Thread by @drdeanknight

Court is back.

#LockdownLegalityNZ

Casey: Distinguishes between: (a) power to make a statement (ie legality) and (b) legal requirement to do something that exposes person to criminal prosecution if not followed. Section 5 and prescribed by law only requires, she says, the former.
#LockdownLegalityNZ

Thomas J: "Isn't is it important what was *inferred* from the statements?"
Casey: Doesn't matter.

Casey: If the statements were mandatory, then must be a direction under s70. If not, then the statements didn't limit rights. If halfway house, then must have been authorised under s 3A of Health Act.

#LockdownLegalityNZ

On the latter:

legislation.govt.nz/act/public/195…

Casey: Every jingle, statement on telly, tweet etc must be treated as a statement by DG -- all done at his direction etc.

#LockdownLegalityNZ

[slight interruption as the tweeter had chores]

Catching up:
- "team" of folk presenting all public health messages
- regulatory regime "not fully formed" in the very early days (as DG response to questions showed).

#LockdownLegalityNZ

Casey: Points to Part 3A as revealing the public health philosophy of voluntary compliance first -- explaining why the Covid19 response started with the voluntary compliance at the heart.

Bumpy exchange -- court seems incredulous with argument that DG must have implicitly made s70 order from day one communicated by the PM -- feels ex post facto esp because little evidence about such a decision having been made.

Casey: Points to rolling maul response (my words not hers). The regulatory framework was being worked out on ground, quite late before and into lockdown. Originally thought that a case-by-case would do. But then realised that better rules would be required.

#LockdownLegalityNZ

Court returns after arvo cuppa: "We don't think we need to hear much more from the Crown on this ground."
Casey: 😲

#LockdownLegalityNZ

Casey: Refers to scholarship on regulatory theory and range of techniques: command / competition / consensus / communication. Mix of regulatory techniques used here.

#LockdownLegalityNZ

Court still struggling with backup argument about implied mandatory order.
Thomas J: "How can you make a direction if you don't think you have done so?"

#LockdownLegalityNZ

Thomas J jumps out of her seat when Casey argues it was "much more likely" that lockdown achieved through voluntary compliance (as opposed to threat of coercive power) -- "much more likely?!?!?"

#LockdownLegalityNZ

Casey mops up some points on Bill of Rights Act:
- were rights limited? voluntary compliance doesn't limit rights
- jurisprudence on prescribed by law pretty light and doesn't require much

#LockdownLegalityNZ

Slight disruption to transmission as NZLS counsel’s mic is not working — so radio silence. Help!

#LockdownLegalityNZ

Was about to despatch a speedy student across the road to pass a note to the court taker — but a registrar has been notified and will try to fix it!

#LockdownLegalityNZ

During the radio silence, it seems argument from NZLS was that the PM’s statements, at their highest, amounted to pretended power of law *making*. Hmm. But text of s1 of Bill of Rights 1688 only prohibits “suspending of laws, or the execution of law”?!?

#LockdownLegalityNZ

If I was a sports commentator, I probably would have done a wrap of day 1. As someone said, it's probably still nil all. Borrowdale says stmt--law disjuncture is bad; Govt says it's complicated and more than just legal commands; NZLS said <muffle muffle>.

#LockdownLegalityNZ

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