Andrew Geddis and Claudia Geiringer write:
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.
That is a very interesting point. Can a provision to close all premises of a specific kind be used to close basically all premises in NZ?
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.
Again a very valid point. Was the intent to quarantine a subset of peeople, rather all NZers?
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.
It’s a pity the magazine publishers have no money to challenge this in court. I think they would have a very good case.
Also we have the situation where the Police have admitted they were acting beyond their legal powers in the first nine days. The BFD has the memo:
I know that staff at the front line are using a range of tactics with the right intent but not supported by the law.
That is from the Deputy Police Commissioner.
What we know now is that those actions were ultra vires: acting or done beyond one’s legal power or authority. Businesses were closed on Police orders, shopkeepers threatened with arrest, and all without any legal basis. This may well open the government up to protracted legal action for harm caused by illegal action by the enforcement arms of the state.
Yes any actions taken in the first nine days before the Director-General of Health issued his notice are shaky.
I’m a supporter of the Level 4 lockdown. I think it is good pretty much everyone except the Minister of Health complied. But it does reek of incompetence that there may have been no legal basis for it for the first nine days, and a somewhat shaky one thereafter.
A more competent course of action would have been to pass specific enabling legislation.