Two men who sued Prime Minister Jacinda Ardern by claiming unlawful detention during the Covid-19 lockdown are now asking for a judge to test the legality of the Government's pandemic decisions.

It is the second such request for a Covid-19 judicial review after former parliamentary counsel and law drafter Andrew Borrowdale also this week asked for a court to test if level 4 and 3 were illegal.

Borrowdale is arguing director-general of health Dr Ashley Bloomfield exceeded his powers.

The two men, who had their habeas corpus (unlawful detention) claims dismissed by the Court of Appeal last week, allege Ardern, Bloomfield, Director of Civil Defence and Emergency Management Sarah Stuart-Black, and the Commissioner of Police made orders "were no medical grounds of sufficient cogency to impose the lockdown", documents filed with the High Court read.


The duo, who have interim name suppression through their habeas corpus case, claim the lockdown was a "completely undemocratic and unlawful process" which effectively imposed a version of martial law.

In their statement of claim, the pair also ask the High Court to make a declaration that those charged, convicted and imprisoned unlawfully during the lockdown have their prosecutions dropped, convictions quashed and compensated granted.

They have also indicated they wish to have their interim name suppression waived.

The High Court confirmed it had received the application from the men for a judicial review yesterday, but it was yet to be processed.

It comes after Crown Law documents were leaked to Newstalk ZB yesterday, which say police powers were severely limited under the first directive by Bloomfield in March.

Attorney-General David Parker is due to speak on Facebook today about the legal and procedural issues arising out of Covid-19. Photo / Mark Mitchell
Attorney-General David Parker is due to speak on Facebook today about the legal and procedural issues arising out of Covid-19. Photo / Mark Mitchell

Responding to the leak, Attorney-General David Parker said the document was a draft - and "not the considered advice of Crown Law".

"Recent speculation that the Government's legal advice had thrown doubt on the police enforcement powers under level 4 is wrong," he said in a statement.

"That speculation is based on draft views provided to agencies for feedback. That was not the considered advice of Crown Law, which was that there was no gap in enforcement powers."


Parker is due to speak about the legal and procedural issues arising out of Covid-19 on his Facebook page later today.

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Concerns and questions about the legality of the strict lockdown orders in response to the coronavirus, which have heavily curtailed individual rights and liberties, have been growing louder in New Zealand's legal and academic circles.

When dismissing the two men's habeas corpus claims last Friday, the president of the Court of Appeal, Justice Stephen Kós, said any challenges over the lawfulness of the Government's coronavirus decisions should be tested in an expedited judicial review.

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In Monday's full written decision on the case, the Court of Appeal reaffirmed that view and said: "As has been noted by the Regulations Review Committee and two of New Zealand's leading public law academics (Andrew Geddis and Claudia Geiringer), there are unresolved questions about the lawfulness of the notices issued under s70 of the Health Act."

The questions have also 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. The Government's official Covid-19 advisory website