New Zealand’s Covid-19 response - legal underpinnings and legal privilegeAttorney-General
Facebook Live speech
8 May 2020
Good afternoon everyone. Thanks for joining me.
Before I start I do want to apologise in advance for the length of these remarks – and I don’t expect all of you will want to stay to the end – except perhaps those deeply ingrained in these issues.
In the current environment, meeting large audiences face to face is out of the question. So it seemed that a Facebook Live video was a good way to address these important issues in what would otherwise have been delivered in a public speech.
My comments today are intended especially for the legal profession, academics and media covering these issues.
There are plenty of commentators poring over every remark made by the Prime Minister, the Director-General of Health and me - and there will be some who will ask whether I am trying to influence court proceedings upcoming and may argue I should not have made these comments.
However, I would reflect on the fact that the tone of some of those attacks has the potential, and is sometimes intended, to undermine public confidence in the measures that we have all taken to stamp out Covid-19. Those measure are vital to saving many lives and important for our economy, but ultimately rely mainly on voluntary compliance and trust in the Police powers to enforce significant breaches I feel it is proper for me as Attorney-General to make these comments. More so, because we have seen in other countries the impact of public confidence being undermined. I don’t want to see that happen. It would be a strange outcome if critics can publicly critique, but I cannot justify.
For the record, I asked the Solicitor-General to pass on to the judiciary a message that the invitation to this Facebook Live speech via the New Zealand Law Society was not directed to them, and this is not an attempt to influence them. I will though, at the end, comment on measures being taken as the Courts reopen more widely.
The global COVID-19 pandemic is a matter of major concern to all. It has led the Government to declare only its second ever state of national emergency, and to issue an Epidemic Notice in relation to the virus. The Government has adopted an Alert Level system together with our strategy for COVID-19, which aims to stop the spread of the virus, stamp it out and save thousands of lives. Our response has been dictated by the nature of the threat that we suddenly faced as a nation and a Government.
There is no vaccine, there is no cure, and the health advice was clear. If we wanted to avoid the awful loss of life we saw unfolding overseas, and to prevent our health system being overwhelmed, we should wash our hands, practice good hygiene but most of all we had to keep physically distant from one another.
The measures we took put the most significant restrictions on New Zealanders’ movements in modern history and closed our borders to overseas travellers in an unprecedented way. Yet together New Zealanders embraced the challenge and as a nation we’ve achieved an extraordinary feat, though we mourn the loss of 21 loved ones.
Our goal of stamping out the virus within our shores has seen the number of new cases dwindle to less than a handful. We had feared for our hospital system. As of yesterday just two Covid patients were in hospital and none was in intensive care. Looking overseas we can see that together we have saved thousands of lives.
Today I want to discuss the steps we took, the legal underpinning of our lockdown decisions and refute some of the speculation you may have heard questioning the legality of the powers of enforcement, including erroneous claims about the legal advice we have received.
Let me say it again, as I have previously, that on the advice we have received from Crown Law there is no gap in the legality of the powers of enforcement under levels 3 and 4.
This issue is the subject of judicial determination and that will be resolved soon. The courts are where – quite rightly – disputes will be determined.
I also want to explain my position on privilege, and why I have to date refused to release Crown Law’s specific legal advice – even though it supports the legality of the Government’s position. I will address the rationale for legal professional privilege and why that is equally applicable to the Crown. Indeed legal professional privilege is essential for good government, as I set out later.
I also want to highlight the dangerous route the Opposition is taking in targeting public servants. By summonsing to the Epidemic Response Committee the Solicitor-General, the Police Commissioner and the Director-General of Health (when they would no doubt have agreed to a simple request to appear) in order to attempt to force the disclosure of privileged legal advice. By doing this the Committee is attacking not just fair processs but the privileges of the Court. Legal privilege is not Parliament’s. Parliament has its own parliamentary privilege, and it is not for the Courts to remove that. Legal privilege is grounded in the common law. It is the Courts not Parliament that have care of legal privilege. We must both make efforts not to intrude on each other’s privileges.
