Thread by @drdeanknight

Day two. 🍿

#LockdownLegalityNZ

The argument first today is about meaning and scope of s70, incl critically whether DG's power to require people to "isolate" could be used over the entire country or was restricted to case-by-case individualised application.

legislation.govt.nz/act/public/195…

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Folk will recall us constitutional trainspotters have debated this interpretative question for months now - and there are many views!

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In exchange about whether s70 should be given permissive or narrow interpretation, Ellis J gives us another stamp in constitutional law bingo:
"Isn't there authority for a more permissive reading of emergency legislation? Liversidge v Anderson?"

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Lots of discussion about whether the Hansen methodology or some alternative approach (Cropp maybe) is appropriate in this case. #eyesglazeover

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Really impt exchange re purpose of s70. Court very alert to importance of purpose when construing words.
Ellis J: "Difficult to achieve purpose if used on individualised basis, in this context?" / "Whole purpose of s70 is to allow exec to act in an emergency."
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Thomas J (testing argument): "Only way health advice could have been achieved was by legislation? Exec could not have responded to crisis?"

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And principle of legality is urged (but Ellis J: "That's just section 6 though?").

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Mijatov argues DG couldn't make order because he wasn't a Med Officer of Health and acted over entire country.
Venning J very sceptical, esp as s22 defined DG as Med Officer of Health. ~"Any part of NZ must mean entirety of NZ?"

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Mijatov worried about absence of pre-conditions/constraints on exercise of special/emergency powers in s70, esp because could be triggered by ministerial authorisation.

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But Court ponders about constraints in the round, ie requirement of a proportionate exercise of power etc.

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Important and detailed exchange on internal structure of s70, esp (f).

For me, this is one of the strongest arguments for Borrowdale, ie the ways the surrounding legislative context affects how we should read (Mijatov say down) the (f) power.

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Ellis J: Re meaning of quarantine, "Surely law must always be speaking?" (ie read provisions in light of current circumstances and quarantine needs may have changed).

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Please forgive all the Ellis J nuggets -- but she is doing a lot of heavy lifting on the dialogue and is very quotable.

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Ellis J: "So you're saying that Parliament should have passed legislation that would have abrogated rights more?"

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Ellis J: "Is Article 4 of the ICCPR relevant?"
Mijatov: "No. ~We have our own principles etc"

ohchr.org/en/professiona…

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Phew. ☕️

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I should add that before morning cuppa, there was some argument from Mijatov about the principle of legality -- and whether/how implicit legislative limiting should work (although the Court was largely silent throughout).

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I mention that because my colleague at Auckland, Hanna Wilberg, has an excellent note on that point, just on the wires last week.

ukconstitutionallaw.org/2020/07/23/han…

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Some time spent looking at examples where similar s70 powers were exercised in the past (presented by NZLS) but apparently nothing about the (f) power.

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Mijatov takes the Court through the English lockdown case - Dolan - but hard to see its relevance here.

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Mijatov closes by running through the various orders, identifying how each does not comply with the legal requirements interpreted as he argues.

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Casey resumes for the DG and PM and takes the Court through the Health Act.

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These tweets are now from the back row of Courtroom No 1 briefly.

A couple of stern scolding glares from security guards sitting at the back — before I could deploy the minute approving tweeting. 😬

But all good to go now.

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Casey: Picks on the purpose of s70 — ~ swift response needed (or words to that effect).

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Gallery has dwindled somewhat, even if the argument about the (f) power underway now really is the blockbuster of the three days.

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Returned to the soft seating of the Socrates Room for this afternoon's session, with Casey continuing for the govt -- and chocolate brownie for sustenance.

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Casey: Borrowdale's narrow interpretation of s70 of the Health Act is untenable because it defeats the purpose of legislation. (This is the nub of the govt's case, I think.)

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Casey explains this doesn't abandon rights: "Rights analysis falls into the *exercise* of power."

(FWIW, this is the point that was my epiphany -- and fuelled my blog post with McLay on the interpretative question.)

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Casey (I think about Borrowdale's suggested rights methodology or Cropp): "That's Moonen. That's not how we do things nowadays."

#casenamebingo

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And Drew.

#bingo

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Interesting exchange about relevance of "other rights" to interpn, ie rights supporting govt's wishes to protect community -- broader base const'n rights, anti-disc'n (effect of virus on Maori/Pasifika esp), UNDRIP etc (but not right to life due to wording).

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Thomas J: "But that's really about whether measures are proportionate and justified?"

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Casey takes court through key words and addresses meanings govt says should be given to them.

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Casey concludes on this ground.
Orphin-Dowell rises for NZLS on this ground.

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Orphin-Dowell: NZLS position is:
- principle of legality / Bill of Rights Act is engaged
- but text needs to be read in light of purpose
- context, incl constitutional context, is also relevant
- context overcomes argued reading down.

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Orphin-Dowell: On this ground (meaning of s70), NZLS is "largely in support" of govt's position.

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Some discussion of Bill of Rights methodology but NZLS doesn't think case turns on point. Phew.

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Exchange about whether sections 5 or 6 comes first (Hansen maj vs Elias CJ etc). #rollseyes

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Also, NZLS reluctant to embrace suggestion that "least inconsistent" meaning must be adopted as universal proposition -- where both meanings breach rights.

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Constitutional context = democracy (and reference to Keith's preface in the Cabinet Manual)!

#bingo

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Orphin-Dowell: Argues (I think) that constitutional context suggests there must be an implicit temporal limitation, ie only intended to be used by exec for short term. (I think because limiting purpose will evolve over time etc and move beyond crisis-mgmt?)

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After arvo cuppa, Mijatov returns to address the third alleged ground -- improper delegation of the determination of what was a permissible "essential business" to MBIE.

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This ground is quite factual — so much that is being disucussed is what was being done on the ground at the time etc.

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Ellis J: "What is purpose of the non-delegation rule?"

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Ellis J: "Director-General not especially qualified to determine what businesses are essential?"

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Court concerned to read things in a "practical and realistic" -- and eager to test what Borrowdale says should have said in order (eg listing all businesses or categories etc).
Thomas J keeps coming to terms of order -- suggesting that description is enough?

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Carltona!

#bingo

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