Thread by @drdeanknight

Borrowdale v Director-General of Health in the Court of Appeal (Day 1).

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Judges have arrived. Farmer QC et al for Borrowdale; Solicitor-General et al for govt (good to see SG appearing herself); NZLS intervening. Gallery full — except the broken seat (my favourite at the back right).

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Housekeeping about order, timing and 10min non-interruption rule. Court takes different views on when NZLS should appear. Court suggests argument could be done in 1 day — but Farmer doubts. Wisely, Farmer engages 10min rule.

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Farmer kicks off hot: rule of law, parliamentary sovereignty, democracy — and Prof AV Dicey in the first two minutes! 🤓

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Farmer points to counter-factual of speedy enactment of legislation on eve of lockdown to give authority for stay-at-home orders. Instances of doing so on eve of lockdown pointed to, plus vaccination approval validation.

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Farmer invites plain interpretation of section 70 of Health Act, augmented by principle of legality. Power, he says, didn’t allow DG to shutdown like he did.

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Trainspotter bingo: Miller (No 2) v Prime Minister (pop me some 🍿!)

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(Case is apparently nodded to by govt in their subs.)

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PS I would make an awful court reporter. In the opening flurry, I didn’t manage to scribble down Farmer’s encapsulation of the parties’ cases — but, no surprises, it’s as per the snippets I posted earlier this morning.

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Trainspotter bingo: Liversidge v Anderson.

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Common law principle of legality gets rolled out. Worth reading my colleagues on this method — Geiringer on Hansen (esp interaction of s6 Bill of Rights version with purpose) and Wilberg on Borrowdale (esp whether subject to reasonable limits).

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The basic imperative demanded by principle of legality (rights-consistent meaning) won’t be any surprise to these appellate judges. It’s their bread+butter. The action here is all about limits to that interpretive principle (text, purpose, reasonable limits).

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Notably, little engagement - or scribbles - from the judges on this line of argument at his point.

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Drew also explained - but little dispute, I suspect, about how it works.

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Cooper J: “Calling it the principle of legality shows why the presumption exists.

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I have a soft spot for this courtroom, even if it is very much “of its time”. So much warm wood and carpet. Square box-like wooden furniture for judges and counsel. Comfy disco lounge-type seats at the back for the trainspotters.

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Really would benefit from some natural light — perhaps a sky light or two?

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Now we get to the real popcorn: R v Hansen.

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Interesting that Farmer leads off with Elias CJ’s judgment — given her views didn’t carry the day in that case.

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But we do end up with Tipping J and the dreaded 6 step test…. 🙄

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Collins J queries whether Farmer quibbles with the Hansen method. Farmer: No - first step overlooked.

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👀

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Cooper J seems to like this line. That is, first job is to properly construct legislation — in accordance with usual interpretative principles such as principle of legality.

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In other words, orthodox common law interpretation happen before — and separate from — Bill of Rights Act interpretation. Ultra vires argument stands separate from Bill of Rights considerations.

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IMV this doesn’t really help Borrowdale. The Bill of Rights analysis mimics common law principle of legality. And, ofc, s 5 of Interpretation Act 1999 directly throws purpose into the (ordinary, common law) interpretative mix too.

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Collins ponders the role of justified limits under the Bill of Rights Act.

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Hmmm. Any friendly coffee elves lurking out there? We break at 11:30am but there’s barely time for the dash to Greenland for a cheeky flat white. In Dicey’s name etc… ☕️

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PS All this talk of Hansen reminds me the Supremes still haven’t released their ruling in Fitzgerald. I suspect the Bill of Rights methodology will be renovated there, esp — perhaps — a diminished role for purpose in the mix. All relevant to today’s argument.

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French J: Why is the new legislation less costly to rights?

Narrator: Quite.

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The retro clock on the wall — just arms and dots embedded in the wooden wall panel — is also a favourite. Cutely juxtaposed just above the green emergency exit sign.

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Time for the tea break. 🫖

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❤️

And we’re back.

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And funny who you bump into during the tea adjournment… #JosephOn

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An important exchange about whether Borrowdale made a “concession” — about the justifiability of the lockdown (assuming it was authorised).

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Farmer says it was acceptance, not a concession.

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Farmer seems to be contending the section 5 calculus is still live — because there were reasonable alternatives to lockdown.

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Court squirms.

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Squirms is an understatement.

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Court (esp Collins J) seems to think the concession as pleaded and accepted by the HC at para 97 answers the section 5 point.

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Extraordinary if that question was reopened and court required to appraise overall merits of lockdown. No wonder the Crown resisted (memo was filed objecting to attempt to roll back “concession”).

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Farmer now contending that Director-General was “unaccountable” when making health orders.

Narrator: Nonsense. See my earlier post.

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verfassungsblog.de/new-zealand-re…

Cooper J points out his rights were no differently affected whether health order requiring him to stay-at-home whether made by minister or director-general of health.

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Farmer is hanging a lot on the fact the C19 Public Health Response Act was amended to explicitly direct minister to satisfy themselves about Bill of Rights-consistency (s9(1)(ba)). Implication is rights consistency/protections weren’t in play without it.

