First nine days of lockdown unlawful, but justified

A court decision has found that the Government breached the New Zealand Bill of Rights Act 1990 in the first nine days of the lockdown.

So, what happened?

A three count complaint was made that the Government did not act within the scope of the law during lock down. Andrew Borrowdale took the Government to court, aggrieved that his rights of freedom of movement and freedom of association were being infringed on during lock down. His first point regarded comments made by Prime Minister Jacinda Ardern and other officials concerning the announcement of lock down and its onset. His second related to three orders and how they were linked to each other.

In short when New Zealand went into lockdown at 2359 hours on 25 March 2020, the Government had overstepped the order of the Director General of Health, Dr Ashley Bloomfield that forbade congregating except with social distancing.

This is to say that whilst the New Zealand Bill of Rights Act 1990 was breached by the lockdown for the first nine days, the rapidly evolving COVID19 situation meant that the Government was left with little choice but to act rapidly. Whilst staying in our homes was not a legal position until 03 April 2020 it was one that was found to be justified, reasonable and proportionate to the emergency as it stood at the time.

However only on this count, article 1, of the case laid, did the Court find in favour of Mr Borrowdale. The other two counts were dismissed.

Unsurprisingly this has drawn an angry reaction from the Opposition in Parliament today who attempted to suggest that the Government is a body with two arms but does not know what each arm is doing. However one could argue that the Government, in a time of unprecedented urgency where New Zealanders were being put on an emergency footing that had not happened since World War 2, if at all, literally did not have the time to go through and double check their legal footing before it became necessary to lock the country down.

Some will call this evidence that the Government cannot and should not be trusted with anything. But many of these are the same people currently promoting conspiracy theories around the COVID19 response when there is plenty of evidence that New Zealand’s success stems in no small part from reacting as we did. Yes, in hindsight the Government should have taken a bit longer to confirm the legal ground that it was standing on, but if we had waited another week or however long before putting lock down into effect, perhaps we would have a three digit death toll instead of 22.

That is not okay.

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