The New Zealand Government’s “go hard, go early” response to the COVID-19 pandemic has garnered widespread praise – both in New Zealand and internationally. On March 25, less than four weeks after New Zealand’s first COVID case was diagnosed, the country was put into a state of “Level 4 Lockdown”, reducing social and economic life to a bare minimum. Everyone was instructed to stay at home, except for limited “essential” purposes (in short, supermarket shopping, essential medical treatment, and brief localised exercise such as a walk or a run). All businesses were closed, except for those providing “essential” services. Physical proximity to those not in a person’s residential “bubble” was prohibited.

These measures undoubtedly have been effective, with the country now on a path to eliminate the virus. For that reason, it is perhaps not surprising that discussion of their legal status has been muted. Nevertheless, questions surrounding the legality of the lockdown received their first outing in the High Court this week, when Peters J dismissed an application by two litigants in person for habeas corpus (A v Ardern [2020] NZHC 796; B v Ardern [2020] NZHC 814). Her Honour held in both cases that the conditions of the lockdown did not amount to “detention”, that the lockdown was in any event lawful, and that many of the issues raised by the applicant were not suitable for determination by way of habeas corpus.

These applications were doomed to fail. They were poorly argued, framed in large part as a personal attack against the Prime Minister and Director-General of Health. In A’s case, the applicant was already serving a sentence of home detention. Nevertheless, we argue here that the formal legal status of the lockdown is far from secure. Given the significance of the threat to which the Government is responding, the New Zealand courts may well be reluctant to uphold a legal challenge. But the tenuous legal foundation of the lockdown regime represents a significant constitutional problem that needs to be addressed.  

New Zealand’s Parliament resumes after a five-week adjournment on Tuesday April 28. Now is therefore an appropriate moment to draw attention to the legal deficiencies in the regime, with a view to prompting legislative action.

The legal basis for New Zealand’s Lockdown

Unlike in the United Kingdom, the Government has, to date, located its lockdown powers entirely under the pre-existing legal regime relating to civil and public health emergencies.

Moving into the Level 4 Lockdown, the New Zealand Government issued an “epidemic notice” under the Epidemic Preparedness Act 2006 and declared a state of national emergency under the Civil Defence and Emergency Management Act 2002. These two steps triggered a range of executive government powers. Most significantly for our purposes, they unlocked a set of coercive powers reposed in medical officers of health under s 70 of the Health Act 1956. In practice, the s 70 powers have been exercised by New Zealand’s chief public health officer, the Director-General of Health.

Section 70(1)(m) empowers a medical officer of health (of which the Director-General is one) to make an order (which must be published or broadcast to the public) closing premises and forbidding people to congregate in any outdoor places of amusement or recreation. On the day the Level 4 Lockdown commenced, the Director-General relied on this power to order the closure of all non-residential premises, except for those expressly exempted. He also prohibited people from congregating in outdoor places of amusement or recreation, unless they remained two metres apart (“the s 70(1)(m) notice”).

Although this seemed to be the primary legal basis for the lockdown restrictions at the time, official Government statements, as well as Police enforcement action, purported to impose far greater limits on civil liberties. New Zealanders were directed to stay home in their bubbles, to receive no visitors, and to venture out only for the limited purposes set out in the opening paragraph above. While not rising to the levels of the UK – where the population were told that new rules were in place to enforce similar lockdown measures some three days before the relevant regulations were even promulgated – the gap between the rules as written and as said to apply quickly became clear.

On April 3, the Director-General moved to address this discrepancy. He issued a new notice – this time under the Health Act, s 70(1)(f), which empowers a medical officer of health to require persons to be isolated or quarantined. On this basis, the Director-General ordered that all persons in New Zealand remain in their residences and only leave for the purpose of “essential personal movement” as defined in the order (“the s 70(1)(f) notice”).

Police operational guidelines confirmed that these twin Health Act notices provided the primary basis for legal enforcement of the Level 4 Lockdown restrictions. The Health Act 1956 empowers the police to take a range of actions to check and enforce compliance with these orders, and a failure to comply is an arrestable offence punishable by up to four months imprisonment. To date over 400 people have been charged with doing so, with one man already sentenced to a month’s imprisonment.

In the main, the Police have preferred not to rely on a parallel coercive powers regime to be found in the Civil Defence Emergency Management Act. That regime has its own problems, which are not discussed here.

Questions regarding this legal basis

It is clear that the Level 4 Lockdown rules have been very successful in their intended aim of eliminating the virus from the country. Furthermore, the New Zealand public’s support for (and voluntary compliance with) their requirements has been very high. From an effectiveness and social-licence perspective, there is little to criticise in them. However, the legal status of the Level 4 Lockdown rules is far more tenuous.

