Barry Soper writes:
Hats off to Andrew Borrowdale. Who is he, you may well ask? He’s a Wellington lawyer – in fact he used to write laws for Parliament.
He was so agitated about the lack of legal grunt behind the country being locked down on March 26 that he took a case to the High Court to challenge it – and today he won.
Borrowdale didn’t argue about the wisdom of people staying at home, but he did argue about the Government’s right to order them to do so.
His view was reinforced by a Crown Law Office opinion, that he didn’t see before mounting his challenge, circulated to interested parties. The police top brass saw it and warned its officers that if they arrested people for being out and about during the first nine days of the lockdown they could be skating on thin ice.
The court ruling has surely thawed the ice, and those who were arrested by the cops in the first nine days could now have a case for wrongful arrest.
The High Court bench of three justices found that for the first nine days of the lockdown the Government’s requirement that Kiwis stay at home was justified – but unlawful.
Yes the Government made a series of announcements that were illegal. Will any heads roll for this? Of course not.
The level of incompetence here is quite staggering because the Government had all the powers it needed to enforce a lockdown. The Court ruled that the law allowed the Government to implement a lockdown.
The problem is none of the geniuses in Government thought for the first nine days that they should do anything more than hold press conferences and make press releases about what they wanted New Zealanders to do. They didn’t even bother to get a legal order backing up their statements.
If what they did on Day 9, they had done on Day 1, then everything would have been fine. But somehow the Attorney-General and others never thought about the need to actually follow the law as set down under the Acts of Parliament that specifically existed for a situation like this.
When the legality was initially questioned by Newstalk ZB and the Herald, Attorney-General David Parker took to Facebook for the best part of an hour, telling us what they’d done had the full backing of Crown Law (an opinion that was never released).
Parker said there were plenty of commentators poring over every comment being made by the Prime Minister, the Director-General of Health and himself, but he insisted they were right. It turns out they were wrong.
Responding to the court’s decision today, Parker conceded the new law should have been written earlier.
Perhaps it would have helped if they actually knew what they were doing before they acted unlawfully.
Parker did a propaganda rant on Facebook rather than actually ensure the law was being followed.