The current attack on that is an attack on comity – the constitutional separation of powers – between Parliament and the courts. That constitutional outrage is made worse in my view because it comes at a time when the Crown is facing legal action over the lockdown laws. I should put on record that the Chair of the committee The Honourable Simon Bridges was offered a confidential briefing on the advice and declined.
I also note the questions I received on the legal basis for the Government’s actions by the Select Committee were cursory when I appeared before the committee and I have not been asked back.
Let me now set out the steps we have taken so far; to outline the statutory framework and legal underpinnings to those steps. As you will know aspects of legality are currently before the Courts, so my approach today can only be a high-level one.
I emphasise at the outset that I am satisfied the Director-General’s orders were lawfully made. Further, there has always been a lawful basis for enforcement action by Police, under both the Health Act and the Civil Defence Emergency Management Act 2002.
To give context to the legal discussion, I will first sketch out some necessary background matters.
COVID-19 was added to the list of notifiable and quarantinable infectious diseases under the Health Act 1956 earlier this year. Shortly after the WHO declared COVID-19 to be a pandemic, there was evidence of community transmission emerging in New Zealand. This was in mid-March. Prior to this, all cases could be traced to overseas travel or contact with a known case. Modelling suggested that unless measures were put in place to break the chain of transmission, case numbers would increase exponentially, overwhelming health services, resulting in extra mortality amongst New Zealanders.
On 21 March 2020, the Prime Minister announced the National Four Stage Alert System. We set out to stop and stamp out COVID-19. Right from the start we have been educating and giving guidelines to the public about how to protect themselves and others, and how to avoid the potentially catastrophic impact of the virus. Public understanding of these issues and voluntary compliance with what needs to be done has always been key.
As I have said significant legal restrictions were also needed to stop the continued transmission of COVID-19. It was also clear at the early stage that international travel represented the highest risk area, so strict border controls would be needed. That remains the position now.
On 25 March 2020, the Epidemic Preparedness (COVID-19) Notice 2020 came into force. It provided that the Prime Minister was satisfied the effects of the outbreak were likely to disrupt or continue to significantly disrupt essential government and business activity in New Zealand.
On 25 March 2020, a state of national emergency was declared. It has been extended 6 times and is currently in place until 12 May. When she announced it the Prime Minister said that the purpose of the state of national emergency was to fight a global pandemic, save New Zealanders’ lives and prevent the very worst that we’ve seen around the world from happening here.
New Zealand went to Alert Level 4 at 11:59pm, 25 March 2020, and down to Level 3 at 11.59 on 27 April. The Director-General gave orders/directions to the public about permissible conduct at each of these levels, reflecting his view of the prevailing public health risks and steps necessary to mitigate those risks.
Consistent with that, and in parallel with the above, on 25 March 2020, Parliament was adjourned until 2 pm on Tuesday, 28 April 2020. This followed a number of earlier preparatory steps. The courts themselves saw the situation as so serious that they had already on March 18 of their own volition suspended new jury trials until the end of May, then extended to the end of July. This suspension of the right of an untried accused to have their day in court – and perhaps not be found guilty and released shows the seriousness that all New Zealand institutions put on the crisis.
The House adopted a number of procedures included empowering the Business Committee to meet and make determinations by electronic means, including remote participation; and removing the 25 per cent limit on proxy votes that may be cast by a party during a party vote. The rules also empowered the Speaker to approve special arrangements for select committees to meet and conduct business.
On 25 March 2020, the Epidemic Response Committee was established by the House. The Committee was to consider and report to the House any matter relating to the Government's management of the COVID-19 epidemic. This was seen as “a mechanism, whereby the Opposition in particular, will be able to continue to scrutinise the Government and the actions that the Government is taking, even though the House will not be sitting”.
At 2 p.m. on 28 April 2020, Parliament resumed sitting. However, to ensure physical distancing only 33 members of Parliament are allowed to be seated in the Chamber at any one time; and Members can lodge their oral questions electronically, rather than on paper.
Sittings are shorter than usual and there are no members’ days. For the 3 week sitting block any Bills referred to Select Committee can be debated immediately after being reported back to the House, rather than being delayed to the third sitting day.
Orders made by Director-General of Health
I return now to the legal basis for the orders made by the Director-General of Health.
