(Aug. 20, 2020) On August 19, 2020, the High Court of New Zealand, the third-highest court in the judicial hierarchy, released its decision in the case of Andrew Borrowdale v Director-General of Health  NZHC 2090 (Decision), in which Borrowdale, a former government legal drafter, challenged the legality of aspects of the New Zealand government’s lockdown measures in response to the COVID-19 pandemic. A full bench (three judges) of the High Court heard the judicial review proceedings on July 27–29, 2020. The New Zealand Law Society was granted leave to intervene in the proceedings as a neutral party and provided written and oral submissions to the court, “noting that the proceedings were important for the operation of the rule of law and the administration of justice, and were of significant public interest.”
New Zealand’s Lockdown
On March 21, 2020, the New Zealand prime minister, Jacinda Ardern, addressing the nation on the rapidly escalating global health crisis, announced a four-level alert system that could be applied nationwide or to specific areas and stated that the country was at Alert Level 2. On March 23, Ardern announced that the whole country would move to Alert Level 3 immediately, and then to Alert Level 4 on March 25 at 11:59 p.m. Alert Level 4 – Lockdown involved people being told to stay home, with a state of national emergency declared; all businesses closed except for essential services (supermarkets, pharmacies, and health clinics); public transport severely limited; and domestic travel restrictions imposed. (Decision paras. 142–147.)
Ardern outlined the lockdown restrictions in her post-Cabinet press conference on March 23 and reiterated them on her Facebook page. Information instructing people to stay home was published on the government’s Unite against COVID-19 website. The police commissioner was also quoted in a media article explaining the enforcement powers of the New Zealand Police with respect to the lockdown. Ardern, the police commissioner, the all of government controller, and the director of civil defence emergency management made further statements regarding the requirements and their enforcement on March 24 and 25, and updates were added to the COVID-19 website and associated Facebook page, emphasizing that people must stay home. (Decision paras. 148–161.) On March 25, the Civil Defence National Emergency Management Agency issued to all capable mobile phones an alert that included a statement that people must stay home. (Decision para. 162.) Further statements regarding the restrictions were made by various officials and on the website in the days that followed. (Decision paras. 163–172.) The High Court decision refers to these statements and announcements collectively as “the Statements.” (Decision para. 147.)
An epidemic notice issued by the prime minister under section 5 of the Epidemic Preparedness Act 2006 came into effect on March 25, and a state of national emergency was declared under section 66 of the Civil Defence Emergency Management Act 2002 that day. (Decision paras. 25–32.) Three orders associated with the lockdown were made by the director-general of health under section 70(1) of the Health Act 1956, coming into effect on March 25 (Order 1; Decision paras. 75–77), April 3 (Order 2; Decision paras. 78–79), and April 27 (Order 3; Decision paras. 80–83), when the country was moved to Alert Level 3.
Before the introduction of the alert system and the lockdown, various measures were taken by the government, including border restrictions, isolation requirements for those arriving in the country, and advising people to cancel large events. (Decision paras. 10–22.) The judicial review proceedings were not concerned with those measures.
Claims Made in the Judicial Review Proceedings
Borrowdale’s challenge to the legality of the lockdown involved three separate causes of action:
The first relates only to the first nine days of the first Lockdown, beginning on 26 March. Although on that day a restrictive order was made by the Director-General of Health under s 70 of the Health Act 1956 (the 1956 Act), Mr Borrowdale says that the public announcements made by the Prime Minister and others unlawfully directed more extensive restrictions.
The second cause of action challenges the lawfulness of the three s 70 health orders made by the Director-General of Health on 25 March, 3 April, and 27 April (the Orders). Essentially, the lawfulness of the Orders is challenged as exceeding the reach of the emergency powers conferred by the 1956 Act, particularly when they are interpreted consistently – or as consistently as possible – with the NZBORA [New Zealand Bill of Rights Act 1990].
The third cause of action is, in effect, a subset of the second. It relates to a specific aspect of Order 1. Mr Borrowdale says that Order 1 involved an unlawful delegation of the Director-General’s s 70(1)(m) power to determine what premises needed to be closed. This is because, he says, decisions about what businesses (and therefore premises) were “essential” were left to be determined and published by unnamed members of the public service, and these decisions were regularly altered. (Decision paras. 5–7.)
