The legality of the Covid-19 lockdown in New Zealand has been thrust into the spotlight, with valuable analysis from colleagues Profs Geddis and Geiringer on this blog, subsequent public airing of that legal debate, and issue of judicial review proceedings to test the regime on the back of that analysis. Questions about the validity of the orders under the Health Act – closing business premises and confining all New Zealanders to their household bubbles, for over 6 weeks now – have been percolating in legal quarters. Those doubts have recently seeped into public discourse and become part of political argument. This risks disrupting the delicate equilibrium of public acceptance that has characterised the lockdown – a lockdown that seems to have been pretty successful, so far, in breaking the chain of transmission and stamping out the virus.

We take a more benevolent view on whether the orders are valid and consider the empowering provisions as capable of a more generous reading than Geddis and Geiringer argue in their original post on this blog (and related posts, interviews and remarks). While arguments about validity remain finely balanced, we believe it is important that the contrary view is also explained. Our view is consistent with the underpinnings of the orders as sketched at a high level by the Attorney-General.

We also fear that some of the current public debate risks presenting the arguments as clear cut. Or, if the courts reach a different view on the empowering provisions than government, as impugning the fidelity or competence of officials and their commitment to the rule of law. None of this, in our view, follows from our colleagues’ analysis. Our constitutional system calls on government ministers and officials to interpret and apply the law as best they can and in good faith – and there is no reason to suspect that they have done otherwise in this situation, even if courts subsequently take a different view on any question of legal meaning.

The orders under section 70(1) of the Health Act 1956

New Zealand’s lockdown has been achieved through interwoven layers of law, discretion and nudges (Knight, ‘Lockdown Bubbles through Layers of Law, Discretion and Nudges’, Verfassungsblog (7 April and 3 May 2020)). In fact, when all is ultimately said and done, it may be that the law was less important to the success of the lockdown in the light of the broad social consensus that surrounded its first few weeks.

But, for the most part, the legal heavy lifting has been achieved by orders first issued in early April under the Health Act 1956 requiring ‘all persons within all regions of New Zealand to be isolated or quarantined’ by ‘remain[ing] at their current home or place of residence, except as permitted for essential personal movement’ (the latter prescribing exceptions for accessing essential business, limited recreation, shared bubble arrangements and the like). Some earlier orders also laid some foundation for the lockdown, which we return to briefly later.

The power relied on for the isolation orders is section 70(1)(f) of the Health Act 1956: while an epidemic notice or state of emergency is in force or when otherwise authorised, a medical officer of health may ‘require persons, places, buildings, ships, vehicles, aircraft, animals, or things to be isolated, quarantined, or disinfected as he thinks fit’ for the purpose of preventing the outbreak or spread of any infectious disease.

The key issue identified by Geddis and Geiringer is whether the power is a general one, which can be applied to: (a) all persons at large; and (b) regardless of whether they are infected or have been exposed. They argue it should only be used in a targeted manner in relation to specific (and infected or exposed) individuals. In their view, the schematic context weighs against the power in s 70(1)(f) having generalised reach, fortified by normative pull from the principle of legality and NZ Bill of Rights Act.

Judicial review proceedings were last week issued by a former law drafter, Andrew Borrowdale, challenging the orders on this basis. Those proceedings followed Court of Appeal judges raising their eyebrows at the orders in doomed habeas corpus applications from serial litigants-in-person and suggesting the proper way to test the orders was by judicial review (A/Nottingham and B/McKinney v Ardern [2020] NZCA 144).

Our view on the section 70(1)(f) power

We consider the empowering provision in s 70(1)(f) can be read generously to empower generalised orders isolating all members of the public when looking at the text, context, legislative scheme, history and purpose. Our analysis also takes into account higher-order interpretative principles, institutional concerns and the demands of accountability.

First, the text of (f) is plainly capable of supporting generalised orders. On its face, the words ‘all persons’ are wide enough to empower generalised orders. Nor is there any explicit requirement a person must be infected before they can be isolated or quarantined. Indeed, the combination of verbs and other subjects in (f) seems to open up the possibility of some prophylactic intention; there is nothing apparent in the text suggesting this intention should not also apply to people, regardless of whether they are known to be infected. There is also no contest that the preconditions for an order are met (epidemic notice or state of emergency; exercised for the purpose of preventing the outbreak or spread of an infectious disease; done by a medical officer of health (by dint of the director-general’s statutory status as such under s 22)). Nothing much turns on the fact that the director-general has implemented the requirement through ‘orders’ – a coercive requirement can be delivered in various ways.