Section 70 of the Health Act provides a medical officer of health with special powers to make a wide range of orders for the purpose of preventing the outbreak or spread of an infectious disease, if authorised to do so by the Minister of Health; or if a state of emergency has been declared; or while an epidemic notice is in force.
Both the issuing of the epidemic notice and the declaration of a state of emergency thus activated the special powers. The Director-General (and a Director of Public Health) then decided to make a series of orders under s70, in light of the health information and risks known at the time. The orders are all available on the Government’s COVID-19 website.
Several relate to the handling of people arriving into New Zealand, who were at first directed to self-isolate at home, but now requires them to be isolated or quarantined for 14-days at specified facilities, with some (albeit limited) personal movement allowed. New arrivals must also submit to a medical examination and, as required, testing for the virus.
Orders have been made that forbid people from congregating in outdoor places of amusement or recreation; and which close premises, with exceptions. The closures became significantly less restrictive under the Director-General’s Alert Level 3 Order of 27 April, where the controlling measure for opening premises of businesses or services became in general whether relevant infection control measures are in place.
The Director-General has made specific orders that isolate and quarantine people by requiring them to remain at their homes except as permitted for essential personal movement. Again, what constitutes essential personal movement has expanded under Alert Level 3.
All orders have ensured people can access the necessities of life and move around in situations of emergency and exemptions are allowed for.
Again, I’m acutely conscious legality issues are before the Courts. At a high level the components which the government points to for the legality of the s 70 orders are: The necessary preconditions (Ministerial authorisation, state of emergency, or epidemic notice) were established at the time each of the orders were made (as stated at the start of each order). The orders were made by authorised medical officers of health, exercising their discretion personally and based on their expert assessments as to the measures necessary to prevent the outbreak and spread of COVID-19. Those orders were explicitly made for that purpose.
Relevant public law considerations, including the public health assessments and analysis, were taken into account by the decision-makers before the s 70 powers were exercised.
There has been some debate as to whether the Director-General could legitimately isolate or quarantine the entire nation under s 70(1)(f) of the Health Act. I consider that subsection is apt to cover a direction to all New Zealanders for isolation and quarantine, with exceptions as mentioned and is not limited to use only in relation to specified individuals. The provision is that persons can be isolated or quarantined (with no statutory pre-condition that they may have or carry the disease), so there is no stretch of language; and this is entirely consistent with the purpose of these powers – which is to prevent the outbreak or spread of infectious disease. I observe that the powers set out in s 70 may be contrasted with the powers in Part 3A of the Health Act, which apply to the conduct of an “individual” considered by a medical officer of health to constitute a public health risk. In cases under Part 3A, the directions in question are directed to the “individual” concerned.
The interpretation and approach taken by the Director-General has of course recently been confirmed by Justice Peters in the habeas judgements A & B v Ardern & Ors, where Her Honour accepted that the orders which may be made under s 70(1) are very broad and that the reference to “persons” in s 70(1)(f) is capable of encompassing the entire population.
Bill of Rights Act
The Director-General of Health, acting as a medical officer of health, is required to exercise his powers consistently with the New Zealand Bill of Right Act. Thus the orders he has made cannot breach the rights affirmed in the BORA.
Isolation and quarantine requirements, the general prohibition of outdoor public congregation and restricted access to premises, are all measures that limit our rights to freedom of movement, association and assembly. To be lawful, they must be reasonable limits that are demonstrably justified in a free and democratic society. This means the measures must serve a sufficiently important objective, and be proportionate (in that they are rationally connected to the purpose, limit the rights no more than is reasonably necessary, and are in due proportion to the importance of the objective).
As I said earlier, there is no vaccine, no cure for this disease and the medical advice self-evidently based on real and recent overseas experience is that left unchecked the disease would cause the death of thousands of New Zealanders and cause serious economic harm.
The objective of the s 70 orders is legitimate and of significant public importance – preventing the spread of Covid-19, eradicating the disease, protecting public health and saving lives, and ensuring the sustainability of our health system. Given the public health assessment of risks to New Zealand and need for strict compliance to control the spread, I considered and still consider the measures imposed are a necessary and proportionate response. Preventing the spread of the virus could not be achieved in a less liberty-restricting way, acknowledging that the restrictions have been loosened and tailored as time has passed to reflect the nature and stage of the risk. I am mindful also that there have always been exceptions and exclusions available.
