Law Society releases written submission on appeal over COVID-19 lockdown’s legality

The organisation acted as a neutral participant because the case “involved issues of general and wide importance”

Law Society releases written submission on appeal over COVID-19 lockdown’s legality

The New Zealand Law Society has released its written submission regarding a legal challenge against the lockdown measures that the government imposed last year to prevent the transmission of COVID-19.

The Court of Appeal heard the case earlier this month, with the Law Society acting as a neutral participant to assist the court in its decision because the appeal “involved issues of general and wide importance.”

Andrew Borrowdale, a former parliamentary counsel and law drafter, won part of the judicial review in the High Court in Wellington last year, with the court ruling that the first nine days of the level 4 lockdown were justified but unlawful. Borrowdale has then appealed parts of the decision that did not go his way.

According to the Law Society, which was represented by Tim Stephens, Jonathan Orpin-Dowell, and Monique van Alphen Fyfe, the issues being considered in appeal concerned:

  • How special powers in the Health Act are interpreted in the context of a global pandemic
  • Whether the Director-General of Health unlawfully delegated decision-making to the Ministry of Business, Innovation, and Employment (MBIE) about the “essential businesses” exception to the nationwide closure of premises under his Health Act orders

With regard to the first issue, Borrowdale argued that certain orders made by the director-general under section 70 of the Health Act, which covers “special powers of the medical officer of health” under infectious and notifiable diseases, did not grant the authority to order a national lockdown.

The Law Society disagreed that the orders were unlawful, stating that earlier versions of section 70 had been used in similar ways, which means the parliament “must have intended for the current powers to be used in this way.”

The organisation added that the rule of law concerning when emergency powers rise “can be met by interpreting section 70 as to include a time constraint on the exercise of the powers contained within it.”

“The powers are intended to give the director-general the authority to enable an immediate short-term response to an outbreak of disease,” the Law Society wrote. “The orders, therefore, did not impose unlawful limits on individuals’ rights and freedoms.”

The Law Society, however, agreed with Borrowdale’s argument that certain orders made by the director-general unlawfully delegated decision-making powers to MBIE officials by enabling them to determine which businesses were categorised as an “essential business.”

In its August 2020 decision, the high court found that the director-general had not delegated his powers to MBIE officials because the reference to the COVID-19 website in the order was merely advisory.

The Law Society submitted that the language used the website was “expressed in mandatory terms” that a member of the public who read it would likely believe that the order “carried legal force and was not merely advisory.”

The organisation, however, noted that the website was regularly updated and that there was no evidence that the director-general was engaged in its content, which meant that the “decisions and exemptions were being made by officials who had been delegated the responsibility and power to do so.”

The Court of Appeal has reserved its decision on the matter.

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