Top Scoops

Book Reviews | Gordon Campbell | Scoop News | Wellington Scoop | Community Scoop | Search

 

Was New Zealand's Coronavirus Lockdown Legal? One Week Might Make All The Difference



www.shutterstock.com


Kris Gledhill, Auckland University of Technology

As New Zealand approaches the end of its strictest lockdown period, a debate has begun about whether it was legal in the first place. This is important because people are being prosecuted for breaching the lockdown. Naturally, lawyers are getting involved, so things are going to get technical.

Some lawyers tend to speak in hyperbolic terms about the “rule of law”. Invariably, they will go back to 1297, because the Magna Carta of that year – obtained as a concession by the landed gentry of England from the king – required that imprisonment be regulated by law. That provision of English law still applies in New Zealand. Its modern consequence is that public officials, whether the police or the director general of health, can only detain us if they act within statutory powers.

A more recent declaration of principle is found in section 22 of the New Zealand Bill of Rights Act 1990, which says, “Everyone has the right not to be arbitrarily arrested or detained.”

When judges interpret other laws, they must try to make sure that the Bill of Rights is met. So if a statute contains a power of detention, it will be construed that it does not allow arbitrary detention unless parliament has been clear that it does not mind arbitrariness.

At a broad-brush level, there are three main legal questions. Was there detention? If so, was there a law in place that allowed detention? And did the law allow arbitrary detention? Let’s look at those three key questions in turn – and why this debate could all come down to the week between March 26 and April 3, 2020.






Read more:
We may well be able to eliminate coronavirus, but we'll probably never eradicate it. Here's the difference





Was lockdown a form of detention?

Detention is a step up from restrictions on freedom of movement (also protected by the New Zealand Bill of Rights Act). And an important question is when do we cross the legal threshold from restriction to detention? This is significant because of the protections in international human rights law, which the New Zealand Bill of Rights Act is designed to secure. At the international level, it is made clear that wrongful detention requires compensation.




A deserted Wellington street on April 4, the day after isolation and quarantine were mandated under the Health Act.
www.shutterstock.com

Various courts and international human rights bodies have examined where to draw the line. In essence, they have decided that “detention” does not require being put under lock and key.

Rather, it turns on whether the restrictions are more intense than mere restrictions on freedom of movement. This includes house arrest accompanied by limited movements outside. This supports the view that anyone other than essential workers was “detained” at level 4 and possibly most people at level 3.






Read more:
As NZ goes into lockdown, authorities have new powers to make sure people obey the rules





Was there a law allowing NZ to detain people in lockdown?

This question requires a legalistic review. The lockdown rested on directives from the director general of health (presumably drafted by government lawyers, who are the ones who should face any criticism should the lockdown prove to be open to legal challenge).

Under section 70 of the Health Act 1956, the director general can issue directives with various aims. One power is to close premises and prevent people congregating in public places. This was used at the outset of the lockdown, but the directive did not specify house arrest and it is difficult to see that this power would allow that.

If the courts agree that people were placed in detention, government lawyers may have an uphill struggle to show that the law used allowed this.

Another section 70 power of the director general is to require isolation and quarantine. This more obviously allows detention, but a directive under this power was not issued until April 3. It made the house arrest scenario clear.




Director General of Health Dr Ashley Bloomfield providing a COVID-19 update to media in Wellington.


But a separate question is whether the directive can cover all people or whether individual orders have to be made. Given that people can be infectious without symptoms, the public health basis for group detention is fairly strong. In addition, the Health Act powers can be contrasted to powers to quarantine under the Tuberculosis Act 1948, which required an individualised court order.

So, assuming detention, there are good arguments that it was not based in law until April 3. Even after that date there is the third question: was it arbitrary?






Read more:
The psychology of lockdown suggests sticking to rules gets harder the longer it continues





Did NZ allow arbitrary detention in lockdown?

Many cases have discussed the meaning of arbitrariness, but the core idea is that detention must be the last step – namely, that other options are inadequate. This will depend on the evidence as to the state of knowledge about COVID-19 when the lockdown was imposed.

Importantly, the government has a duty to protect lives, and pandemic situations can be very dangerous, particularly for vulnerable people – as has been demonstrated in New Zealand, and more so in countries that took a lax approach.

