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High Court rules some of Covid-19 level 4 lockdown was unlawful

Aug 19, 2020

Attorney-General David Parker says there's been no decision yet on a possible appeal to the high court ruling that some of the country's alert level 4 lockdown was unlawful.

Lawyer Andrew Borrowdale had argued the Director-General of Health Ashley Bloomfield went beyond his powers and put the country into lockdown unlawfully.

Three judges heard the judicial review at the High Court in Wellington late last month and their written decision has been released this afternoon.

Borrowdale had sought the court rule that three actions by the government in the early stages of the lockdown were unlawful.

The first was public statements made by the prime minister and other officials during the first nine days of lockdown, the second was regarding three orders made under the Health Act, while the third was about the definition of essential services.

Police checking motorists going onto the motorway in Auckland during the alert level 4 lockdown in April. Photo: RNZ / Claire Eastham-Farrelly

The judges have concluded that from 26 March to 3 April, the requirement for people to stay at home and in their bubbles was justified, but unlawful.

"Those announcements had the effect of limiting 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 judges said.

"While there is no question that the requirement was a necessary, reasonable and proportionate response to the Covid-19 crisis at the time, the requirement was not prescribed by law and was therefore contrary to s 5 of the New Zealand Bill of Rights Act."

A new order was introduced by the government on 3 April which corrected that.

The judges said Borrowdale's other challenges to the lockdown and the early Covid-19 response had failed.

Attorney-General responds to ruling

Attorney-General David Parker says there has been no decision yet on a possible appeal to the high court ruling.

Parker says the government does not think there are any consequences and was happy the Crown had in its view won the major points.

"What we were trying to do during those early days was take people with us from ... very few restrictions to ... very broad restrictions.

"You can see that the court has gone to a lot of effort to record that this was an emergency... they just think things should have been written down a little bit more."

He was not critical of those who had brought the case against the Crown, saying it was an important issue and acknowledged the ability to hold the Crown to account as also important.

"We always thought we were acting legally all of the way through."

"The main point in this case has been that is was beyond the power of the governement ... that kept everyone in their bubbles and close businesses."

That had been upheld by the court, Parker says.

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