The more stringent isolation and quarantine requirements that relate to those who arrive in New Zealand are similarly justifiable, given the high risk posed by overseas travel and consequent threat to public health from those entering New Zealand, and having regard to the period and nature of confinement which is necessary to contain the public health risk.
The measures have also engaged other rights set out in the BORA, such as the rights of minorities in s 20. They could potentially limit the right to be free from discrimination affirmed in section 19(1) of BORA, in that the same treatment could have differential and disadvantageous effects on some groups. Interference with these rights can be justified, given the significant public health objective. It is not possible to go into this in more detail at this juncture, but I make the point so that people are aware that impacts on human rights are being taken into account.
I am very mindful of the coercive controls that have been imposed under the s 70 orders but all of the orders are compliant with the Bill of Rights Act. I should highlight here that the Solicitor-General has put in place an inter-agency process to keep all relevant legal instruments under scrutiny to ensure they have a firm legal basis, are sufficiently well-defined, can be demonstrably justified in the circumstances, and remain proportionate to the threat posed by COVID-19.
I conclude this section by saying that legal challenges to certain of the Director-General’s decisions and/or orders have now been commenced in Court. As I said at the outset, this has necessarily constrained me in what I can say. While the Crown will conduct a robust defence, now, as should occur under our constitutional structure, it is the Courts that will determine the legality of the challenged decisions.
Section 71A of the Health Act provides Police with various powers to assist medical officers of health: to prevent persons from obstructing or hindering the medical officers, and/or to compel/enforce/ensure compliance with a requirement made by a medical officer of health.
Section 72 of the Health Act sets out offences relating to obstructing a medical officer of health in the exercise or performance of his or her powers or functions, and obstructing or hindering a constable acting under s 71A. Police are empowered to arrest without warrant for these offences.
The s 70 notices set out clear expectations and behavioural requirements that all New Zealanders can understand, and there is a clear basis for Police constables to enforce these requirements under s 71A. They must, however, be exercised lawfully in each particular case.
For the duration of the state of emergency, Police also have emergency and enforcement powers under the Civil Defence Emergency Management Act. The use of these powers is assessed against the purpose of the declaration – that is to slow the spread and reduce the impact of COVID-19 (and thereby save lives). These include the power to enter premises, restrict public access to roads or places, and to direct and request people to stop activities or take actions to limit the extent of the emergency. These powers too must be exercised lawfully. The notices under s 70 of the Health Act provide clarity as to behavioural requirements and permissible movements, and hence clarity as to the exercise of these powers.
Legal professional privilege – purpose and scope
There has been a high level of interest in the specific legal advice that has been provided throughout this emergency. This Facebook Live event gives me the opportunity to talk about legal professional privilege.
The purpose of legal professional privilege is to enable legal advice to be sought and given in confidence. The basic principles arise from the public interest requiring full and frank exchange of confidence between solicitor and client to enable the client to receive necessary legal advice. It is a necessary corollary to the right of any person to obtain skilled advice about the law. People must be able to consult their lawyers in absolute confidence, as otherwise they might hold back information, in fear it may afterwards be disclosed and used to their prejudice. This is why the House of Lords has described legal professional privilege as much more than an ordinary rule of evidence; it is a fundamental condition on which the administration of justice as a whole rests.
Similarly, legal professional privilege has been said to be a fundamental right, long established at common law.
These principles have been endorsed on numerous occasions.
As Professor Andrew Geddis has said of legal privilege:
“That privilege allows the Crown (as is the case with any client) to refuse to divulge the advice’s content, and it exists for a very good reason. Privilege permits legal advisers to give their full and frank views on the legal risks and challenges involved in any particular policy decision. Receiving that full and frank advice then helps the government to make the best decision on the matter at had.
Without such legal privilege in place, legal advisers may hedge and trim their views to avoid having them rebound on their client (the crown) at a later date. So, rather than saying “this policy proposal has very weak legal foundations and there is a high risk it will be overturned if challenged in court”, they may instead say “there might be a potential legal issue with this policy proposal”. Which actually would be bad for deciding what is the best thing to do.
