Date
Geographical Area
Pacific
Countries
New Zealand
Case Name
Borrowdale v Director-General of Health & Ors
Case Reference
[2020] NZHC 2090
Name of Court
High Court of New Zealand
Key Facts
In response to the rising number of Covid-19 cases within New Zealand and internationally, the Government declared a nationwide state of emergency and on 21 May 2020 introduced a four-stage alert system – level 4 being complete lockdown. On 25 March 2020 the whole of New Zealand was placed into alert level 4, where it remained until 27 April 2020.
The applicant – Borrowdale – challenged the lawfulness of the restrictions imposed by the Government from 25 March 2020 to 13 May 2020. During this time the Director-General of Health made three orders under s.70(1)(f) and (m) of the Health Act 1956.
1. 25 March order: under this s.70(1)(m) order all premises in New Zealand were required to close, except (among other things) private dwelling houses, and forbade people from congregating in outdoor places of amusement or recreation in all of New Zealand (level 4).
2. 3 April order: under this s.70(1)(f) all persons within New Zealand were required to isolate or quarantine by remaining at their current place of residence, except for permitted personal movement, and to maintain physical distancing (level 4).
3. 27 April order: under this s.70(1)(f) and (m) order all persons within New Zealand were required to isolate or quarantine by remaining at their current place of residence, but allowed more instances of permitted movement (level 3).
Borrowdale’s challenge took form in three separate causes of action: i) he claimed that the announcements made by the Prime Minister and others during the first nine days of lockdown (25 March – 3 April) were an unlawful direction of more restrictive measures; ii) he claimed that the three orders were ultra vires and unlawful as the Director-General of Health had exceeded his powers under s.70(1)(f) and (m); and iii) he claimed that Order 1 involved an unlawful delegation of the Director-General’s s.70(1)(m) power to determine which premises need to close.
The applicant – Borrowdale – challenged the lawfulness of the restrictions imposed by the Government from 25 March 2020 to 13 May 2020. During this time the Director-General of Health made three orders under s.70(1)(f) and (m) of the Health Act 1956.
1. 25 March order: under this s.70(1)(m) order all premises in New Zealand were required to close, except (among other things) private dwelling houses, and forbade people from congregating in outdoor places of amusement or recreation in all of New Zealand (level 4).
2. 3 April order: under this s.70(1)(f) all persons within New Zealand were required to isolate or quarantine by remaining at their current place of residence, except for permitted personal movement, and to maintain physical distancing (level 4).
3. 27 April order: under this s.70(1)(f) and (m) order all persons within New Zealand were required to isolate or quarantine by remaining at their current place of residence, but allowed more instances of permitted movement (level 3).
Borrowdale’s challenge took form in three separate causes of action: i) he claimed that the announcements made by the Prime Minister and others during the first nine days of lockdown (25 March – 3 April) were an unlawful direction of more restrictive measures; ii) he claimed that the three orders were ultra vires and unlawful as the Director-General of Health had exceeded his powers under s.70(1)(f) and (m); and iii) he claimed that Order 1 involved an unlawful delegation of the Director-General’s s.70(1)(m) power to determine which premises need to close.
Decision and Reasoning
First Cause of Action: The Court had to consider whether the public and widely publicised statements made by the Prime Minister and others created more restrictive measures than those prescribed by Order 1 – in that they made New Zealanders believe they were required by law to stay at home for the nine-day period. The Court found that the statements made by the Prime Minister and others conveyed commands, not guidance, in that they conveyed that there was a legal obligation to comply. Therefore, the Court held that the restrictive measures imposed by the statements during the first nine days of lockdown (25 March – 3 April) went beyond the terms of Order 1.
The Court then considered whether the restrictive measures breached s.1 of the Bill of Rights 1688 (BOR), in that the Executive either suspended, dispensed with, overrode or ignored the legislation passed by Parliament – as this forms part of New Zealand’s law through the Bill of Rights Act 1990 (BORA). The Court found that although the restrictive measures did limit BORA rights – the right to freedom of movement, peaceful assembly and association – in a way that was not prescribed by law, they did not constitute a suspension of either laws or their execution in terms of BORA. Therefore, there was no breach of s.1 of the BORA.
Second Cause of Action: The Court held that the three Orders were correctly authorised, in that they were made within the limits of s.70(1)(f) and (m).
Third Cause of Action: The Court held that the definition of “essential businesses” was clear and fixed at all times, there had been no delegation, and no breach of the rule of law.
The Court then considered whether the restrictive measures breached s.1 of the Bill of Rights 1688 (BOR), in that the Executive either suspended, dispensed with, overrode or ignored the legislation passed by Parliament – as this forms part of New Zealand’s law through the Bill of Rights Act 1990 (BORA). The Court found that although the restrictive measures did limit BORA rights – the right to freedom of movement, peaceful assembly and association – in a way that was not prescribed by law, they did not constitute a suspension of either laws or their execution in terms of BORA. Therefore, there was no breach of s.1 of the BORA.
Second Cause of Action: The Court held that the three Orders were correctly authorised, in that they were made within the limits of s.70(1)(f) and (m).
Third Cause of Action: The Court held that the definition of “essential businesses” was clear and fixed at all times, there had been no delegation, and no breach of the rule of law.
Outcome
The first cause of action succeeded in part. The Court issued a declaration stating that there was no legal requirement that New Zealanders stay at home in their “bubble” during the first nine days of lockdown as had been put forward in statements from the Executive branch of the Government. The declaration held that these statements had the effect of limiting certain rights affirmed by the NZ BORA, in particular the rights to freedom of movement, peaceful assembly and association. It notes that although there is no question that the requirement was a necessary, reasonable and proportionate response to the Covid-19 crisis at that time, the requirement to stay home was not prescribed by law and was therefore contrary to the NZ BORA.
The second and third causes of action were dismissed.
The second and third causes of action were dismissed.
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Disclaimer
This case law summary was developed as part of the Disaster Law Database (DISLAW) project, and is not an official record of the case.
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