The Court of Appeal has reserved its decision after private action was brought against the legal basis for putting the country into lockdown.
Director-General of Health Dr Ashley Bloomfield. Photo: RNZ / Samuel Rillstone
In July 2020, Dr Andrew Borrowdale won part of his judicial review in the High Court in Wellington - that the first nine days of the alert level 4 lockdown were justified but unlawful.
This week, he has been appealing parts that went against him in the Court of Appeal.
His legal team has argued that a series of orders passed by Director-General of Health Dr Ashley Bloomfield did not provide adequate legal basis to make people stay home in their bubbles.
Borrowdale was not disputing that action was needed to tackle Covid-19, but that it needed to be done lawfully.
Today, the Crown got to respond to the claims.
Solicitor-General Una Jagose QC told the court that Borrowdale's case ignored the speed that the pandemic ramped up last year.
She said there was no time for some tidy policy process that impeded less on freedom-of-movement rights.
"You might recall Dr Bloomfield saying that they could see the wave was coming, the tipping point came much faster than had been thought.
"And the imperative or the idea to 'go hard, go early' became 'go right now'."
Jagose said section 70 of the Health Act, which Bloomfield used to put the country into lockdown, was used as designed - on a rapidly unfolding health emergency.
She said Parliament last looked at the section 70 powers in 2006, with its principal purpose to ensure adequate powers were available to the Crown to properly respond to a major public crisis.
"Some of the provisions in the bill do require a lesser priority on individual rights than as appropriate in times of non-emergency.
"That is justified by the need to ensure members of the community, in general, are protected from those who may be suffering from highly infectious disease, but who may not necessarily comply voluntarily."
She said Parliament had clearly grappled with the issue that individual and human rights might be impeded by the act.
Section 70 had an "extraordinary catalogue" of powers that infringed on peoples' rights and property, she said.
"Pull down buildings, destroy unsanitary things, destroy animals, require people to report and submit themselves to medical testing, require persons to be isolated quarantine and disinfected.
"Almost every single one of those is an infringement on a right guaranteed under the Bill of Rights Act, or a property right."
She said Parliament could not have been more clear, that when the circumstances required it section 70 gave the power to infringe on rights.
Change the laws in a day
Yesterday Jim Farmer, another of Dr Borrowdale's lawyers and father to Leo Farmer, said the government needed to change the law if it wanted to put the entire country into lockdown - something it could have pushed through Parliament in a day if necessary.
He said it did about the same time last year when it passed legislation in a day closing schools.
But Jagose said this action, shutting schools and making them provide distance learning, were things that without the legislation there was no power to require schools to do - so it needed to happen.
However, she said section 70 was available and gave the power to put the country into a nationwide lockdown.
Restrictive vs universal
Yesterday in court, Leo Farmer said the legislation Bloomfield used - the Health Act of 1956 - was derived from earlier legislation that provided for people to be made to quarantine on a case-by-case basis.
He said as the law developed it kept this constrained character: pertaining to specific places, regions, or groups of people rather than being applied to the whole country in a blanket way.
But today, Jagose said there was nothing in the act to suggest that it was so restrictive. And that the use of different terms such as 'persons' (seemingly more specific), and 'people' (seemingly meaning lots of people, or even all people) were just down to a change in drafting style.
Delegation, the comma problem, and Tiwai
Yesterday, Borrowdale's lawyer said Bloomfield did not have the legal basis to delegate to officials the power to decide which business were "essential" - described as providing or supporting those that provide the "necessities of life" - and could therefore stay open.
This so-called 'comma problem' hinged on the way the health order was written.
It referred to a list of businesses considered essential on the Covid-19 website - and that words after a comma arguably suggested that it was left to officials to set the parameters of the definition.
But Jagose said Bloomfield did not delegate anything - his orders clearly stated that all premises were to close except those defined as "essential" services providing the necessities of life.
She said he was part of the all-of-government group that drew up a list of essential businesses, and that reference to the Covid-19 website was just an example of where guidance on what was essential could be found.
But Borrowdale's lawyer Leo Farmer said the all-of-government list was only a draft document.
"It's a useful start to understanding what the necessities of life are, but it was not an analysis by which they can be identified with any real particularity."
Jagose said the Tiwai smelter being given an exemption for economic reasons was simply a case of some unknown ministry official asserting a power they did not have - and is not an example of Bloomfield's orders being delegated.
Government must keep citizens safe - Law Society
Meanwhile, the Law Society said Borrowdale wrongly emphasised rights to freedom of movement over the State's responsibility to keep citizens safe.
It is appearing in the hearing as a neutral party, and its lawyer Jonathan Orpin-Dowell said focusing on individual rights put people at risk.
"Then of course we know that in the case of a pandemic and disease like Covid-19 that the rights of some New Zealanders are likely to be particularly affected.
"For example ... the elderly, immuno-compromised members of our society and other high-risk groups."
Orpin-Dowell said the Health Act powers used were legitimate in the short term, but as a crisis like a pandemic went on bespoke legislation needed to be brought in to deal with it.
The Covid-19 Public Health Response Act has since been passed and the current laws are not affected by the court action.
The Justices have reserved their decision.