Even in emergencies, democratic governments must comply with the law, according to a new report The rule of law or the law of rulers by the New Zealand Initiative.

As legal challenges emerge to question the lawfulness of the Government’s restrictions, courts will decide whether the lockdown was illegal.

New Zealand Initiative chairman Roger Partridge said it is crucial for the sanctity of the country’s institutions that New Zealand is governed according to the rule of law, not the law of rulers.

“Alert Level 4 deprived Kiwis of many of their fundamental freedoms – to visit friends and family, including those unwell or dying, to undertake everyday recreational activities and to perform paid work. The restrictions caused immeasurable hardship, and Kiwis should be able to rely on the Government to restrict their freedoms lawfully,” he said.

Throughout the pandemic, the Government relied on notices issued by Director General of Health Ashley Bloomfield under the Health Act 1956 to curtail the freedoms of all New Zealanders.

It only passed the Covid-19 Public Health Act 2020 (C19) Act immediately before the commencement of the Alert Level 2 restrictions on 13 May.

While the lockdown successfully eradicated the coronavirus from the country, Partridge said the legal underpinnings of the lockdown may not have been as robust as the Government has intimated – especially during the lockdown’s early days.

“During the first week of Alert Level 4, many activities prohibited according to the rules – such as swimming or surfing at the beach, hunting, or visiting individual friends or relatives – were not restricted according to a proper reading of the Health Act notice relied on by the Government,” Partridge said.

“This means that during the first week of Alert Level 4 there was no lawful basis for enforcement action by the Police against people who undertook these activities,” he said.

The Government took steps to shore up the legal basis of the lockdown when the Director-General issued a new Health Act notice. However, the validity of both notices is now being challenged in the courts.

Partridge added that while the Government eventually got round to “dotting its i’s and crossing its t’s,” the legal basis for implementing the Alert Level 4 lockdown was “messy” and vague.

“It is disappointing that Attorney General David Parker has refused to acknowledge the legal shortcomings at the commencement of the lockdown.

“His refusal harms public confidence in the rule of law and the administration of justice far more than admitting the Government had not lined up all its ducks before pulling the lockdown trigger.

Since the Government has high levels of support for its lockdown, perhaps Kiwis will not be troubled by this, Partridge said. However, public support and lawfulness are not the same thing and Kiwis should be concerned if the Government may have acted unlawfully.

“Given the scale of restrictions imposed on personal freedoms during the lockdown, it should make no difference that it has popular support,” he added.

These concerns and risks could have been avoided if the Government had introduced its special Alert Level 2 legislation before the lockdown. Other countries like the United Kingdom were able to do this, Partridge said.

Unfortunately, the New Zealand Government appears to have taken at least some shortcuts in implementing its lockdown. A future court – or Royal Commission – may yet find the entire lockdown was illegal.

“If the Government side-stepped the law in the heat of an emergency that sets a bad precedent which could be exploited by future Governments. Next time, the motives might not be so pure.

“Indeed, this Government is showing signs it may be getting used to taking shortcuts, such as passing legislation under urgency and truncating the time for public submissions, along with Cabinet’s recent decision to suspend the Regulatory Impact Statement framework for spending decisions.

“It would be a shame if a popular Ardern Government creates a precedent for future slipshod conduct,” Partridge said.

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