Two men who sued Prime Minister Jacinda Ardern over what they claimed was an unlawful detention during the Covid-19 lockdown can now be named.

Dermot Gregory Nottingham and Robert Earle McKinney challenged the Government's decision to confine people to their homes with habeas corpus claims, a 900-year-old legal procedure challenging detention without justification.

Ultimately, their case, which brought claims against Ardern, the director general of health Dr Ashley Bloomfield and Civil Defence director Sarah Stuart-Black, was dismissed by the Court of Appeal at the start of this month. But the men have indicated they may apply for leave to take the case to the Supreme Court.

They had sought name suppression, citing death threats and safety risks, but after the appeal hearing said they would no longer be seeking secrecy.

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Nottingham is no stranger to the justice system and was serving a period of home detention for breaching suppression orders in a prominent Auckland court case and criminal harassment against five people, including a former MP. He has also been involved in defamation proceedings.

But Nottingham and McKinney's Covid-19-related claims against the Government are ongoing, with both now seeking a judicial review in the High Court.

Dermot Nottingham outside the Auckland District Court in 2018. Photo / Sam Hurley
Dermot Nottingham outside the Auckland District Court in 2018. Photo / Sam Hurley

They claim the Government's coronavirus decisions are "completely undemocratic and [an] unlawful process".

It followed a recommendation from Court of Appeal president Justice Stephen Kós that the best forum for challenges over the issue of legality is in an expedited judicial review.

"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 Court of Appeal added in its written decision dismissing the habeas corpus claims.

Former parliamentary counsel and law drafter Andrew Borrowdale has also asked the High Court for a judicial review to test if the lockdown during levels 4 and 3 was illegal.

Borrowdale is arguing Bloomfield exceeded his powers.

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In a jurisdictional decision in Borrowdale's case last Friday, Justice Kós said "the issues in the present proceeding reach further into the liberties and pockets of the New Zealand public than was the case in 1976".

He was citing one of New Zealand's leading constitutional law decisions, Fitzgerald v Muldoon, which concerned then Prime Minister Robert Muldoon's suspension of the superannuation scheme.

The judicial reviews follow growing concerns and questions about the legality of the Covid-19 lockdown orders, which have introduced unprecedented restrictions on civil liberties.

However, Attorney-General David Parker has dismissed any claims of illegality by the Government.

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Today, Chief Human Rights commissioner Paul Hunt said he was also "deeply concerned" about the lack of scrutiny and rushed process for the Covid-19 Public Health Response Bill.

The proposed law would allow police or an enforcement officer to "enter, without a warrant, any land, building, craft, vehicle, place, or thing if they have reasonable grounds to believe that a person is failing to comply" with orders made by the Minister of Health or director-general of health.

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Hunt called the Bill a "great failure of our democratic process".

"The new legislation, if passed in its current state, will result in sweeping police powers unseen in this country for many years," he said.

"Given our concerns expressed to the Attorney-General yesterday about the two-year sunset clause in the Bill, we are pleased to see that Parliament will be changing this to 90 days. However, given that the legislation encroaches on the civil liberties of New Zealanders we have serious concerns about whether the powers are proportionate."

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