 20% pay cut which fulfils Council contracts. But the worker says it contradicts an election promise made by Auckland mayor Phil Goff to put all Council-contracted staff on a living wage. In turn, Goff says the payment of contractors is a matter for the company that employs them, and the Council is not currently in a financial position to meet the shortfall.

We’re going to get an explanation today of what the rules will be if the country moves to level two. As always, you can keep an eye on the developments on The Spinoff’s live blog. What we’re probably not going to get today is a declaration on exactly when we’ll move to level two. On that point, the latest from Siouxsie Wiles and Toby Morris is well worth reading – it’s about the recent low numbers of new cases, and why there could still be a lag in infections lurking around the corner.

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Right now on The Spinoff: Planning expert Hamish Rennie urges the government to put more emphasis on climate change in their rush to get shovel-ready projects going. Nicole Pervan explains why a mortgage holiday isn’t as fun as it might sound. James Dann writes about the Christchurch earthquake rebuild, and how it should be a guide for what not to do now. Pamela Wood looks at the experience of nurses during the pandemic of 1918, with many getting sick and dying. And Josie Adams speaks to Troy Kingi about winning the Taite music prize for this year.

A couple of days ago was the 50th anniversary of the Kent State University shootings – an event that had a profound effect on the course of US political culture afterwards. For many today, it might seem like the shooting of unarmed student protesters is impossible to imagine – that it couldn’t possibly happen now. But as this piece from left-wing journal Overland argues, the political ferment that led to it is perhaps not so different to other periods in the past, and even today. Here’s an excerpt:

Kent State matters now more than it did a decade ago simply because today it’s easier to imagine a Trump – or a Trump wannabe – whipping up the kind of murderous atmosphere that preceded the shootings in Ohio.

‘If it takes a bloodbath,’ declared Ronald Reagan as he pledged to defeat radical students in California, ‘let’s get it over with.’

Trump might say something very similar, probably on Twitter.

Sport NZ has put together a $25 million package to support struggling community and regional sports organisations, reports Stuff’s Dana Johannsen. Right now, a lot of clubs are up against it – it’s not like the sector was flush with cash before all of this, and the hit to revenues will not have helped. Sport NZ boss Peter Miskimmin says the focus of the money will be directed at the community level, because it “is the heartbeat of our sector.”

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