New Zealand High Court finds COVID-19 lockdown measures to be justified under human rights law (but partially unlawful on other grounds)
Andrew Borrowdale v Director-General of Health and Attorney-General [2020] NZHC 2090
Summary
A Full Bench (three Judges) of the New Zealand High Court unanimously held that the restrictions imposed by the New Zealand Government in response to the COVID-19 pandemic requiring New Zealanders to stay at home were consistent with the New Zealand Bill of Rights Act 1990 (NZBORA). The Court also held, however, that some public statements went beyond what the orders then permitted and some restrictions were therefore, for a limited time, unlawful.
Facts
Mr Andrew Borrowdale commenced proceedings against the Director-General of Health (DGH) and the Attorney-General seeking judicial review of the restrictions imposed by the New Zealand Government in response to the COVID-19 pandemic. The restrictions required New Zealanders to be confined to their homes from 26 March 2020 until 13 May 2020.
Mr Borrowdale’s challenge contained three separate causes of action:
three orders made by the DGH under s 70(1) of the Health Act 1956 (Act) unlawfully exceeded the reach of the emergency powers conferred by the Act and were inconsistent with the NZBORA (Health Orders Cause of Action);
during the first nine days of restrictions, public announcements made by Prime Minister Jacinda Ardern and other Government officials unlawfully directed more severe restrictions than they were empowered to make (Public Announcements Cause of Action); and
the DGH’s first order involved an unlawful delegation of the power under s 70(1)(m) of the Act to determine which businesses needed to be closed (Delegation Cause of Action).
Decision
Health Orders Cause of Action
The DGH’s emergency powers under s 70(1) of the Act are triggered by a state of emergency, an epidemic notice or Ministerial authorisation. By 25 March 2020 the appropriate triggers had taken effect.
The DGH then made the following orders:
Order 1, made under s 70(1)(m) of the Act on 26 March 2020, forbade congregations and required the closure of non-essential businesses;
Order 2, made under s 70(1)(f) of the Act on 3 April 2020, required all persons (with some exceptions) to be quarantined by remaining at home; and
Order 3, made under both ss 70(1)(f) and (m) of the Act on 27 April 2020, replaced Orders 1 and 2 and imposed largely the same restrictions.
Mr Borrowdale claimed that the orders were ultra vires and unlawful as the DGH had exceeded the emergency powers under ss 70(1)(f) and (m) of the Act (Provisions). Mr Borrowdale also argued that the Provisions engaged certain NZBORA rights and should be construed in a way that is consistent with those rights.
The Court agreed that the Provisions engaged NZBORA rights (namely the right to manifest religion, freedom of peaceful assembly, freedom of association and freedom of movement) and the exercise of the s 70 powers limited those rights. The Court nevertheless recognised the importance of the Government’s ability to be able to respond to the pandemic and therefore held that a contextual and purposive interpretation of the Provisions is to be applied.
Citing the majority decision in R v Hansen [2007] NZSC 7, the Court said that:
the rights presently in issue are not absolute and "must accommodate the rights of others and the legitimate interests of society as a whole", including the wider interest in protecting public health.
The critical question was what limitations on those NZBORA rights could be justified during a public health crisis. The Court considered the speed of COVID-19’s spread, New Zealand’s international obligations to protect public health, and the historical background to the s 70 emergency powers, and held that the exercise of the DGH’s powers was a necessary, reasonable and proportionate response to the pandemic. The orders were therefore both lawful and consistent with the NZBORA.
Public Announcements Cause of Action
The relevant statements were made by the Prime Minister and other key Government officials over the nine day period that Order 1 was in effect (Statements), and included telling New Zealanders to “follow the rules and stay home” and that “enforcement measures may be used to ensure everyone acts together”.
Mr Borrowdale claimed that as Order 1 only mandated the closure of non-essential businesses and for congregations to cease, the restrictions in the Statements exceeded the restrictions imposed by the Order and were therefore not “prescribed by law”.