Secondly, the context and legislative scheme have indications pulling in either direction. We agree the contradistinction with the power in s 70(1)(m) to close premises – subject to obligatory public notice – is the strongest indication (f) might have been designed to address individualised instances of infection. However, the power in (f) can also be contrasted with Part 3A of the Health Act 1956 which contains an extensive regime for managing individualised quarantine of infected persons (replacing, in more comprehensive form, a power which previously existed in simple form in s 79) – suggesting (f) is designed to be for more generalised application.

Thirdly, the purpose and history of the infectious disease regime probably favour a generous reading. The power is a long-standing one (Health Act 1920, s 76(1)(f); Public Health Act 1908, s 18(f); Public Health Act 1900, s 19(6); Bubonic Plague Prevention Act 1900, s 4(1)). It is not hard to read the regime as enabling special emergency-type powers intended to address the dangers of fast-moving and dangerous infections, originally adopted, it seems, to address diseases like typhoid and measles, as well as an outbreak of plague in Australasia (Rice, ‘The Making of New Zealand’s 1920 Health Act’ (1988) 22 NZ Journal of History 3). Even with an ambulatory approach (Interpretation Act 1999, s 6), there is nothing to suggest these risks are inapplicable to the circumstances of modern time. Viewed in this light, a broadly-framed power, enabling responsive and nimble action, is understandable. And that does not underplay the importance of the need for constraint and justification for severe coercive action; as we explain later, we think these matters might be better assessed in the context of the application of that power, not in the definition of the jurisdiction to exercise that power.

Fourthly, the normative force of the principle of legality and the direction in the New Zealand Bill of Rights Act 1990 to favour rights-consistent meanings cannot be ignored. We agree they encourage a narrow view of the (f) power. However, we do not think these interpretative principles dictate a clean sweep for rights, especially in the case of a public health statute which inevitably anticipates rights being so limited. The Bill of Rights Act direction is always subject to justified limitations mandated by s 5 and there is an argument that the principle of legality should similarly be injected with some sense of reasonable limits (Wilberg, ‘Common Law Rights Have Justified Limits’ in Meagher and Groves (eds), The Principle of Legality in Australia and New Zealand (2017)). A complex and delicate judgement is needed about the extent to which these interpretative principles can nudge legal meaning in this context.

Fifthly, we are mindful that institutional dimensions are also relevant. As originally conceived, these special powers sat in a devolved, localised regime. Authority was vested in expert clinicians, acting in their community, as regionalised medical officers of health. This might sit uncomfortably with their exercise at a national level by a senior civil service, especially absent the usual democratic processes that fuel nationwide and generalised law-making. We accept that many infectious diseases might be best managed in a localised, decentralised way. However, we are not convinced this forecloses the application of the power in a more generalised and widespread way.

The director-general and Cabinet have been engaged in a delicate tango, we think, to navigate these institutional concerns. In other words, the implementation of the regime has sought to respect the operational independence of the director-general, while also seeking to deliver on modern expectations about democratic, collective, transparent and accountable policy- and law-making.

Our colleagues have, quite rightly, pointed to the important independence of the director-general in making decisions under s 70. However, we are not convinced that this independence should always exclude seeking the advice of Cabinet. For example, some considerations relevant to enacting the lockdown, such as economic and social considerations, are beyond the director-general’s usual domain and expertise – Cabinet’s all-of-government perspective enriches the decision-making. And, in some ways, the extra-legal alert level framework adopted for the pandemic is a way to give Cabinet voice on lockdown expectations, while avoiding concerns about the director-general’s independent enforcement discretion is surrendered.

Finally, we return to the question of limits and controls on the (f) power, especially where they might properly bite. We think there is good case for saying any limits and constraints should engage with the power in discretion in particular cases or sorts of cases, rather than in the more abstract definition of preconditions to its exercise. As we have tried to explain, painting (f) as a broad special or emergency power has some merit but that is not to abandon any legal limitations on its exercise, especially relative to rights. But testing these matters in application allows a more fact-infused and contextualised assessment of propriety, reasonableness and proportionality – and without unduly neutering the beneficial power of (f) to address emergencies such as this. Not only can such assessment grapple with the necessary rights-balancing, it can also take in its stride the institutional and democratic dimensions which might inform propriety or otherwise. For example, independent on-the-ground exercise of discretion, free from political input, may be especially important for application of individualised orders but the contrary might be preferable for generalised orders.

Our view on the section 70(1)(m) power

We also have doubts about the argument from Geddis and Geiringer on the validity of the orders closing premises under the s70(1)(m) power. They are concerned that the power to close ‘all premises … of any stated kind or description’ was used to close all premises in the country.