So, given that there’s another institution in place that is going to examine the lockdown rules’ legality (the courts), and the institutional value in enabling the crown to receive full and frank legal advice, it probably would be best if the Epidemic Response Committee backed off here. It probably doesn’t need to inquire into this issue, and by doing so it may well do longer term harm to our processes of government.”
Legal professional privilege - waiver
Once established, legal privilege is absolute and can only be removed by statute or by client waiver. (Under the Cabinet Manual, it is the Attorney-General who has the right to determine and be consulted on whether the privilege in any legal advice given to the Crown should be waived.)
On occasion I will proactively waive the Crown’s privilege in legal advice because there are issues which the public need to understand. This often happens when we are looking backwards after a significant lapse in time, for example the Crown has waived privilege in respect of a lot of advice through the years relating to abuse in state care. A lot of but not all advice given in relation to abuse in state care has been released. On occasion we do it with select committees on condition that advice is kept confidential to the committee.
This Select Committee is purporting to take power to themselves to waive privilege. (The committee I would add was set up with the leader of the Opposition as its chair and with a majority of Opposition MPs in a signal by the Government of its willingness to allow scrutiny at a time the House could not sit.)
We have been more open than many countries in this regard and this reflects well on our democracy.
Why did it just target the Crown? Imagine if the plaintiff in the habeas corpus case or other applicants were forced to disclose their legal advice.
Where there is litigation on foot, everyone, including the Government, must be entitled to retain their privilege and defend themselves in Court without any risk of prejudice arising by way of disclosure of privileged communications.
Legal professional privilege in the public service
It is clear that the Crown can rely on legal professional privilege in respect of the legal advice it receives (from departmental legal advisers, from the Crown Law Office, or advice from outside legal firms to either Ministers or government agencies). The privilege is expressly recognised in the Official Information Act 1982 and confirmed in the Cabinet Manual 2017.
Government needs to be able to rely on legal professional privilege just like anyone else. It enables government decision makers to have clear advice from their lawyers about the extent of their powers, and the risks. Their legal advisors need also to be free to be frank about the same issues to decision makers. Courts in Australia the UK and New Zealand have upheld the importance of legal professional privilege in the public sector.
Government needs to obtain frank legal advice from their advisors without the potential chilling effect that the prospect of possible disclosure would have.
A select committee can ask me or the Solicitor-General or Police to again explain the basis of their powers.
A select committees can ask for its own legal advice. None of these things are closed to them.
But according to McGee’s Parliamentary Practice in New Zealand “the House has acknowledged that a legal opinion is the property of the person who commissioned it, and that a select committee cannot expect the opinion to be furnished to it without the consent of the owner”.
In my opinion the current effort to turn over centuries of legal principle is not just unprincipled but may in fact be beyond the powers of the Select Committee. An important matter of comity with the courts, and a matter of constitutional principle is raised. I will be asking the Speaker of the House to refer the matter to the privileges committee to consider.
Constitutional law experts may themselves be interested to reflect on whether this issue is the mirror opposite of what was considered in the privileges committee decision arising out of purported limitations to Parliamentary Privilege in breach of the 1688 Bill of Rights division of powers. I’m not sure that even Parliament has the jurisdiction to do what the Select Committee is seeking to do.
Turning back to the underlying substance, recent speculation that our legal advice throws doubt on the legal basis is wrong. It appears to be 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.
Level 2 powers
The position under level 2 will be different.
A new law providing a legal framework for Covid-19 Alert Level 2 will be introduced and debated next week.
The changes we propose will ensure that controls on gatherings of people and physical distancing are still enforceable.
Enforceability to date has relied on the Epidemic Notice, the Health Act and the Civil Defence Emergency Management Act.
There will be fewer restrictions under Alert Level 2 but those remaining still need to be enforceable. We don’t want these narrower controls to rely on a National State of Emergency.
I reiterate what the Prime Minister has said: There has been no gap in the legal underpinning or in the enforcement powers under the notices that have been issued under Level 3 and Level 4. The proposed changes we are making are not retrospective and do not need to be.
