Covid Emergency Response Measures: The Rule of Law vs. the Law of Rulers

Covid Emergency Response Measures: The Rule of Law or the law of rulers? Roger Partridge

The rule of law or the law of rulers? So Jacinda saved my life illegally. Like I should care. Twitter What is the Rule of Law? Any power exercised by the Government must be based on legal authority Everyone is subject to the law: both public and politicians alike The law must be accessible and, so far as possible, intelligible, clear and predictable The clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law. Dwight D Eisenhower

The rule of law or the law of rulers? One of the challenges of a democratic government is making sure that even in the midst of emergencies and passions, we make sure that rule of law and the basic precepts of justice and liberty prevail. Barack Obama (2016)

Extraordinary lockdown powers Section 70, Special powers of medical officer of health (1) For the purpose of preventing the outbreak or spread of any infectious disease, the medical officer of healthmay (f) requirepersons, places or things to be isolated, quarantined, or disinfected as he thinks fit (m) by order published in a newspaper broadcast by a television channel or radio station: (i) require to be closed, until further order all premises within the district of any stated kind or description: (iii) forbid people to congregate in outdoor places of amusement or recreation of any stated kind or description(whether public or private) within the district

First Health Act Order For the purpose of preventing the spread of Covid-19, an infectious disease, I, Dr Ashley Bloomfield make the following order pursuant to s 70(1)(m) 1. I require to be closed until further notice, all premises within all districts of New Zealand except those listed in the appendix to this order. I forbid people to congregate in outdoor places of amusement or recreation of any kind or description (whether public or private) in all districts of New Zealand until further notice. 2. For the purpose of this order congregate does not include people maintaining at all times physical distancing [of 2 metres]

Stay in your bubbles Stay at home Do not visit others or receive visitors Go outside only for limited purposes Do not go beyond immediate neighbourhoods except for essential services These moves will be enforced. And we will be the enforcer

Second Health Act Order For the purpose of preventing the spread of Covid-19, an infectious disease, I, Dr Ashley Bloomfield make the following orders pursuant to s70(1)(f) : 1. I require all persons within all districts of New Zealand to be isolated or quarantined as follows: a. To remain in their current place of residence except as permitted for essential personal movement b. To maintain physical distancing Second order simply presented as providing greater clarity or guidance

The challenges to the two orders Challenges to first order: o Insufficient scope o anystated kind does not mean every description o Director General was not entitled to delegate decisions over what was an essential business to MBIE Similar challenges to second order

The outcome in the High Court First order did not have sufficient scope to support Alert Level 4 restrictions Restrictions were limitations on fundamental freedoms protected under NZBORA that, for first 9 days, were not prescribed by law Rejected separate claims of illegality Found restrictions were necessary, reasonable and proportionate

Do Governments actions raise rule of law concerns? The High Court agreed that the two orders were valid, even if the first one was too narrow Government s response was nevertheless unsatisfactory 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 Civil Defence Emergency Management Act 2002. Attorney General, David Parker, Facebook

Rule of law breaches No legal basis for Level 4 lockdown powers purportedly exercised by the Government Did Attorney General breached duty to uphold rule of law? Overall messiness also raises rule of law issue: Was the law as accessible and, so far as possible, intelligible, clear and predictable as rule of law requires?

Former AG, Christopher Finlayson QC How many of us were ever really sure of the precise requirements of staying local ? How many of us knew at any point what the Police could or could not ask us to do? Many restrictions imposed on New Zealanders were announced by the Prime Minister in press conferences and were often inconsistently communicated across the government and Police. If New Zealanders wanted to find the actual legal authority for many of these rules particularly in the early days of level four they would have been searching for a long time.

Not just a counsel of perfection Failure to dot i s and cross t s or something more? China in lockdown from 23 January and Italy from 21 February Government did pass special legislation the Covid-19 Public Health Act 2020 but not until May for the move to Alert Level 2 Public support and lawfulness are not the same thing Terrible precedent