The High Court of New Zealand is the equivalent of an Australian supreme court sitting above the District Court but below the Court of Appeal and the NZ Supreme Court. The Supreme Court of New Zealand is the equivalent of the Australian High Court.

In Borrowdale v Director-General of Health [2020] NZHC 2090 the Court ruled on Mr Borrowdale’s application for declarations that the New Zealand lockdown was unlawful. He raised three separate claims. The first related to the period commencing 26 March 2020 and running for 9 days. During that time the Prime Minister and others made statements in the media telling New Zealanders that they were required to isolate on pain of police enforcement.

The second challenge related to orders made by Director General of Health under the Health Act 1956 (NZ). Mr Borrowdale alleged that the DG had exceeded the authority provided by the Act particularly if the Act was interpreted in a way to make it consistent with the New Zealand Bill of Rights Act 1990 (NZ).

The third claim was related to the second and argued that the Order that prescribed that all business other than essential business had to close unlawfully left the decision of what was or was not an essential business to ‘unnamed members of the public service, and these decisions were regularly altered’.  Mr Borrowdale argued that this was an impermissible delegation of authority.

The first claim

The court upheld Mr Borrowdale’s claim.  An example of the sort of announcement that was made is given at [156] where the Prime Minister said (on 25 March):

If someone is outside and has no explanation, [Police] will remind them of their obligations, and if they believe they need to, they can take other enforcement actions.

The problem was that at this initial time the Director General of Health had issued an order requiring the closure of businesses and forbidding ‘people to congregate in outdoor places of amusement or recreation of any kind’ but an obligation to remain at home was not part of those orders. Although the Director General of Health could have issued orders imposing those restrictions, he had not yet done so and did not do so until 3 April 2020 (Order 2).  At [225] their Honours said:

… prior to Order 2 there was in fact no legal obligation for compliance with the Restrictive Measures. And that is not what was conveyed by the Statements that articulated them. It follows that any limits on rights that were implicit in the Restrictive Measures were not prescribed by law.

The government argued that the announcements from the Prime Minister and the police were requests rather than directions that people voluntarily complied with. The Court did agree (at [184]) that:

… the Statements contain much “soft messaging” focusing on the “Unite” campaign and the concept of a “Team of 5 million”. They repeatedly emphasise the importance of collective action and commitment. On numerous occasions New Zealanders are “asked” to stay home, just as they are asked to be kind and to wash their hands. Equally, however, the Statements are replete with commands: the frequent use of the word “must”, backed up by reference to the possibility of enforcement action for those who did not follow the “rules”.

The court concluded (at [185]) that ‘Standing together with that imperative language are other contextual matters that support our view that the Statements conveyed commands, not guidance.’

The court found that the statements by the Prime Minister and the Police Commissioner directed the citizens of New Zealand to stay at home when there was no legal obligation upon them to comply.

The second claim

The Director-General of Health made three orders under the Health Act 1956 (NZ). These were made on 25 March (Order 1), 3 April (Order 2) and 27 April (Order 3). Order 1 (at [75]):

(a)        required the closure of all premises within all districts of New Zealand, except those listed in the Appendix to the Order, until further notice; and

(b)       forbade people to congregate in outdoor places of amusement or recreation of any kind or description (whether public or private) in all districts of New Zealand, until further notice.

Order 2

… required all persons within all districts of New Zealand to be isolated or quarantined:

(a) by remaining at their current place of residence, except as permitted for essential personal movement; and

(b) by maintaining physical distancing, except—

(i) from fellow residents; or

(ii) to the extent necessary to access or provide an essential business; and

(c) for those with mobile residences, by keeping their residence in the same general location, except to the extent they would be permitted (if it were not mobile) to leave the residence as essential personal movement.