The new law will also:
- Recognise the centrality of health factors in the measures we need to take;
- Provide that the Minister of Health become the decision maker on the advice of the Director-General of Health; (we have been listening to some of the academic commentary that that is a more proper route).
- Provide a transparent basis for how the rules will work and how they can be enforced;
- Provide for economic and social factors to be taken into account in determining appropriate measures.
The country has achieved considerable success in addressing the Covid-19 threat. We have all given up some of our liberties as we have worked together to save thousands of lives. We have taken into account civil liberties and other human rights. As we reduce strictures and restore freedoms, we expect the vast majority of New Zealanders will continue to comply voluntarily with the necessary measures at all Alert Levels, but as we have consistently said, we will need to enforce the rules where there is serious non-compliance.
The importance of Courts continuing to operate
Access to justice and access to the courts is a fundamental aspect of the rule of law in Aotearoa. As much as is possible, within the constraints of the epidemic and Alert Level restrictions, we have been striving to maintain this. The courts also have an important role to play in scrutinising the actions of the Executive, and this may be particularly so during a crisis or emergency such as this.
Under the leadership of the Chief Justice of New Zealand, the Heads of Bench have worked together to develop clear protocols to ensure that as an essential service, our courts can continue to operate.
At Alert Level 4, this work included the prioritisation of categories of hearings – those that affect liberty, those that affect personal safety and wellbeing and those that are time-sensitive matters. These are the hearings that have the most impact on the welfare of New Zealanders and maintaining this service ensured that those who are more vulnerable were not further disadvantaged, even at a time when New Zealanders day-to-day activity was severely restricted.
This also reflect the rights to liberty, to minimum standards of criminal procedure and justice that are affirmed in the New Zealand Bill of Rights Act. These are fundamental rights and a corner stone of our judicial system.
As changes to the COVID-19 alert levels have occurred, Heads of Bench have also worked closely with the judiciary to expand service delivery as safely as possible.
There have also been legislative amendments to enable better access to justice through enabling more use of audio-visual links technology. For example, amendments to the Oaths and Declarations Act, the Wills Act, and the Personal and Property Rights Act enable people to make an oath, declaration, or affirmation, or sign or witness documents via AVL (or phone in the case of the Oaths and Declarations Act) rather than requiring a physical presence.
On PPE and safety
You will have heard the Prime Minister speak to the need to continue a way of life that protects us all from the spread of COVID-19. In our courts, the health and safety of all participants, as well as staff, has been paramount since day one. The cleaning regime the Ministry of Justice implemented at court buildings across the country has been comprehensive and in line with Ministry of Health guidelines. I hope this, alongside other measures such as contact tracing registers and drop boxes for filing, has given you an assurance that they are doing their best to keep everyone safe inside the court buildings.
Many court users have asked what they can do to keep themselves and others safe. The normal hygiene rules apply. And, in addition, the Chief Justice has confirmed that those attending court in person are able to use their own PPE while in the courtroom. For anybody coming in the main entrance of a court building, the Ministry of Justice will provide PPE if the participant requests it.
Please also do continue to approach local site managers with any concerns about health and safety in the courts. Your feedback whether that be ideas or constructive criticism is crucial as we ensure access to justice continues, in a safe environment, for those who need it most.
The profession plays an important role in providing access to justice. Thank you for your patience and understanding as you’ve adapted to the new ways in which the courts are having to work. The challenges have been significant but your work to ensure that New Zealanders can still meaningfully participate in the legal system and effectively assert their legal rights is essential.
The individual impact this disruption has had on individuals, particularly victims and witnesses, is something the Judiciary with support from the Ministry of Justice will be working hard to address as restrictions ease across the country.
Courthouses serve an important role as the local face of justice for their communities and the Chief Justice of New Zealand has stressed that our system of justice is a face-to-face and in person system, which she sees as a fundamental aspect. She has indicated that the end of the COVID-19 emergency will predominantly see face-to-face justice return in courthouses around New Zealand. Working closely with the judiciary, the Ministry where possible will also look at how to keep measures that have improved accessibility and efficiency for the justice system.
As has occurred in the moves to Level 4 and Level 3, the Judiciary will share practice notes about how the courts will operate in Level 2.
Ngā mihi. Thank you.