Covid-19: Challenge over legality of 2020 level 3 and 4 lockdown rejected by Court of Appeal

Director-general of health Ashley Bloomfield made the health orders on March 25 and April 3 and 27 last year. Photo / Mark Mitchell

An appeal which questioned the legality of last year's level 3 and 4 lockdown has been dismissed by the Court of Appeal.

The case related to The Health Act 1956 which gives the director-general of Health, currently Ashley Bloomfield, special powers. Under section 70(1)(f), the director-general may require persons to isolate or quarantine and under 70(1)(m), they may close premises and forbid congregating.

The ruling, which was issued today, said the orders did not exceed the scope of these sections of the Health Act.

It said a broad approach to section 70(1)(f) and (m) was required because of the broad statutory language, the fact that these were emergency powers to be used in unforeseeable situations.

"Although these powers were inconsistent with the rights to freedom of movement, assembly and association in the New Zealand Bill of Rights Act 1990, they were justified limitations to prevent disease and protect the health of society."

The appellant, lawyer Andrew Borrowdale, had claimed that the orders exceeded the scope of s 70(1)(f) and (m).

He also claimed the director-general unlawfully delegated the decision on what premises would close under the first order.

Borrowdale's lawyer, Tiho Mijatov, argued in the High Court last July that Bloomfield went beyond his powers by putting the whole country into lockdown.

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

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

However, the review disagreed with 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.

Today's ruling also confirmed that the director-general had not unlawfully delegated the decision on what premises would close.

"In this case, the list of essential businesses was prepared by other officials, but the Director-General approved that list before it went on the government website, then adopted the list on the government website when making the first order. "

However, the decision did note that it appeared that ministers may have acted unlawfully when making subsequent exemptions to business closures, but this was unrelated to the question of whether the director-general made an unlawful delegation.