High Court Decision
The High Court upheld the first cause of action with respect to the claims under the NZBORA, and dismissed the second and third causes of action.
Essentially, under the first cause of action, Borrowdale claimed that the Statements “entailed directions requiring all New Zealanders to be confined to their homes and to stop all interactions with others outside an individual’s immediate household or ‘bubble’ (the Restrictive Measures).” However, between March 23 and April 3, when Order 2 was made, those directions went beyond Order 1 “and therefore had no legal basis.” (Decision para. 174.) Therefore, he argued, the Restrictive Measures imposed by the Statements “unlawfully limited rights affirmed by the NZBORA,” specifically “to manifest religion and belief, freedom of assembly, freedom of association, and freedom of movement.” (Decision para. 175.) Furthermore, Borrowdale argued “that the Restrictive Measures constituted the exercise of a pretended power of suspending or execution of laws (namely the rights affirmed by the NZBORA) and were accordingly illegal by virtue of s 1 of the Bill of Rights 1688 [BOR 1688].” (Decision para. 176.)
The government argued that “the Statements were only informative: guidance, not commands.” (Decision para. 178.) The Law Society submitted that “there was a disjunct between the Restrictive Measures and the restrictions imposed by Order 1. Because of this disjunct, the Statements were problematic in light of the rule of law. Though the disjunct was corrected when Order 2 was issued, that Order was presented as simply providing clarity and further guidance.” (Decision para. 179.)
The High Court considered that, while the Statements contained much “soft messaging,” they were also “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’.” (Decision para. 184.) Therefore, it was of the view that the Statements “conveyed commands, not guidance.” (Decision para. 185.) The court had “no doubt that the Statements conveyed that there was a legal obligation on New Zealanders to comply: to stay home and remain in their bubble.” (Decision para. 191.) It also concluded that “the Restrictive Measures limited affirmed rights and freedoms” under the NZBORA. (Decision para. 199.) The court then examined whether those limits were “prescribed by law,” under section 5 of the NZBORA. (Decision paras. 200–226.) Section 5 provides that “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Having considered the arguments put forward by the director-general and others, the court concluded that
the Restrictive Measures imposed on New Zealanders by way of the Statements for the nine days between 26 March and 3 April went beyond the terms of Order 1. The Restrictive Measures were therefore limitations on NZBORA rights that were not prescribed by law. (Decision para. 240. See also Decision para. 225.)
Nevertheless, it added that
[i]t is important, however, to keep our conclusion in perspective. The situation lasted for nine days. And it occurred when New Zealand was in a state of a national emergency fighting a global pandemic. The Restrictive Measures could have been lawfully imposed had the Director-General’s powers under s 70(1)(f) been exercised sooner – and he would have done so, if he thought it necessary. These are matters we return to later, when we address the question of relief. (Decision para. 226.)
The court also found that the Restrictive Measures “did not, however, constitute a suspension of either laws or their execution in terms of the BOR 1688.” (Decision para. 240.)
In terms of relief, the court considered the arguments of the parties related to whether a declaration would be an appropriate remedy with respect to the breach of the NZBORA. (Decision paras. 283–291.) It concluded that “[t]he rule of law requires that the law is accessible and, so far as possible, intelligible, clear and predictable,” and that “[t]he required clarity was lacking here.” Furthermore, “[a]lthough 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.” (Decision para. 291.) It therefore made the following declaration by way of relief for the first cause of action:
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. (Decision para. 292.)
As noted above, the Court dismissed the second and third causes of action, finding that “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” (Decision para. 139), and that
[t]he 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. (Decision para. 279.)
Government’s Reaction to the Decision
In a press release, the attorney-general said that “[i]t is very satisfying that these orders have been upheld. We can be confident in the Orders made and enforced.” With respect to the court finding a breach of the NZBORA, the attorney-general pointed to the court’s statements that the measures were a reasonable and proportionate response to COVID-19 and that they should be seen in the context of the rapidly developing health emergency. He further stated that
[t]he Government was trying to educate people about the health risks and transition them quickly to take actions that curtailed normal freedoms like staying at home to stop the spread of the virus. In the end the measures taken by the Government worked to eliminate Covid-19, save lives and minimise damage to our economy.