The court said (at [80]-[83]):

… Order 3 revoked the two previous Orders and relevantly required, in cl 6, all persons in all regions to be isolated or quarantined by remaining at their current place of residence, except for essential personal movement and maintaining physical distancing, and with exceptions of essentially the same kind as under Order 2. But cl 7 stipulated a number of further and more specifically defined instances of essential (and therefore permitted) personal movement.

Clause 9 required the closure of “restricted premises”, with exceptions where necessary work (such as maintaining the condition of the premises, plant or goods) was being undertaken.

Clause 11 prohibited congregating in outdoor places of amusement or recreation, but not venues where infection control measures were operating.

Mr Borrowdale claimed that the Director General did not have the power to make those orders. That power, he argued, was only vested in appointed Medical Officers of Health and further could only be exercised within each health district but not nationally. Finally, he claims that the actions were inconsistent with the New Zealand Bill of Rights Act 1990 (NZ) (‘the NZBORA’).  At [95] the Court said:

As others have notably said, the NZBORA is a “Bill of reasonable protection for rights”. The rights presently in issue are not absolute and “must accommodate the rights of others and the legitimate interests of society as a whole”, including the wider interest in protecting public health. This is confirmed by the express framing of the equivalent provisions of the ICCPR [the International Convention on Civil and Political Rights], discussed above. So the critical question must be what limitations on those rights can be justified in light of the public health interests in play – that is what s 5 requires to be asked and demands to be answered. Section 5 thus remains central to our inquiry, and s 6 must be read subject to it…

And at [97]-[98]; [100]-[102]:

… the relevant NZBORA question here is whether the limitations of rights resulting from the actual exercise of the [Health Act s 70] powers were necessary, reasonable, and proportionate. And that assessment depends on the particular (public health emergency) circumstances to which the exercise of power responds…

That assessment requires us to construe those provisions based on their text, in light of their purpose and statutory context, and on the basis that they are to be applied to circumstances as they arise. It does not require a prior reading down of those provisions in a way that is at odds with their text and purpose…

To start with the obvious, the powers conferred by s 70 are, indeed, “special” powers – powers for use only in a public health emergency. They largely precede, but nonetheless reflect and give effect to, the New Zealand Government’s international obligations to protect the health of its people and to take measures to prevent the spread of infectious disease both within and beyond our national borders. As is expressly recognised by the relevant international instruments, individual rights may have to yield to the greater good in circumstances where s 70 is in play. And as we have said, the s 70 powers themselves also contemplate that yielding.

Importantly, though, there are inbuilt limits to the exercise of the s 70 powers. Their exercise is permitted only for the purpose of preventing the outbreak or spread of infectious disease – a situation that is assessed by a public health expert, not by Cabinet or the Prime Minister. And their exercise is permitted only after the activation of one of the three “triggers”: Ministerial authorisation, a state of emergency, or an epidemic notice.

As well, the powers have temporal limits, albeit partly unspecified. For example, where the relevant trigger is an epidemic notice, the powers are only exercisable while the notice is in force. But as a matter of wider principle, the s 70 powers are intended to facilitate an immediate and urgent response to a public health crisis. They cannot sensibly be regarded as providing the framework for a longer term response. When a public health crisis is ongoing, the democratic nature of our constitution means that there comes a point when Parliament ought to pass bespoke legislation to ensure that critical policy decisions are made by ordinary Cabinet decision-making. That is, in fact, exactly what happened here, when Parliament enacted the COVID-19 Public Health Response Act 2020 on 13 May.

The court rejected all of the arguments against the orders. They held that the Director General of Health had the powers and functions of a Medical Officer of Health and could issue orders under the Health Act with national application, including powers to quarantine the entire the national population. The orders did impinge on the rights guaranteed to New Zealanders under the NZBORA but that the restriction was reasonable and proportionate to the risk posed by the pandemic.

The court concluded (at [139]):

In our view Orders 1, 2, and 3 were each authorised by either s 70(1)(f), (m) [of the Health Act 1956], or both when those provisions are interpreted in light of their purpose and context.

The second cause of action fails, accordingly.

