Thread by @drdeanknight

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#lockdownlegality

Suggestions welcomed for the an alt hashtag.

#BorrowdalevsTheEliminator

Will add a NZ suffix to the hashtag — seems the have similar issues elsewhere...

#lockdownlegalityNZ

Court kicks off, after addressing some procedural matters. Curiously, Court is hearing each of the 3 grounds of review separately - hearing from all parties on each in sequence.

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It look 4min for Fitzgerald v Muldoon to get its first name check.

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Question of appropriate relief just waved to - appears the Crown is saying that, even if Borrowdale succeeds, no relief should be granted; NZLS are saying there should be a separate hearing on relief if necessary.

And only 9min before another student favourite, Entick v Carrington, gets mentioned - the usual quote about interference needing to be found in positive law - look in the books etc.

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Ellis J: But if the orders are valid, then it's a little different to Fitz v Muldoon?

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I thought Ellis J was alluding to the early premises closure order, but it might have been the isolation order? IDK

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Thomas J: But this is different to Fitz v Muld? Because here the power lies to suspend the law lies with the exec, not the legislature?

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Mijatov (for Borrowdale): But Borrowdale says that legn WAS needed (because of later arguments about scope of s 70 etc)

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And we have the trifecta, with reference to and breakdown of the Bill of Rights 1688: legislation.govt.nz/act/imperial/1…

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So, did the exec (PM etc) suspend the operation of the Bill of Rights Act 1990 without the consent of Parliament through their public statements?

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Curious question from Ellis J: But could the government have amended s70 of Health Act 1956 under Henry VIII power in the Epidemic Preparedness Act 2006?

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(Fascinating question, which we did reflect on at the time -- could the govt have expanded their emergency powers through by H8th power - but a narrow one that only allowed amendment of primary legislation to remove barriers, not grant new powers etc.)

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Ellis J: But this isn't a case of the Bill of Rights Act 1990 being suspended -- just limitation on the rights contained in the Act?

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Thomas J: Invites Mijatov to address govt's argument that public statements were only *advice*, not legal obligations etc.

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And Mijatov duly takes Court through key passages of selected statements made by the PM. Stay at home, etc. We will enforce, etc.

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Thomas J: Case is essentially that PM's statements etc go further than early health order?

(This is the nub -- although imo there is other law in the back which might fill the gap.)

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Mijatov: It's not credible for the govt to now argue that compliance with lockdown was only voluntary.

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Mijatov: Police said their role was to educate and encourage -- but that doesn't line up with what that usually do.

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Ellis J: But PM here *could* have asked country to [voluntarily] comply -- which is another point of difference with Fitz v Muld?

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Mijatov: Argument is that the suspended laws are the rights in the NZ Bill of Rights Act 1990 and section 5 (~perhaps mainly the prescribed by law requirement).

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Forgive the random bits-and-bobs in the thread -- this 10min delay and my memory-like-a-goldfish makes it all rather tricky....

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Court stopped for a cup-of-tea at 11:30-11:45am. However, some of us failed to make a speedy dash to VicBooks for our flat white so are tweeting on empty. ☕️ Sigh.

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Mijatov: Invites Court to compare text of public statements with first health order -- obvious disjuncture.

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Ellis J: Did s 70(1)(f) order need to be given my written notice (ie could it have been given orally)?

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Thomas J: (clarifying) Was an isolation order made in substance or implicitly [in the early days, as Crown argues as a backup argument]?

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Wow. Court pressing whether the PM's statements to stay at home might have been in substance, at the wishing of DG, a requirement to isolate under s 70. Perhaps some problems making this after the fact, when no-one seemed to nod to that at the time.
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Mijatov concludes on first ground of review (will be back for more juicy grounds).

Casey QC commences for DG/PM -- with general opening. Speaks of "courageous" and unprecedented decisions made in March. Nods to effectiveness of response and dangers of delay.

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Casey: "context and framing is critical". Section 70 orders were tools, not designed to deliver entire lockdown. Many pillars made up govt's response.

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Casey:
Pillar 1: public health advice (encouraging voluntary compliance)
Pillar 2: removal of barriers to compliance
Pillar 3: state of national emergency and civil defence powers
Section 70 coercive powers were backstop powers.

#LockdownLegalityNZ

And points to the contemporaneous paper trail supporting this multi-pillar approach — not ex post facto justification as as been argued.

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Casey takes court through key health modelling and evidence.

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Casey: Paints a picture of risk of death and burden from virus. Expected to be "heavily unequal burden", esp Maori, Pasifikia, elderly, low socio-eco class etc.

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Court questions whether this background etc is relevant to questions of legality - especially as they have read the evidence.

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There is kindness in the world... ☕️

Casey: s 3A of Health Act allows govt to make "strongly worded ask"

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Casey: Text to citizens on lockdown was warning of hazards under s9(2)(e) of Civil Defence etc Act, not directly backed up by crim sanction
Venning J: that's a "long bow"?

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