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Permitted Unlawfulness: The New Zealand Coronavirus Lockdown

“Limitation is essential to authority. A government is legitimate only if it is effectively limited.” (Lord Acton)

It is a study both troublesome and perplexing. To what end can a state trample on human rights ostensibly to preserve such objects a public health? The coronavirus lockdowns have become a feature of global politics and relentless mandatory intrusion, the health department made sovereign, assisted by vigorous policing. States have used, and continue to use all manner of measures to confine individuals to homes, mask them, restrict movement, while, in some cases, shutting them up as dissenters and hurrying them into obscurity. The end sought: viral suppression, flattening the curve, elimination. But what might be saved in terms of health will be lost in terms of liberties.

One country made the brave, somewhat quixotic journey to battle the coronavirus to elimination. New Zealand’s Ardern government was determined to quash it. In doing so, it imposed one of the most onerous of lockdowns over the course of March and April, 2020.

It was not without controversy, and Wellington lawyer Andrew Borrowdale took issue with its sheer expansiveness. A particular point of interest for him were the early stages of the five-week lockdown, specifically the calls between March 26 and April 3 by Prime Minister Jacinda Ardern and her officials for New Zealanders to stay home under pain of penalty. The timing is important here as the stay home restrictions were only formally passed on April 3.

The country’s 1956 Health Act provides for what is called a “Section 70” notice, issued by a Health Officer to restrict movement. This can be done if the relevant minister has issued an Epidemic Notice pursuant to the Epidemic Preparedness Act of 2006. This, the Prime Minister did on March 24. Unfortunately for Ardern, the Director-General of Health Ashley Bloomfield’s Section 70 notice, which came into effect on March 26, only covered the closure of businesses. It was, in other words, defective. There had been, for instance, no formal instrument legitimising the need for New Zealanders to stay at home in their “bubbles” or not go to such public spaces as the beach.

In an assessment by insolvency practitioner and columnist Damien Grant, Ardern proceeded to imperially “issue a slew of orders that were outside her remit. Parliament had deliberately kept that power out of our elected representatives and placed it into the hands of competent medical officials.” Those elected representatives were now running amok – at least for a short time.

Other officials also did the same. The then police commissioner Mike Bush, charges Grant, was operating outside his jurisdictional remit in saying “you’re better to stay on the comfort of your own couch or your own home than be cooling yourself on a very cool bench in a police cell.”

The result of this bungling in drafting was only rectified by another Section 70 notice, designed to square the implemented lockdown measures with what authorities could legally do. But it had taken nine days of over-extended and illegitimate power.

The finding by the New Zealand Supreme Court was not exactly a sweeping triumph for Borrowdale or his lawyer Tiho Mijatov, who had argued that generous and permissive interpretations of such health provisions should not happen even during the course of a pandemic emergency. The court took with one and gave with another. But with that, Borrowdale had made a salient and pressing point. The three judges acknowledged that, even during “times of emergency, and even when the merits of the Government response are not widely contested, the rule of law matters.” The executive was not entitled to behave absolutely.

While the court dismissed two out of the three grounds, they did accept Borrowdale’s first contention, in part. They noted announcements by the executive between March 26 and April 3 stating or implying that all New Zealanders needed to “stay at home and in their ‘bubbles’ when there was no such requirement.” These duly limited “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.” The court accepted “that the requirement was a necessary, reasonable and proportionate response to the COVID-19 crisis at that time” but it “was not prescribed by law.”

The substantive effect of the decision will be minimal, even if the lesson on illegitimate power is telling. Prosecutions for breaching the lowdown rules will remain, for the most part, valid. Attorney General David Parker emphasised the didactic point behind the measures: the State as instructor and guide on how to cope with a dangerous pandemic. “The 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.” He claimed these actions to be a success. “In the end the measures taken by the government worked to eliminate COVID-19, save lives and minimise damage to our economy.”

The virus, however, has shown a guile to throw off epidemiologists, health specialists, and politicians. Like Galileo’s observation on the earth, it moves. Even the harshest measures have not guaranteed elimination. Where there is mobility, there is transmission. Even the most sedentary of people will eventually feel the urge to step outside. COVID-19, and more lockdown measures, are now in place in Auckland. To date, Ardern’s reassurance, and one that may have to be revised in due course, is that community transmission has been prevented. She is bound to be more legally attuned this time around.

