Permitted Unlawfulness: The New Zealand Coronavirus Lockdown | Asia-Pacific Research


24-08-20 07:27:00,

“Limitation is essential to authority.  A government is legitimate only if it is effectively limited.” – Lord Acton

It is a study both troublesome and perplexing.  To what end can a state trample on human rights ostensibly to preserve such objects a public health?  The coronavirus lockdowns have become a feature of global politics and relentless mandatory intrusion, the health department made sovereign, assisted by vigorous policing.  States have used, and continue to use all manner of measures to confine individuals to homes, mask them, restrict movement, while, in some cases, shutting them up as dissenters and hurrying them into obscurity.  The end sought: viral suppression, flattening the curve, elimination.  But what might be saved in terms of health will be lost in terms of liberties. 

One country made the brave, somewhat quixotic journey to battle the coronavirus to elimination.  New Zealand’s Ardern government was determined to quash it.  In doing so, it imposed one of the most onerous of lockdowns over the course of March and April, 2020.

It was not without controversy, and Wellington lawyer Andrew Borrowdale took issue with its sheer expansiveness.  A particular point of interest for him were the early stages of the five-week lockdown, specifically the calls between March 26 and April 3 by Prime Minister Jacinda Ardern and her officials for New Zealanders to stay home under pain of penalty.  The timing is important here as the stay home restrictions were only formally passed on April 3.

The country’s 1956 Health Act provides for what is called a “Section 70” notice, issued by a Health Officer to restrict movement.  This can be done if the relevant minister has issued an Epidemic Notice pursuant to the Epidemic Preparedness Act of 2006.  This, the Prime Minister did on March 24.  Unfortunately for Ardern, the Director-General of Health Ashley Bloomfield’s Section 70 notice, which came into effect on March 26, only covered the closure of businesses.  It was, in other words, defective.  There had been, for instance, no formal instrument legitimising the need for New Zealanders to stay at home in their “bubbles” or not go to such public spaces as the beach. 

In an assessment by insolvency practitioner and columnist Damien Grant, Ardern proceeded to imperially “issue a slew of orders that were outside her remit. 

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