A first and critical question concerns whether Cabinet has overstepped the mark in purporting to direct the country into lockdown. Throughout the crisis, decisions as to whether and when to go into lockdown, and exactly how civil liberties are to be restricted, have been presented as residing in Cabinet. But that is not so. As set out above (and as acknowledged internally within Government in a Cabinet paper that has just been released), the only relevant coercive powers lie with medical officers of health under s 70. This raises a question as to whether any of Cabinet’s statements (especially, those backed up by coercive Police action) amount to a purported suspending of the law without consent of Parliament contrary to the Bill of Rights 1688. It also raises the possibility that the Director-General might be accused of acting under dictation in the making of his various orders.

Secondly, there is a real question as to whether the s 70 notices are ultra vires. Section 70(1)(m) permits a medical officer of health, by way of public notice, to “require to be closed … all premises … of any stated kind or description”. It is by no means clear that permits the Director-General to close all premises, subject to an express exemption – as he did in the order. Further, the s 70(1)(m) notice then purports to define the scope of the exemption by way of cross-reference to a list of essential businesses located on a website run by a completely different government department. This delegation of the effective scope of the order finds no express basis in the Health Act.

The s 70(1)(f) notice is arguably even more vulnerable. An initial question is whether the Level 4 Lockdown rules actually are a form of “isolation” or “quarantine”, given the broad exceptions for essential workers and essential activities that attach. Even if they are, it is highly debatable whether the Director-General’s power to “require persons … to be isolated or quarantined” empowers an order isolating or quarantining all persons throughout the country rather than specifically identified individuals. It is a power exercisable by a single public health official, with no requirement to consult anyone else in the making of the decision. Further, whereas s 70(1)(m) is framed as an “order” that must be published or broadcast to the world at large, s 70(1)(f) is framed as a “requirement” and contains no equivalent notice provision. This strongly suggests it is intended to be exercised on an individual-by-individual basis rather than a nationwide one.

To be clear, Peters J in A v Ardern specifically rejected the argument that the s 70(1)(f) order was ultra vires (albeit in a brief obiter paragraph). In context, that outcome was unsurprising. Nevertheless, we think the point deserved fuller consideration.

A third set of questions concerns the consistency of these notices with the New Zealand Bill of Rights Act 1990 (NZBORA). The effect of that Act is that the Health Act notices can only impose limits on a range of civil and political rights (including the freedoms of expression, association, peaceful assembly and movement) if those limits are “demonstrably justified”. Combating COVID-19 clearly provides an exceptionally strong justification for limiting rights, and any court would be likely to accord the Government considerable latitude. Nevertheless, it can certainly be argued that some of the limits imposed by the notices go beyond what is necessary. For example, the s 70(1)(m) notice prohibits the physical publication and distribution of periodical magazines, despite allowing daily and weekly newspapers to continue to do so. And the s 70(1)(f) notice expressly excludes surfing as a form of permitted exercise, while cycling remains permitted despite being an activity with a higher rate of injury.

Lockdowns, legislative design and the rule of law

The COVID-19 pandemic has presented a novel regulatory challenge of a kind not faced in western democratic societies for at least 100 years. For that reason, it is not surprising that some countries (including the United Kingdom) have felt the need to rush through new legislative powers.

In New Zealand that did not happen, but perhaps it should have. We have identified above some specific deficiencies in New Zealand’s legal regime. Underlying these specific problems lie broader questions about where power should reside to limit civil liberties on such a significant scale. The instinct of the New Zealand’s government that at least some of these powers ought to reside with Cabinet is probably the correct one. But it finds no current basis in New Zealand law.

This post is written as New Zealand transitions from Level 4 Lockdown into Level 3, at which the country will see some (limited) loosening of restrictions on civil liberties but the essence of the lockdown regime will remain in place. The timing and details of the move to Level 3 have, again, been presented as a decision of Cabinet and will, again, be effected through further section 70 notices described as “orders”. Thus, the legal difficulties attending the Level 4 Lockdown have not, in our view, been resolved.

Although these legal deficiencies expose New Zealand’s COVID-19 response to a degree of on-going legal risk, A v Ardern and B v Ardern demonstrate how reluctant New Zealand courts may be to uphold a legal challenge. Beyond the potential for judicial challenge, however, lie deeper rule of law considerations. The Level 4 (and upcoming Level 3) lockdowns impose the most extensive restrictions on New Zealanders’ lives seen for at least seventy years; perhaps ever. No matter how “necessary” these may be, we should expect such restrictions to have a clear, certain basis in law and be imposed through a transparent and accountable process.

It is to be hoped that, when it resumes next week, New Zealand’s Parliament will take the opportunity to put the lockdown regime on a more secure legislative footing.

Professor Andrew Geddis, Faculty of Law, University of Otago

Professor Claudia Geiringer, Faculty of Law, Victoria University of Wellington

(Suggested citation: A. Geddis and C Geiringer, ‘Is New Zealand’s COVID-19 lockdown lawful?’, U.K. Const. L. Blog (27th April 2020) (available at https://ukconstitutionallaw.org/))