New Zealand, High Court of New Zealand, Borrowdale v Director-General of Health, 19 August 2020

Borrowdale v Director General of Health 2020 NZ.pdf
Geographical Area
Asia Pacific
New Zealand
Case Name
Borrowdale v Director-General of Health
Case Reference
[2020] NZHC 2090
Name of Court
High Court of New Zealand
Key Facts
Was Covid lockdown lawful?
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, overrid or ignored the legislation passed by Parliament – as this forms part of New Zealand’s law through NZBORA. The Court found that although the restrictive measures did limit NZBORA 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 BOR. Therefore, there was no breach of s.1 of the BOR.

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 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 goes on to say that these Statements had the effect of limiting certain rights affirmed by the NZBORA, 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 NZBORA.

The second and third causes of action were dismissed.