Retired politician Peter Dunne says the Government's haste to achieve perfection has seen "some corners cut to the detriment of our democracy" as the legality of New Zealand's coronavirus lockdown is challenged.

The former United Future leader said the Government, which promised to be the "most open and transparent ever", must act in absolute accord with the law - particularly when making decisions about Covid-19 restrictions.

Concerns and questions about the legality of the strict lockdown orders in response to the pandemic, which have heavily curtailed individual rights and liberties, have been growing louder since New Zealand's Law Society called for greater clarity and legal justifications from the Government earlier in April.

Dunne said there were questions about whether director-general of health Dr Ashley Bloomfield, "who has been exercising sweeping powers during the lockdown", has been going beyond his jurisdiction in the Health Act.

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Former parliamentary counsel and law drafter Andrew Borrowdale asked the High Court this week for a judicial review to test if level 4 and 3 were illegal. He is arguing Bloomfield exceeded his powers.

Peter Dunne says the haste to achieve perfection has seen some corners cut to the detriment of our democracy. Photo / Mark Mitchell
Peter Dunne says the haste to achieve perfection has seen some corners cut to the detriment of our democracy. Photo / Mark Mitchell

"New Zealand has been on a remarkable roller-coaster ride over the last couple of months as it has first confronted and now flattened the Covid-19 curve," Dunne, the former Minister of Internal Affairs, said in his column.

"But now, as the ride is starting to perhaps become a little smoother, some cracks in the basic machinery that require immediate attention are becoming somewhat obvious. The haste to achieve perfection, while understandable, has seen some corners cut to the detriment of our democracy."

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Dunne also raised his concerns about emails leaked to NZME revealing police "held major concerns" after advice from the Solicitor-General questioned whether they had the legal authority to enforce aspects of the lockdown, such as stop and detain people.

This led to Solicitor-General Una Jagose being summonsed by the Epidemic Response Committee and asked to reveal the advice on the legality of the lockdown.

Chairman of the committee and Opposition leader Simon Bridges said: "The people of New Zealand have given up their freedoms for this lockdown. We all deserve to know what the legal basis was for that."

Parliament has never summonsed the Solicitor-General before.

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Prime Minister Jacinda Ardern has said Attorney-General David Parker has been satisfied all powers invoked to tackle Covid-19 have been appropriately used and police have not been acting illegally during the lockdown.

Decisions made by Prime Minister Jacinda Ardern and director-general of health Dr Ashley Bloomfield have raised legal questions. Photo / Mark Mitchell
Decisions made by Prime Minister Jacinda Ardern and director-general of health Dr Ashley Bloomfield have raised legal questions. Photo / Mark Mitchell

Dunne also mentioned the Court of Appeal and its president, Justice Stephen Kós, have "hinted at concerns about the legal process adopted to impose the lockdown".

"In dismissing an appeal in a specific case, the court said that it had nevertheless raised wider issues that could be the subject of a separate, possibly urgent, hearing," Dunne said.

"[Justice Kós] observed in a reference to various arguments being raised by legal academics about the legality of the lockdown that there extraordinarily complex questions needing answers. He further observed that a report of Parliament's regulations review committee looking at government powers in emergencies was 'hardly approving'."

In another Covid-19 court case, a High Court judge overruled the Ministry of Health's decision to stop a son visiting his dying father. The judicial ruling has led to a review of the 24 cases of people who applied for a lockdown exemption on compassionate grounds.

Ardern incorrectly said 18 people who had recently returned to New Zealand had been granted an exemption to visit ill family members when the actual number was zero.

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Dunne said the Government has won plaudits for appearing to be clear and decisive in its actions.

"People have felt included in the process, and that, plus a still huge sense of community fear about Covid-19, has secured their compliance," he said.

"However, none of that justifies treating due process, and sticking to the law, as just some sort of optional extra that can be picked up and discarded as it suits, as now seems to be the case."

He said when governments assume that they know best, and the law and convention can be pushed aside if it conflicts with their plans, the public has reason to be concerned.

"This is the time for the Government and its authorities to be seen to be acting in absolute accord with the law, not doing their best to get around it when it does not suit them."

Covid19.govt.nz: The Government's official Covid-19 advisory website

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