Thread by @drdeanknight

Borrowdale v Director-General of Health in the Court of Appeal (day two).

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Apologies to my fellow trainspotters but core uni duties (our first LAWS213 classes on admin law and judicial review) trump spectating today — so I’m dipping in-and-out of the hearing

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I’ll try and catch up on events at the tea break. But the NZLS has finished and now the Solictor-General, Jagose QC, is on her feet leading the govt’s case.

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SG pushes back against invocation of Simms (ie avoiding inadvertent/casual breach of rights by legislature) by pointing out deliberateness by which previous health legn grappled with limiting rights.

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SG now diving deep into section 70 text.

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Interesting questions about way minister can authorise exercise of s70 powers — in addition to epidemic notice and state of emergency.

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SG makes point that s70 specific powers necessarily infringe people’s rights extraordinarily.

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SG: Parliament could not have been more clear that exercise of powers would affect rights.

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SG: There is a power to isolate/quarantine and, in light of concession, Borrowdale can take it no further.

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Collins J: But where does section 6 sit in relation to this?

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SG will deal with that in due course, dw, fams.

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SG navigating through key health orders made.

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Nothing in the text, purpose, context that suggests "persons" can't mean everyone.

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Some discussion of inconsistent use of "persons" and "people" throughout - probably attributable to "modern drafting" style etc.

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Cooper J: And, too, modern drafting catching up and admitting that the medical officer of health might be a woman!

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Collins J: What about isolate? Were people "isolated" if they were told to remain in their household bubbles?

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(That's putting to one side the crazy flipping of the terms isolate and quarantine in NZ!)

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SG: They were isolated from others outside their bubble. But also section mentions "as he thinks fit" -- and allows them to determine what's most approp way of isolation in light of particular disease/threat.

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Time for tea. ☕️

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I’ve managed to stride back up the hill to the Court itself - and will be able to observe in person again for the pre-luncheon session, before afternoon teaching duties. 🤓

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One of the curious remnants of the pandemic and heightened public health precautions is the set of yellow-and-black stickers in the form of a cross on every second seat in the gallery - counselling folk to sit apart. A sage reminder.

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I’m pleased to be able to hear the SG in person briefly. I’m a big fan of her advocacy - which fits the mould of sage counsel for the Crown. Clear, measured and not combative. The govt’s position is put - its strengths and soft spots both acknowledged.

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SG points to use of term “premises” in section 70, which is defined in the Act but unhelpfully by reference to premises etc. 🙄

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Fascinating to see judges visibly work their way through the text of section 70 and health orders — and grapple with textual quirks. That’s a familiar exercise for many of us! 🤓

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Now dealing with exclusion/glosses to ability to prohibit public congregation. A curious example of wandering in the Bot Gardens apart from each other. Or perhaps gathering to view the the Henry Moore statue. #bougie

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SG returns to activation of s70 powers by minister - and instances use of empowerment re returnees from Wuhan.

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SG says powers authorise orders. And Borrowdale’s challenge should then stop there — because of concession made.

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SG says Borrowdale conceded that if limits were prescribed by law, they were justified.

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SG forcefully argues that Borrowdale shouldn’t be able to now all that back. Speaks about way the case was managed to a speedy hearing on basis of that concession and limited case.

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Collins J: But section 6?

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SG: Comes after section 5.

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I’m covering my ears and eyes now — as they’re debating the dreaded sequence of ss4-5-6 ala Hansen. 🤦🏼

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Let’s be honest. This sequencing stuff is a mess — even (and perhaps especially) after Hansen.

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Do Tipping J’s 6 steps count towards my daily exercise goals?

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Debate continues about whether common law principle of legality precedes Bill of Rights Act interpretative process.

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French J wonders if we should start the discussion again? 🤔

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It’s not my field but I do wonder if primacy needs to be given to the Bill of Rights as an interpretative code over the common law when the former is engaged?