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This is an unreal submission!
1. S 13(2) expressly deals with substantive Bill of Rights Act consistency.
2. The purpose of Act nods to “proportionality”, which is key Bill of Rights calculus.
3. Bill of Rights consistency is hard-wired into govt mentality.
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The implication is that the govt — or, rather, the Director-General — didn’t grapple with rights-implications when making the health orders, because legislation didn’t so direct. That suggestion I very much doubt. 🤦🏼

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Farmer QC concludes and his junior — Leo Farmer, I think — takes over and starts tracing through the public health legislation over time.

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Argument is that the text and purpose suggest that the special powers re infectious diseases are “targeted” powers, even in their long-standing history.

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Counsel for Borrowdale have a curious way of pronouncing the Director-General’s name: Bloomfield as in bomb, rather than Bloomfield as in groom. 🤷

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My linguist hubby (@alanjwendt) will scold me later about how I’ve explained that…

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Farmer Jr engaging in a forensic and orthodox interpretation of text of section 70. #laws123inaction 🤓

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French J ponders “but purpose of power is to *prevent* an outbreak or spread throughout NZ” — quibbling with objection re prophylactic aim.

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Collins J seizes on alternative meanings of “isolate or quarantine” — which is probably key.

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NZ uses these terms in reverse to the rest of the world btw.

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Farmer Jr refers to WHO guidelines - isolate = separate infected folk; quarantine = restrict or separate those suspected

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Key argument alert.

Farmer Jr: power in s70(1)(f) requires passive subject to be unwell or suspicion they may be. 🤓

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Note to self: curious about whether current international law guidance helps in interpretation of long-standing domestic text and purpose.

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Curious, too, that Farmer Jr is reciting practice about how power has been exercised in the past (and is under C19 Act too) as factor relevant to how scope of power should be exercised. 🤷

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Of course, as a good Christchurch chap, he wears a tie to court — unlike some of the local riff-raff…

Oops. That was lunch.

And now we’re back.

If I was Ian Smith or Danny Morrison, I might comment on the delicious ham-cheese-and-pickle toasted sandwich from @vicbks during the luncheon adjournment.

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We turn to s70(1)(m) and the “blanket” closure of premises -/ again alleged to be ultra vires.

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FWIW I’ve never thought this ground had legs — esp because, in fact, the closure was of *all-subject-to-exceptions* which doesn’t really differ to *some*.

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An an aside, the Stadium of Appeal next door is also hearing a blockbuster — an RMA appeal re the effect of the Supremes’ decision in King Salmon. 🍿

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Now we get to the argument about improper delegation, in the exceptions to the closure of premises — ie the definition of essential businesses.

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Collins J asked where the phrase “essential for the provision of the necessities of life” comes from.

Common phrase. But unknown pedigree.

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That is the very vignette we took to high school students on our uni recruitment visits this year… 🤓

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Farmer Jr seems to be drawing a distinction between delegation for operational purposes and legislative purposes — a distinction Joseph makes in his text I understand (and a point I don’t quite understand why it matters).

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The old case of FE Jackson is being cited in support.

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I don’t get this argument. But then I’ve been used to the standard practice of reserving matters to be determined by officials by reference to standards in resource consents. Newbury etc.

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The problem is that this argument is being made in the abstract — without direct challenges to way exception was applied in practice in particular cases. I suspect there were some rough and messy calls made. But that’s a different type of challenge and evidence.
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Farmer Jr complains “essential to the provision of necessities of life” is a hard standard to apply — such that it lets officials make up their one mind.

I don’t buy this — it’s clearly a standard of some moment and necessarily constraining.

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French J nails it. The complaint is actually that the definition was too general.

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There may have been instances where the exception definition was misapplied in practice — but I don’t think that upsets the framing of that definition/exception.

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Borrowdale concludes.

Stephens rises for the NZLS as intervenor.

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NZLS is only taking points not raised by others.
1. whether s70 power subject to implicit temporal limitation (agreeing with govt/HC that it does);
2. whether delegation to officials inapprop incorp by reference (differing from HC / agreeing with Borrowdale).
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We’re now onto High Court’s “comma” reasoning, ie stop reading exemption definition at comma — and not “as specified on the website”.

Honestly, I’ve never really been convinced by that, even if front-end part is capable of doing all the heavy lifting.

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Quite like the line from NZLS that this argument isn’t really about sub-delegation, if the health order sets a standard.

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Collins J ponders a counter-factual — should the officials committee have made individual recommendations to DG for him to sign off on. (Wise approach but not the one done in practice.)

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Cooper J queries essential *businesses* vs *premises* of specified kind (but order does link it ultimately to premises).

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Stephens takes Court through the rather awkward printed list of essential businesses from website as at 26 March 2020 — argues that the reasonable impression would have been that the list is authoritative.

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Forgive me. I’ve switched off from this argument.

I was moved in awe at what a massive exercise it was to parse which businesses were essential and those that were not. While the walls were falling down around them. Amazing.

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I suspect govt folk would frame that work in different ways if done again — it’s legally messy (and could well be criticised in this appeal) but they were standing up an entirely new regime overnight.

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End of day 1 #phew

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