Thread by @drdeanknight

The legal challenge to New Zealand’s C19 lockdown in Mar/Apr 2020 continues in Court of Appeal today, after Borrowdale challenges two grounds he lost before High Court (scope of health orders; essential businesses list). Snippets below explain background.
#BorrowdaleRound2

Snippets are from a note of mine:
“Stamping out Covid-19 in New Zealand: legal pragmatism and democratic legitimacy” [2021] Public Law 241.

Whether the Health Act power to “isolate or quarantine” people allows a medical officer of health to issue a stay-at-home order for the entire country, regardless of suspicion of infection, is key issue IMV.

Key question is how to interpret words: liberally, in light of emergency purpose etc; conservatively, in way that preserves mobility rights.

The other ground relating to alleged improper delegation of list of essential businesses exception is a technical one. A bit messy but doesn’t implicate heart of lockdown. (And HC’s reasoning when dismissing this ground was a bit weird…).

The scope of health order ground has been debated amongst the academy, since the orders were first imposed.

Profs Geiringer and Geddis favour the narrow interpretation of the power:
Geiringer and Geddis, ‘Judicial deference and emergency power: A perspective on Borrowdale v Director-General’ (2020) 31 Public Law Review 376.

For some other takes, see also:
- MB Rodriguez Ferrere, ‘Borrowdale v Director-General of Health: An Unlawful But Justified National Lockdown’ (2020) 31 Public Law Review 234;
- E Willis, ‘Borrowdale and Executive Power’ (2020) New Zealand Law Journal 397;

- H Wilberg, ‘Interpreting Pandemic Powers: Qualifications to the Principle of Legality’ (2020) 31 Public Law Review 370.

- J McLean and others, ‘Legality in times of emergency: assessing NZ’s response to Covid-19’ (2021) 51 Journal of the Royal Society of New Zealand S197

tandfonline.com/doi/full/10.10…

FWIW, my take — nodded to in my ‘Stamping Out’ note and original blog post below — has been that purpose of emergency power expects its scope to be interpreted liberally (with rights-consistency better assessed in the exercise of the power, not gateway).

google.com/amp/s/ukconsti…

And, ofc, this case is about legal tools used to enact lockdown, ie authority and scope — not policy choice or ultimate wisdom to lockdown. Most folk I know arguing for a narrow interpretation of power, incl Borrowdale, don’t quibble with merits of decision to lockdown per se.