We make two points. As a factual matter, the orders did not close all premises. Premises of essential businesses providing the necessaries of life – indeed, a large number of premises – remained open, albeit framed by way of exception; dwelling-houses and civic institutions are also statutorily exempt from such closure. And there is little in the wording to suggest that this special power could not be used in an aggregated and comprehensive fashion.

We would agree that, in some cases, it appears that this power was used inconsistently in the level 4 lockdown, especially in the earlier days when there was genuine uncertainty about what was ‘essential’ and the website listing categories of business kept evolving. But that does not go to the general legality of the use of (m) power.

The prospect of the argument in litigation

To repeat, the arguments about the validity of the orders under the (f) power are not clear cut. If you put ten legal scholars in a room to debate them – and we have, virtually at least – you would end up with ten different perspectives. The question may be ultimately and definitively resolved by the courts, in their constitutional role as arbiters of legal meaning.

But, like Geddis and Geiringer, we think judges might have a degree of reluctance about unravelling the acutely important and largely effective lockdown regime, on a contestable point about legal interpretation. Strictly speaking, New Zealand courts show no deference to the administration on matters of interpretation. However, it will be difficult for the courts to ignore that the debate is about authorisation, not the merits, of the lockdown. Questions about authorisation are, of course, more than mere technical matters – rule of law and democratic expectations are in play too. But, perhaps surprisingly, there are few quibbles with some form of lockdown to address the risk of the virus; in general terms, its necessity and appropriateness has not been seriously challenged.

Regardless, we think the litigation pathway will probably present some tricky hurdles anyway. Already the Court of Appeal has refused an application for the challenge to be argued first in that court (Borrowdale v Director-General of Health [2020] NZCA 156). In doing so, the President painted the issue as one of broad, factual complexity needing evidence of the policy- and law-making process and possibly cross examination. This rich lens suggests the court might not be persuaded the issue is simply a pure question of legal interpretation. The likelihood of mootness also looms large. New Zealand is expected to move to alert level 2 shortly, with a new set of legislative rules (as yet unseen) for physical distancing and risk management. The Health Act orders in contest will expire – and so might too any live issue for determination in the judicial review proceedings. It looks unlikely the claim will be heard before lockdown ends, especially if the director-general is given time to marshal the evidence necessary to defend the orders.

Of course, even if Mr Borrowdale’s global challenge fails, that certainly won’t – and shouldn’t – be the end of questions about validity. Any of those charged with breaching the lockdown regime will still be able to contest the legality of the s 70 orders, as they applied to their individual actions and circumstances. The rule of law demands as much.

Fitness-for-purpose of section 70 as a matter of legislative design

Our analysis here has focused on the validity of s 70 orders as used to impose a lockdown to address the risks of Covid-19. Our arguments here should not be taken as endorsement of the s 70 regime as the ideal way, as a matter of legislative design, to address infectious diseases such as this.

We continue to have doubts about the fitness-for-purpose of the Health Act, and allied Epidemic Preparedness Act and Civil Defence Emergency Management Act, to deal with pandemics like this. We echo Geddis and Geiringer’s concerns about the normative virtue of these blunt powers and mechanisms, even if we think they can be stretched to work in this current crisis.

We would have preferred the government to have, at least, adopted a quick legislative fix to give the lockdown a stronger legal foundation and deeper democratic character, even if that was logistically difficult in the fast-moving times. Certainly, we are adamant the regime needs to be thoroughly reviewed and reshaped once the crisis ends. But before one too readily says that the rule of law would have been better honoured by quick-fix legislation during the crisis, one might also need to consider what such legislation might have looked like – and whether more significant incursions into rights might have resulted. The shades of grey in the current framework may have actually caused some pause on the part of those shaping and enforcing the lockdown – to the benefit of the rights and liberties of the public.

Conclusion

The arguments about the validity of the isolation orders are finely balanced. We have sought to present an alternative view to Geddis and Geiringer and have set out the case for the validity of the orders. In the end, we think their concerns are more normative — they have a vision for a stronger and more democratic legal foundation for lockdowns to address pandemics. On that point, we agree.

Dr Dean R Knight and Professor Geoff McLay, Victoria University of Wellington

Thanks to Eddie Clark and Alison Young for comments on a draft version of this post.

(Suggested citation: D. R Knight and G McLay, ‘Is New Zealand’s Covid-19 lockdown lawful? – an alternative view’, U.K. Const. L. Blog (11th May 2020) (available at https://ukconstitutionallaw.org/))