Thread by @drdeanknight

Day three. 🍿

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Housekeeping: balance of argument about delegation ground, reply. and submissions on relief still to be completed.

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Casey: Returns to processes within MBIE for "advice" on whether businesses were essential etc. Ombler evidence that MBIE received 25,000 emails and calls about whether businesses were essential.

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(My difficulty with this line is, while I accept order set out (by description) the class of businesses that could open, the MBIE processes felt like it did the heavy-lifting -- ie, the listing on the website was material to the whether folk could operate.)

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Venning J: Troubled by the words after the comma (ie "as described on [MBIE website]"). Fine if you stop at comma ("ie businesses essential to necessaries of life"). But the words after refer to website that changes from time to time.

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Casey: The words after the comma more in the nature of an explanatory note.

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Casey: Govt position is that the definition of essential services WASN'T a case of incorporation by reference (and there are provisions that would regulate that anyway).

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Van Alphen Fyfe rises for NZLS on the delegation point. But mic problems arise again #muffle #muffle. Broadly, we think, rule of law concerns about they way essential business category managed and would have preferred strong specificity or designation.

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Thomas J re the commas etc: "Not enough attention paid to grammar nowadays." 🔥

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Casey resumes for govt in reply.

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Casey: ~If all this turns on the use of a comma or a fullstop, then there's a risk we're dancing on the head of a pin!

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Casey returns to first 9 days where law was light. Really important exchange, echoing NZLS, about whether any gap between stmt--law translates into actionable legal problems in this proceeding.

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Casey: If there was a gap between stmt and rule, legality turns on what state did next. In other words, did Police enforce (non-mandatory) stmts? But none of the individual enforcement decisions is before the Court in this proceeding.

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Casey: Evidence is that the Police DIDN'T enforce the non-mandatory statements. Only about 15 prosecutions, 2 convictions so far, some withdrawn.

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Thomas J: And most likely that those prosecutions etc were under (m) order where Police taking action because its in public?

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(IMO, these are the key points about the early days -- the argument put best by the govt in its reply that, despite the messiness of overlapping layers, any questions of illegality from stmt--law disjuncture don't arise in this proceeding.)

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#headstotheTABforacheekywager

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Casey repeats the argument that if, even if the DG didn't realise he was doing so during the first 9 days, the Court can find he was using statutory powers to require isolation under s70(1)(f) because there is no requirement as to formality.

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Mijatov resumes in reply.

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Mijatov: Govt's submissions are "plea in mitigation", not about lawfulness. Govt must point to lawful power that *was* used. They point to either s3A advisory power or series of "inadvertent" orders. But DG did not purpose to issue (f) orders in first 9 days.

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Mijatov explains evidence on enforcement during first 9 days further. Beyond 15 prosecutions, about 100 warnings -- half oral, half in writing.

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Mijatov appears to concede the any early prosecutions must have been for breaches of (m) order.

Thomas J: "But then there's no [legality] problem?"

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(As an aside and on comma paradox, I must confess I read s1 of Bill of Rights 1688 as addressing *suspension* of law or their execution -- not a prohibition on active promulgation of laws: "pretended power of suspending of laws, or the execution of laws")

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(And, I think from memory, the term "execution" in historical context is about implementation and application etc.)

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Back after cuppa.

(As an aside, @VicBooksCafe has very good cheese scones.)

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There was another brief exchange about Bill of Rights Act methodology before the break (Hansen, New Health, Cropp, ICCPR etc etc). But, apologies, my eyes glazed over again.

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The only bit I remember was a pointed question about whether former CJ Elias' dissent has ever been applied elsewhere.... #crickets

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Argument now turns to question of relief, which in judicial review proceedings is discretionary (ie even if something found to be unlawful, doesn't automatically mean applicant gets a declaration or other remedy.)

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This raises question of whether the case is now only of "historic interest", whether its relevant that the DG might have used other powers if what he did is found to be unlawful, etc.

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This is hugely important in this case. Even if there might have been some softness in the actions taken, there is a question of whether the issues are legally ripe in this case, ie whether they translate into declarations of illegality etc.

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IMO the absence of stories about the consequences of enforcement (ie prosecutions, warnings, effect on will etc), it's difficult to give life and context to any stmt--rule disjuncture.

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Govt’s position on relief is that it’s complicated, may give rise to unintended consequences, and any errors can be sufficiently addressed in the Court’s reasons without any need to orders.

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“Decision reserved.”

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