The third claim

The third claim related to the closure of business in order 1.  That order (at [242[):

required to be closed, until further notice, “all premises within all districts of New Zealand except those listed in the Appendix”. The Appendix then listed a number of specific exemptions, including:

(e)        any premises necessary for the performance or delivery of essential businesses as defined further below;

…

For the purposes of this order:

• “essential businesses” means businesses that are essential to the provision of the necessities of life and those businesses that support them, as described on the Essential Services list on the covid19.govt.nz internet site maintained by the New Zealand government.

The power to determine which business must close was a power vested in the DG but according to Mr Borrowdale leaving it to public servants to create the online list was an unlawful delegation. The Crown case was that the DG exercised his powers by declaring all business other than ‘essential businesses’ were to close, and the material provided by the relevant department was advisory to help business owners decide whether they were ‘essential’ or not.

The court said (at [267]-[272]; [278]):

The issue here essentially arises because of the words after the comma: “as described on the Essential Services list on the covid19.govt.nz internet site maintained by the New Zealand government”. It is only those words that, at least arguably, suggest that it was left to others to determine the parameters of the definition.

But we do not think that those words should be regarded as forming part of the core definition. Rather, we agree with the Crown that the reference to the COVID-19 website was advisory, for the following reasons.

First, in making Order 1, the Director-General was exercising a public health function in emergency circumstances. He was acting as a Medical Officer of Health and determining what businesses could remain open following the issue of the Epidemic Notice. As in Cropp, the Order falls to be interpreted in those circumstances and in light of the Director-General’s functions and s 70’s purpose.

It was entirely appropriate for the Director-General to determine that, given the health threat posed by COVID-19, it was necessary to close all businesses, other than those required to meet the countervailing public health demands (ensuring that New Zealanders had continued access to the necessities of life). But it would have been entirely inappropriate for him to also engage with what we will call the “operational” side of that determination.

As the Crown submits, the assessment of precisely which businesses in New Zealand are “essential” is not a public health issue. Nor is the Director-General, or the Ministry of Health officials advising him, in any position to undertake that assessment.113 It was necessary, and lawful, to leave that kind of operational detail to the lead agencies operating in the relevant sectors. For example, the Ministry of Primary Industries was responsible for providing guidance to businesses supporting New Zealand’s food supply chain. There is simply no way that the Director-General could be expected to know which particular businesses in those complex and multi-faceted supply chains were essential, or, indeed, even what types of businesses =were involved.

Secondly, there is the fact noted at [259] that the core part of the definition was formally amended by Dr Bloomfield (on the advice of Mr Stocks). That signifies a delineation of functions that was understood and acted upon, which is inconsistent with Mr Borrowdale’s “delegation theory”. Setting the core parameters around what businesses were essential remained a matter for the Director-General. Operational matters, or giving effect to the definition, lay with officials…

Finally, the essential services list on the website was not comprehensive. A business not listed on the website could still meet the definition of an essential business if it met the definition in Order 1. If MBIE [Ministry of Business, Innovation, and Employment] or others suggested that it was not essential, judicial review would have been available. The issue was always whether it met the Order 1 definition: being a business essential for the provision of the necessities of life (or a business that supports them).

The court concluded (at [279]):

The definition of “essential businesses” was set by Order 1 and was at all times clear and fixed. It did not alter with the various changes and extensions to the list of essential services on the website from time to time. There was no delegation here and no breach of the rule of law. The third cause of action is dismissed.

Outcome

The outcome was that the directions issued by the government via the Prime Minister and Police Commissioner for the first 9 days, directing New Zealanders to remain at home were, in effect directions (not merely an advice or request) that infringed on rights protected by the NZBORA and were not supported by law. The situation was rectified by the making of Order 2 and thereafter the orders of the New Zealand government were both within power and where they reduced or restricted rights and freedoms those restrictions were reasonable and proportionate and permitted by the NZBORA.

