New Zealand lockdown was unlawful for first nine days, High Court rules

Prime Minister Jacinda Ardern ordered residents to stay at home from March 26
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Imogen Braddick19 August 2020

The first nine days of New Zealand's coronavirus lockdown were unlawful, the High Court has ruled.

Wellington lawyer Andrew Borrowdale had sought a judicial review in relation to three matters relating to the New Zealand government’s initial response to the pandemic.

The judges ruled in his favour on one matter, finding that the requirement for New Zealanders to stay at home for the nine-day period between March 26 and April 3 was justified, but unlawful.

Prime Minister Jacinda Ardern ordered residents to stay at home from March 26 and the court found that legislation allowing authorities to enforce the lockdown measures was not written into law April 3.

While an official order was made to legally ban gatherings and close essential businesses, the court found the government had not placed their request for people to stay at home in their household "bubbles" in law.

Handing down the decision on Wednesday, the judges said: "By various public and widely publicised announcements made between March 26 and April 3, 2020, in response to the Covid-19 public health crisis, members of the executive branch of the New Zealand government stated or implied that, for that nine-day period, subject to limited exceptions, all New Zealanders were required by law to stay at home and in their "bubbles" when there was no such requirement.

"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.

"While there is no question that the requirement was a necessary, reasonable and proportionate response to the Covid-19 crisis at that time, the requirement was not prescribed by law and was therefore contrary to s 5 of the New Zealand Bill of Rights Act."

New Zealand went 102 days without coronavirus spreading in the community
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In a submission to court, director general of health Ashley Bloomfield said: "What we thought could be done in two weeks or two days had to happen now: it was quite literally now or never.

"Hard decisions were required, and we made them, as it was now clear that this was the best – in fact the only – way to protect the health and well-being of New Zealanders, prevent our health system being overwhelmed, and avoid prolonged damage to our economy.

"The absolute priority was to get the lockdown in place and that drove every aspect of what we did over that period: we needed to move, and had no time to sort out the exact details.

"Some things would have to get sorted out later."

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The court’s findings could potentially affect charges handed out for breaching the lockdown during the first nine days.

But the judges said: "There was no specific evidence before the court as to the potential impact of a finding of illegality on charges laid against individuals in the first nine days of lockdown.

"The general evidence suggested, however, that there would be few, if any, prosecutions affected."

New Zealand appears to be gaining control over a coronavirus outbreak in Auckland after just five new community infections were reported on Wednesday amid record levels of testing and contact tracing.

A sixth infection was found in a quarantined traveller who had returned from Qatar.

Prime Minister Jacinda Ardern said 500 more military personnel would be deployed to quarantine hotels as the nation looks to reduce the number of private security guards it employs and tighten its border controls.

Health authorities have still not figured out how the outbreak began after the country went 102 days without the virus spreading in the community. The discovery of the outbreak last week prompted authorities to put the nation's largest city into a two-week lockdown.

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