Getting Things Right

Legal Challenge Over Coronavirus Lockdown

Cutting Corners, Even With the Best of Motives and Intentions, Is Unacceptable.  It results in Governments Breaking the Law.

Thomas Coughlan
Stuff

Ashley Bloomfield might be heading to court to defend the lockdown after a legal challenge alleging he used powers he didn't have.  Andrew Borrowdale, who formerly drafted laws for the Government at the Parliamentary Counsel Office has filed for a judicial review of Bloomfield's actions.

Borrowdale told Stuff that the "bringing the application is not in any way intended to impugn Dr Bloomfield personally or to decry his admirable work".  He's asked for a court to declare that some of the powers triggering the lockdown were outside the law, and for the court to order those actions be quashed.

The main issue at stake is whether Bloomfield used powers that were in excess of the ones given to him by the Health Act.  Bloomfield used section 70 of the Health Act to issue notices, which set out some of the rules that we know as the level 4 lockdown.

Borrowdale alleges that the notices overstep the powers that are given to Bloomfield by the Health Act.  A Ministry of Health spokesperson said "The Ministry is satisfied that the section 70 powers have been exercised lawfully.  "It would be inappropriate for the Ministry to comment further where the matter is before the courts".

Otago law professor Andrew Geddis said the case was asking the High Court to make a "determinative ruling on whether the Health Act gave the director-general the power to issue the notices that it did".  Geddis said police had then arrested and charged people with breaching the order.  [Emphasis, ours]  “If the health act didn’t give the director-general that power, then all of those people who have been charged with those offences shouldn’t have been," he said.


Those people could potentially claim damages under the Bill of Rights.

Bloomfield's notices also forced all business to close, with rare exceptions. But Borrowdale claimed the powers in the Health Act don't allow Bloomfield to carte blanche close businesses and public spaces.

He argued that while the Act allows the director-general to close all premises of "any stated kind or description," Bloomfield exceeded this, closing everything down without specifying the specific kinds of premises like the Act requires.

Working out which businesses could be deemed "essential" was delegated to MBIE officials, which Borrowdale argued was also an overstep, as the Health Act doesn't give those officials the right to decide which business may open or stay shut.

He made the same point about the order that forbids people from congregating in outdoor places. The order says all such gatherings are banned, but the Health Act, Borrowdale claims, would require Bloomfield to actually state the kinds of gatherings that are banned.

The other issue at play is whether the Health Act actually gives the director-general the power to confine all New Zealanders to their homes.   Borrowdale argued that it actually should be read as meaning that only certain people can be quarantined and placed in isolation.  He says that the Act doesn't allow Bloomfield to act for the entire country at once, but rather it forces him to look at the needs of each health district separately.

Borrowdale formerly drafted laws for the Parliamentary Counsel Office. He now drafts laws for other countries, while still living in New Zealand.