The question then became what was the remedy? The 9 days had long passed and the legal situation was corrected by making order 2. On the question of whether they should make a declaration their honours said ([290]-[291]):

We find this question to be finely balanced. Although we have concluded that there was for nine days an unlawful limitation of certain rights and freedoms, that must be seen in the context of the rapidly developing public health emergency the nation was facing. We agree with Mr Borrowdale that – although not prescribed by law – the limits were nevertheless reasonable, necessary and proportionate. Moreover, they were limits that could have been imposed lawfully by the Director-General at the time, simply by issuing an order. And the unlawfulness has long since been remedied. We think these matters militate against making a declaration here.

But there are, of course, weighty rule of law considerations that point the other way. The rule of law requires that the law is accessible and, so far as possible, intelligible, clear and predictable. As Lord Bingham has explained extrajudicially, if individuals are “liable to be prosecuted, fined and perhaps imprisoned for doing or failing to do something, we ought to be able, without undue difficulty, to find out what it is we must or must not do on pain of criminal penalty”. The required clarity was lacking here. Although the state of crisis during those first nine days goes some way to explaining what happened, it is equally so that in times of emergency the courts’ constitutional role in keeping a weather eye on the rule of law assumes particular importance. For these reasons we conclude that it would be appropriate to make a declaration.

The court made the following declaration:

By various public and widely publicised announcements made between 26 March and 3 April 2020 in response to the COVID-19 public health crisis, members of the executive branch of the New Zealand Government stated or implied that, for that nine-day period, subject to limited exceptions, all New Zealanders were required by law to stay at home and in their “bubbles” when there was no such requirement. Those announcements had the effect of limiting certain rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 including, in particular, the rights to freedom of movement, peaceful assembly and association. While there is no question that the requirement was a necessary, reasonable and proportionate response to the COVID-19 crisis at that time, the requirement was not prescribed by law and was therefore contrary to the New Zealand Bill of Rights Act.

The second and third causes of action were dismissed.

It is not clear what effect if any this declaration will have other than to advise New Zealander’s of the legal position. It may be that if anyone was detained or issued with an infringement then they would rely on this finding as a defence to any prosecution or to support a claim for false imprisonment but whether anyone was detained or fined I don’t know, and the court did not address.

Discussion

 New Zealand is not Australia so the law discussed here does not apply in Australia, but the Health Act 1956 (NZ) is not so different from the various public health Acts in the Australian states and territories, and the NZBORA is not so different from the Human Rights Acts in the ACT, Queensland and Victoria.

Those concerned about the response to the pandemic may be reassured that the Court affirmed the rule of law continues to apply in an emergency. Governments cannot legislate by press release. I have said previously that, as a rule of thumb, a citizen can do whatever they want unless there is a law against it; but governments cannot do anything unless there is a law empowering them. For the New Zealand government (or an Australian state) to restrict liberty they can do so only by law.

But the case confirmed that the law can empower officers of the state (eg a Police Commissioner or Health Officer) to make orders and restrict liberties. And the restriction of personal liberty – even in the presence of the ICCPR and Human Rights legislation – is permissible when the restriction is reasonable and proportionate to the issues to be addressed. Human rights claims (other than the right to life) do not trump all else at all times.

In my post Challenging COVID restrictions – part 1 (April 23, 2020) I said:

If you think the current restrictions on your liberty is a breach of your fundamental and inalienable human rights, you could challenge them.  You could apply to a human rights watchdog and in some states, you may be able to seek a declaration in the Supreme Court.  My prediction is that, given the near universal international response, you would have no chance of persuading any tribunal that the current powers are not lawful.

Mr Borrowdale did take his objections to court, as was his right. And he did have some success but ultimately the court agreed that the restrictions on liberties was permissible under law. This is consistent with a previously reported outcome in the US – US Supreme Court rules on Californian COVID restrictions (June 4, 2020).  Those hoping to see challenges in Australia would draw little comfort from this decision even though the first cause of action was upheld.