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14 comments

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  1. Matters Not

    Re:

    rights to freedom of movement, peaceful assembly and association .

    Sounds good, And an enduring principle. But given this virus’s guile (as readily admitted above), might it not also be reasonably argued that any assembly and/or association is potentially (or even inherently) a threat to the resulting freedom (or not) of the hypothetical other? Putting it another way. While an infected individual, may not have had any intention of transmitting this virus, but given its guile – do we judge an infected assembler of the basis of intention or the outcome (particularly if this infected assembler was awaiting the result of a test?)

    More broadly, when it comes to moral judgement – do we judge according to intention or outcome in this instance? What set of ethical principles ought we bring to bear? So many issues in play!

  2. Matters Not

    KK re:

    using the same kind of arguments as some Trump supporters

    Indeed! To be expected. Libertarian Rand Paul being a good example re Trump and Binoy is/was in the same camp as (libertarian) Assange.

    If Assange wins a seat tomorrow … then the spot will be filled by his running mate, Melbourne academic Binoy Kampmark.

    Assange says that Kampmark would not necessarily be kicked out of the seat if he is able to return to Australia at a later date. He told ABC Radio on Friday: “He’d be keeping it warm [but] I wouldn’t want to be in a position where Dr Kampmark was really turning out to be an excellent senator then I would come back and demand to knock him off.

    Not that infects the argument. Just sayin …

    https://www.theguardian.com/media/2013/sep/06/julian-assange-election-london-bunker

  3. Matters Not

    Re:

    have used, and continue to use all manner of measures to confine individuals to homes, … mask them, restrict movement, while, in some cases, shutting them up as dissenters and hurrying them into obscurity.

    But has it really been all manner of means? Don’t think I’ve heard from the religious sermonizing from their pulpits. Pontificating about the sanctity of ALL human life – not just an unwanted foetus or two. Why haven’t they been enlisted to rouse (and confine) the faithful? Where are the placards? Or are they saving their powder for more opportune times?

    Surely there are those who pay homage and acknowledge God’s wrath? Surely we should provide them with the opportunity to stand up and be counted! No time like the present for thoughts and prayers. C’mon Scott – lead the way!

  4. Kaye Lee

    ” what might be saved in terms of health will be lost in terms of liberties”

    Liberty, sovereignty, mortality!

    Is that the new catch cry?

    How many deaths are acceptable collateral damage? What if your “liberties” keep infecting people?

    The vast majority of people are managing within the rules. The only way to cope is lockdown to get numbers really low and then isolation of outbreaks. This talk of freedom is bollocks.

  5. Ploughed

    Hilarious testing of non sequitor one hopes it cost the Mr. Borrowdale a shitload

  6. wam

    NZ has half the population of sweden with 1700 cases and 22 deaths against 86000 cases and nearly 6000 deaths, australia 25m people 24 thousand cases and 485 deaths.
    The mask is to protect others from the wearer. It is an aid to freedom of movement, peaceful assembly. Personal liberty depends on altruism. Brakes are compulsory to protect others and seat belts are compulsory to protect yourself. QED
    There are conservatives who take the zero deaths in the police as evidence of the impotency of the virus. Their friends say in america the death certificate with covid as the cause is worth considerably more than other causes and if a ventilator is involved an extra premium is paid. Whether those are factors in the number of deaths depends on your trust of hospital administration.

    ps nearly pissed ,myself to hear the rabbott congratulate the winner of the Wales open golf with the words ‘thanks for showing us we are nearly back to normal’.

  7. New England Cocky

    Oh dear, there is an epidemic unseen for about 100 years and the uninfected Australian armchair specialists are quibbling about the NZ Prime Minister ”stealing democracy” to prevent Kiwis being killed by COVID-19. An interesting point of law for the living, but useless for the dead victims.

