The first nine days of New Zealand’s COVID-19 lockdown were only partially unlawful, the country’s high court has found.
Laywer Andrew Borrowdale’s case against the government was considered in July, with a decision handed down on Wednesday.
A full bench of three judges waved away a string of complaints made about the lockdown’s legality.
But the court found authorities erred on one ground – not placing their initial request for Kiwis to stay in their household ‘bubbles’ in law.
‘While there is no question that the requirement was a necessary, reasonable and proportionate response to the COVID-19 crisis at the time, the requirement was not prescribed by law and was therefore contrary to section 5 of the New Zealand Bill of Rights Act,’ the judges said.
Jacinda Ardern’s (pictured) decision to place the country into level four lockdown on March 26 was a breach of parliamentary law dating back to the 1990s
‘Those announcements had the effect of limiting certain rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 including, in particular, the rights to freedom of movement, peaceful assembly and association.’
In a media briefing on March 23, Prime Minister Jacinda Ardern ordered residents to stay at home.
‘You can leave your home for fresh air, a walk, exercise. To take your children outside. But remember the simple principle. It must be solitary,’ she said.
‘People are afraid and they are anxious. We will play the role of enforcer.’
As part of the nationwide lockdown sports matches were banned, all non-essential services were closed and foreigners prevented from entering the country.
Ms Ardern was heralded for her role in suppressing the spread of the virus – with the country as of Wednesday recording just 1,649 cases and 22 deaths compared to Australia’s 23,993 infections and 450 deaths.
But legislation allowing authorities to enforce the directive wasn’t written into New Zealand’s law books until April 3, the New Zealand Herald reported.
While an official order was made to legally ban congregations and close essential business, the order to stay within ‘bubbles’ was only made in announcements.
Attorney-General David Parker held a press conference on Wednesday afternoon where he defended the government’s swift action.
Pictured: The drop in cases in New Zealand as the country put in place a level four lockdown
Lockdown measures were extended in New Zealand after new community transmissions were detected on August 10
Testing ramped up after several clusters formed across the country last week putting an end to a 100 day streak without community transmissions for COVID-19
‘We always thought we were acting legally all of the way through,’ he said.
‘What we were trying to do during those early days was take people with us from … very few restrictions to … very broad restrictions.
‘You can see that the court has gone to a lot of effort to record that this was an emergency… they just think things should have been written down a little bit more.’
The news could present a legal issue for the government if anyone arrested or detained from March 26 to April 3 takes action.
Attorney-General David Parker held a press conference on Wednesday afternoon where he defended the government’s decision to act the way it did
Auckland University of Technology Professor of Law, Kris Gledhill raised those concerns in May.
‘If the lockdown was not lawful until part-way through, people arrested in the week between March 26 and April 3 should not have been,’ he wrote in the Conversation.
‘And if, despite the strong arguments of the government, the lockdown was arbitrary, even arrests after April 3 will have been improper. Those people will have a pretty clear claim for unlawful detention and compensation, despite their selfish actions. ‘
Mr Gledhill told Daily Mail Australia it’s possible people convicted of criminal charges could have them overturned.
‘This means that any prosecutions for breaching the lockdown in that initial period will fail,’ he said.
New Zealand has four coronavirus alert levels. The nation is currently under Level 3 restrictions after new community transmissions were detected last week
But he said it was unlikely anyone would successfully argue they were falsely imprisoned.
‘If the police detain someone and it tuns out that their legal power did not exist, that is a false imprisonment,’ he said.
‘The real question will be whether people were detained for long enough for lawyers to be willing to take on the cases.’
Over the nine day period 15 charges were laid under the Health Act.
But authorities expect few, if any lawsuits will emerge as result of the High Court ruling.