Summarising this, first there are good arguments that most of New Zealand was in detention. The government seems to have a good prospect of showing that this was not arbitrary, given the risks of the disease spreading and causing death and misery.

But there is a clear problem with a failure to use the proper law from midnight on March 25, when level 4 lockdown began, until April 3.

This is not just an academic question. People were arrested, prosecuted and in some cases imprisoned for breaching the lockdown rules.

If the lockdown was not lawful until part-way through, people arrested in the week between March 26 and April 3 should not have been. And if, despite the strong arguments of the government, the lockdown was arbitrary, even arrests after April 3 will have been improper. Those people will have a pretty clear claim for unlawful detention and compensation, despite their selfish actions.The Conversation

Kris Gledhill, Professor of Law, Auckland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.


© Scoop Media

 
 
 
Top Scoops Headlines

 

Eric Zuesse: U.S. Empire: Biden And Kerry Gave Orders To Ukraine’s President

Eric Zuesse, originally posted at Strategic Culture On May 19th, an implicit international political warning was issued, but it wasn’t issued between countries; it was issued between allied versus opposed factions within each of two countries: U.S. and Ukraine. ... More>>

Binoy Kampmark: Budget Cockups In The Time Of Coronavirus: Reporting Errors And Australia’s JobKeeper Scheme

Hell has, in its raging fires, ringside seats for those who like their spreadsheets. The seating, already peopled by those from human resources, white collar criminals and accountants, becomes toastier for those who make errors with those spreadsheets. ... More>>


The Dig - COVID-19: Just Recovery

The COVID-19 crisis is compelling us to kick-start investment in a regenerative and zero-carbon future. We were bold enough to act quickly to stop the virus - can we now chart a course for a just recovery? More>>

The Conversation: Are New Zealand's New COVID-19 Laws And Powers Really A Step Towards A Police State?

Reaction to the New Zealand government’s handling of the COVID-19 pandemic and resultant lockdown has ranged from high praise to criticism that its actions were illegal and its management chaotic. More>>


Keith Rankin: Universal Versus Targeted Assistance, A Muddled Dichotomy

The Commentariat There is a regular commentariat who appear on places such as 'The Panel' on Radio New Zealand (4pm on weekdays), and on panels on television shows such as Newshub Nation (TV3, weekends) and Q+A (TV1, Mondays). Generally, these panellists ... More>>


Binoy Kampmark: Welcome Deaths: Coronavirus And The Open Plan Office

For anybody familiar with that gruesome manifestation of the modern work place, namely the open plan office, the advent of coronavirus might be something of a relief. The prospects for infection in such spaces is simply too great. You are at risk from ... More>>

Caitlin Johnstone: Do You Consent To The New Cold War?

The world's worst Putin puppet is escalating tensions with Russia even further, with the Trump administration looking at withdrawal from more nuclear treaties in the near future. In addition to planning on withdrawing from the Open Skies Treaty ... More>>


Binoy Kampmark: Why Thinking Makes It So: Donald Trump’s Obamagate Fixation

The “gate” suffix has been wearing thin since the break-in scandal that gave it its birth. Since Watergate, virtually anything dubious and suggestive, and much more besides, is suffixed. Which brings us to the issue of President Donald Trump’s ... More>>

Gordon Campbell: On The Ethics (and Some Of The Economics) Of Lifting The Lockdown

As New Zealand passes the half-way mark towards moving out of Level Four lockdown, the trade-offs involved in life-after-lockdown are starting to come into view. All very well for National’s finance spokesperson Paul Goldsmith to claim that “The number one priority we have is to get out of the lockdown as soon as we can”…Yet as PM Jacinda Ardern pointed out a few days ago, any crude trade-off between public health and economic well-being would be a false choice... More>>


Binoy Kampmark: Brutal Choices: Anders Tegnell And Sweden’s Herd Immunity Goal

If the title of epidemiological czar were to be created, its first occupant would have to be Sweden’s Anders Tegnell. He has held sway in the face of sceptics and concern that his “herd immunity” approach to COVID-19 is a dangerous, and breathtakingly ... More>>


 
 
 
 
 


 
 
 
  • PublicAddress
  • Pundit
  • Kiwiblog