Attorney-General responds to Court judgment on legality of Health Orders

  • Hon David Parker

The High Court has today released its judgment in Borrowdale v Director-General of Health and the Attorney-General. It is a significant judgment in which all the Health Orders issued under the Health Act Alert Level 3 and 4 lockdown that started in March were found to be lawful.

“The challenges to the orders made to close premises New Zealand wide, except for essential services, to prohibit congregating in outdoor places and to require people to self-isolate and stay at home have all failed,” David Parker said. 

The current lockdown orders made under the Covid-19 Public Health Response Act 2020 are not affected by this judgment.  

The court found that the March 25 order closing premises providing non-essential services and prohibiting outdoor congregating was lawful. It also found that the Alert Level 4 Order on April 3 to stay at home and in our bubbles, and the Alert Level 3 order on April 24 were also lawful. 

The court also dismissed the argument that the list of essential services was unlawfully delegated to the Ministry of Business, Innovation and Employment. It found that MBIE and other agencies were not defining essential businesses, but were assessing whether businesses met the criteria defined by the Order.  

“It is very satisfying that these orders have been upheld. We can be confident in the Orders made and enforced,” David Parker said. 

“However the court did find that there was a breach of the Bill of Rights Act in the first 9 days of the Alert Level 4 lockdown, because the original oral request for people to stay home and in their bubbles was not put in a formal order until 3 April.  

“Importantly, though, the court found that the requirement to stay home and in their bubbles was a necessary, reasonable and proportionate response to the COVID-19 crisis at that time.”  

The Court stated that the question was finely balanced. While it found an unlawful limitation on rights and freedoms for nine days it said “that must be seen in the context of the rapidly developing public health emergency the nation was facing”.  

“It found the imperfection from 25 March to 3 April was cured by the 3 April order,” David Parker said. 

The Court also made the point that its findings have to be kept in perspective: the situation lasted for just 9 days and occurred when NZ was in a state of national emergency fighting a global pandemic. 

The Court also rejected the challenge that the Prime Minister had attempted to suspend the law, saying that the power to require all New Zealanders to stay at home was a power that could have been (and was, from 3 April) exercised by a health officer under the Health Act.  

“The Government was trying to educate people about the health risks and transition them quickly to take actions that curtailed normal freedoms like staying at home to stop the spread of the virus. In the end the measures taken by the Government worked to eliminate Covid-19, save lives and minimise damage to our economy.” 

Since 3 April orders implementing the Alert Levels have been made under the Health Act or under the new Covid19 Public Health Response Act.  

The court has not said that all urgent Covid-related restrictions to individual rights will be in breach of the Bill or Rights. The Attorney-General pointed to the Courts’ own decision on March 18 – before the Alert Level system – to suspend all new jury trials “out of an abundance of caution” in the face of the Covid-19 threat. 

No decision on a possible appeal has yet been taken.