    Now look at the OZ COALition response; go softly to the Rugby League, boost the profit lines of corporations, allow part-time, casual and gig workers to starve while abandoning foreign students to their fates. Meanwhile, Benito Duddo has been establishing a police state to chastise members of the Liarbral Party who refuse to vote for him as Prim Monster of the worst economic managers advised by multinational accountancy corporations being paid a motza to make Australia the worst third world export economy in the OECD.

  8. Kathryn

    For God’s sake, WAKE UP! Just stay home and mask up if you have to go out! It’s bloody simple and saves lives. Nearly ONE MILLION people dead around the world because idiots – especially the me-me-me fools in America – REFUSE to think of others and self-isolate and do the right thing until the pandemic is under control.

    There are very GOOD REASONS why America has the highest number of Covid-19 sufferers – more than 5.68 MILLION people suffering with Covid-19 and more than 178,000 dead! It’s because of their obsession with their own selfish rights and the fact that so many of them REFUSE to self-isolate, wear masks and do the right thing!

    Make no mistake about it:
    – Covid-19 is deadly;
    – Covid-19 is highly contagious;
    – Covid-19 does NOT discriminate;
    – Covid-19 is a lethal pandemic and spreads like a virus!

    History has shown that SELF-ISOLATION is the ONLY way to get a viral pandemic under control. Ebola and the Spanish Flu were contained through self-isolation.

    STOP WHINING AND COMPLAINING – JUST DO IT and save YOUR life and the lives of others!

  9. Phil

    WHO warned covid might become endemic. What are Kiwis going to do in that case? Hunker down, shelter in place watch Netflix and enjoy Uber eats forever? Great solution except for 1 thing, what happens to society in a year or 2 with only a handful of people working? Vaccine as a final solution as suggested by Bill Gates? Influenza, 102 years old and going strong, no vaccine has proven a panacea to all strains. 102 years. In World War 2 youth lined up to fight Nazism, fear of death brushed aside. Now we’re expected to shake in our boots at the thought of dying in old age with a virus. Fear of death, control the populace with fear of death. Too easy.

  10. Michael Taylor

    Carol and I have been bunkering down for almost six months, yet we don’t believe that we’ve lost any of our liberties.

    Sure, we’d love to go for a drive in the country, or go to our favourite restaurant on special occasions (like today – our 7th wedding anniversary 😀). And we’d like to visit family and friends, etc etc etc. But we can’t, and we accept the reason why.

  11. DrakeN

    Ah!
    Liberty!
    The liberty to draw more than your fair share from the common weal and to use the proceeds to manipulate society and its wellbeing for your own ends.
    Welcome our Lords, Ladies and Masters; the plutocrats who dig up our land and sell it off for obscene profit; using the garnered mammon to manipulate governments into bowing to their demands.
    Liberty for them, servitude for the rest.
    Liberty divorced from responsibility for the wellbeing of those who contribute so much to their freedoms.
    Ayn Rand would be proud of them.

  12. Matters Not

    Watchers of The Drum tonight (24 August) will know that the religious (Catholic and Anglican at least) have now entered the debate. Their concern flows (broadly) from the widespread use of human cells in vaccine development. (Apparently, virtually all modern vaccines make use of human cells in the development phase.)

    Given that Morrison declared he would (and could) keep his private (religious) life completely separate from his (secular) political life, Labor should now lob a few intellectual grenades (perhaps via Question Time) that expose the hypocrisy (and impossibility) of his stance(s). And make sure it’s a female who leads the charge. Don’t let this chance go past.

  13. leefe

    What a specious load of claptrap. I expected better from Kampmark. Everyone needs to remember that rights are inseperable from responsibilities, and in a society – sorry Ms Thatcher, but we do still live in a society – we have responsibility towards every other member. Every person’s rights end where they impinge upon another’s, especially if they affect health and life. This is what the Seppo ammosexuals hhave never been able to understand, much less accept.

    There are those who point to the relatively low (they claim) death rate, ignoring the reduced spread that has resulted from lockdown and related policies and the far more important ongoing critical health issues suffered by many survivors. This isn’t just a slightly stronger flu, this virus can create major permanent damage to the lungs, heart, liver and other organs.

    I live in one of the least affected areas of Australia. We will remain isolated from the mainland and the rest of the world at least until the end of the year. For once, I am in complete agreement with our misgovernment.

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