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The suggestion is that the determination of “natural” meaning at step 1 — if imbued with principle of legality — may make the statutory principle of legality in section 6 redundant and unnecessary. But surely that can’t be so?

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Cooper J: So, are the Supremes reconsidering Hansen? 😱

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Cooper J: Eg, Fitzgerald and three strikes? Do we know when that’s due to come out? #crickets

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To dash back, IMV surely both orthodox interp (text in light of purpose/context and presumptions) and BoR interpretation must be in play together — we can’t escape the fact that all these things are in play? #deathtothesteps

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SG leaves health order powers/BoR there and moves to essential businesses issue.

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SG names those on the All of Govt groups — not her, but certainly the DG.

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SG explains way essential businesses regime was set up by AoG group and Cabinet - at high level of abstraction - before the order was made and how the govt would provide guidance on detail etc.

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SG makes it clear she is not arguing the website was incorporated by reference or DG considered/approved specific lists. The power he exercised started and stopped with definition of essential businesses in the order.

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In other words, “as described etc” was only explanatory — #dontreadpastthecomma

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Collins and French JJ visibly struggling with covering their eyes and not reading past the comma…

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SG doing a good job explaining this point — perhaps better than HC! Making the case that list was only explanatory and guidance (even if felt adjudicative and legislative)

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Luncheon etc.

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And we're back.

For the culinary folks, a cheeky sausage roll from the Mojo -- as it's been one of those weeks!

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SG accepts that, on their face, decisions that Tiwai smelter and golf greens decisions seem incorrect - and wrongly represent a power to adjudicate. But really a problem in exercise of power in those cases -- not a problem of improper delegation by SG.

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Those disputes are different public law disputes and causes of action.

That surely must be right -- those issues aren't ripe for review in these proceedings.

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Remedial point taken by the SG -- suggesting, even if the court thinks these essential business decisions erroneous, Court shouldn't grant declaration bc not ripe re Borrowdale.

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And SG ends her submissions.

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Farmer QC rises in reply.

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Farmer emphasises point in Hansen that Bill of Rights does not oust s5 Interp Act expectations - ie text in light of purpose etc.

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And Bill of Rights considerations feed into assessment of purpose.... 🤷‍♂️

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Again, Farmer argues the principle of legality should do all the heavy lifting first - in the determination of intended meaning. And no need to go on to Bill of Rights if rights then aren't limited.

Narrator: #shakeshead

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Farmer QC again bangs the drum on the idea that govt should have passed C19 Public Health Response Act in the day before the lockdown.

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This seems like fanciful revisionism, uttered in the comfortable calm after the pandemic passed. Read some of the insider accounts of how the wheels were spinning at that time. No realistic prospect of that (other than a bald - let Dr Ashley do whatever power).

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As it was, we criticised the process for enacting the C19 PHR Act -- and some of the design problems.

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And a colleague points out, be mindful also of the sweat, tears and energy that was being devoted to the wording of section 70 health orders at that time!

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If the case is that the govt should have rushed emergency legislation to deal with a rapidly developing and evolving emergency, you're more likely to get something like the Bubonic Plague Prevention Act...

enzs.auckland.ac.nz/docs/1900/1900…

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I think Farmer QC also fails to recognise that, on the eve of lockdown, there wasn't necessarily certainty that section 70 powers *would* be used. My inkling is that the initial leaning was towards the Civil Defence powers...

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Note, too, who were the faces of the govt response in the first week when we locked down. Dr Ashley wasn't the centrepoint, as he is now. Ombler, Stuart-Black and Bush were much more prominent...

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Farmer Jr points to s137A HA as regulating incorp by reference etc (but any deals with in "regulations, standards, or other compliance documents" - and might not address s70 orders?)

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Decision reserved. #fin

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I'm grateful for permission to tweet these important cases.

And I hope the intermittent reportage, random observations and occasional reckons are useful to the crowd of trainspotters... 🤓

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One final apology, for when I sit at the back left seat of the gallery... #iknowimanodderandashaker 🤦‍♀️

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