The respondent submitted that the Statements were only issued as guidance to encourage voluntary cooperation and were not commands. However, the Court disagreed. As the Statements contained the threatened use and enforcement of coercive powers, the Court found that “the Statements created the overwhelming impression that compliance was required by law”. By going beyond the restrictions contemplated in Order 1, the Statements unlawfully limited NZBORA freedoms.
The Court noted, however, that this conclusion should be kept in perspective. The Statements’ unlawful restrictive measures could have been lawfully imposed by the DGH at any time. This was corrected when Order 2 was made, meaning the restrictions were only unlawful for the nine day period.
Delegation Cause of Action
Mr Borrowdale claimed that Order 1 unlawfully delegated the DGH’s s 70(1)(m) power to define what was an “essential business” to the Ministry of Business, Innovation and Employment (MBIE). This is because a list of essential businesses was to be updated and maintained by the MBIE on the Government’s COVID-19 website.
The Court rejected this argument, finding that Order 1 broadly defined essential businesses as “businesses that are essential to the provision of the necessities of life and those businesses that support them”. The Order clearly fixed the definition of essential businesses and the website list was only advisory, meaning there was no unlawful delegation.
Relief
Mr Borrowdale asked the Court to issue a declaration reflecting its conclusion on the Public Announcements Cause of Action. The respondent submitted that no declaratory relief should be granted, because the Statements’ unlawful restrictions had been superseded by Order 2 (which was lawfully made), making the issues in the proceeding merely academic. Parliament had also enacted legislation to give effect to the restrictions and to authorise possible future ones, meaning the issues in the proceeding would not arise again.
The Court acknowledged that the question of declaratory relief was “finely balanced”. While the restrictions imposed by the Statements were not prescribed by law, they were nevertheless reasonable, necessary and proportionate. However, the Court found that the lack of clarity surrounding the restrictions contravened the rule of law, and therefore issued the following declaration:
By various public and widely publicised announcements made between 26 March and 3 April 2020 in response to the COVID-19 public health crisis, members of the executive branch of the New Zealand Government stated or implied that, for that nine-day period, subject to limited exceptions, all New Zealanders were required by law to stay at home and in their “bubbles” when there was no such requirement. 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. While there is no question that the requirement was a necessary, reasonable and proportionate response to the COVID-19 crisis at that time, the requirement was not prescribed by law and was therefore contrary to the New Zealand Bill of Rights Act.
Commentary
This case reinforces that human rights provide a compass to guide governments in making the right decisions to respond to this pandemic. They ensure that even in dark times, governments hold on to values like fairness, dignity and respect.
Human rights and freedoms may be validly limited in times of crisis, provided the exercise of the power is necessary, reasonable and proportionate. However, this case also highlights that governments must take care to ensure that any directions and restrictions are properly executed in order, to avoid any challenges as to lawfulness.
Three Australian jurisdictions - Victoria, Queensland and the ACT - have a Human Rights Act. As with NZBORA, each Act protects the rights to freedom of movement, assembly and association (among others), and allows these rights to be limited only where the limit is reasonable and "can be demonstrably justified in a free and democratic society". Although this case was decided under New Zealand law, the similarities between these laws mean the NZ High Court's reasoning could be persuasive in challenges against COVID-19 restrictions in these jurisdictions.
The Victorian Government's decision to impose a hard lockdown, to contain the "second wave" of COVID-19, is facing two separate legal challenges, from a Mornington Peninsula café owner and a Melbourne hotelier. In both cases, the applicants have alleged that the lockdown is a disproportionate and unreasonable restriction on their rights under the Victorian Charter of Human Rights and Responsibilities Act. Given the comparable subject matter of these challenges to Mr Borrowdale's own appeal, it would not be surprising if the Victorian Government looked to use the NZ High Court's reasoning to defend its own lockdown.
The full judgement is available here.
Tim Wells is a Solicitor at King & Wood Mallesons.