Covid 19 coronavirus: Appeal heard over ruling regarding the legality of NZ's lockdown

The appeal is set down until tomorrow. Photo / 123rf

Arguments over a judgment on the legality of Aotearoa's first lockdown are being heard in the Court of Appeal in Wellington today.

Former parliamentary counsel and law drafter Andrew Borrowdale brought a case to the High Court at Wellington last July, arguing that director-general of health Dr Ashley Bloomfield went beyond his powers putting the whole country into lockdown.

Borrowdale won one part of the judicial review - that the first nine days of the alert level 4 lockdown from March 26 to April 3, 2020, requiring people to stay home, was justified but unlawful.

The court said the lockdown limited the Bill of Rights guarantee of freedom of movement, peaceful assembly and association because it was not lawfully imposed.

A new order was introduced by the Government on April 3 which corrected that - and the current laws are not affected by the judgment.

However, the review disagreed with Borrowdale's lawyer Tiho Mijatov's argument that the law should only be allowed on a case-by-case basis to quarantine those likely to be infected, and that Bloomfield allowing public servants to determine which businesses were essential was unlawful.

It said the power could be used to require isolation on a universal basis.

And it ruled that the ability to take decisive action would have been thwarted if the orders had to specify each and every place and premises that must close.

Today lawyer for Borrowdale, James Farmer, told the hearing section 70 of the Health Act should not be interpreted to allow a nationwide lockdown.

He argued that the Government could pass legislation with speed - and this was shown on the first day of lockdown when power was granted to the Education Minister to open and close schools.

Overall, Borrowdale does not dispute that there should have been a lockdown, but that it should have been done lawfully.

The hearing is set down until tomorrow, and will be heard by Justices French, Cooper and Collins.

Lawyers from the Crown and the Law Society are yet to speak.