The legal basis for the lockdown may not be as solid as we've been led to believe

Police stop vehicles heading north on state highway one at Warkworth in the lead-up to Easter.
Police stop vehicles heading north on state highway one at Warkworth in the lead-up to Easter. Photo credit: Getty Images.

The seriousness of the restrictions we're living under deserves a much sounder legislative footing, write law professors Andrew Geddis and Claudia Geiringer for The Spinoff.

They should have a clear, certain basis in law and be imposed through a transparent and accountable process.

Let's start with the good stuff. New Zealand's "go hard, go early" lockdown approach looks to be on track to achieve its goal of eliminating Covid-19. And it appears to have overwhelming public support. 

We think that's great. Not only does it represent lives saved, but it's a testament to the basic value of competent governance and Kiwis' capacity for communal sacrifice. Mā pango, mā whero ka oti te mahi.

As with most good things, however, there's a "but" involved. In a just-published post on the UK Constitutional Law Association website, we've raised some questions regarding the lockdown's formal legal basis. Those with a taste for public lawyering can read those views in their entirety. For the more normal among you, our nutshell argument is this. 

The enforcement of the lockdown rules we've all been living under (and are still living under) largely rests on notices issued by the director-general of health, Ashley Bloomfield. Those notices purport to be authorised by the Health Act 1956, s 70. And it's not clear to us that this legislation actually does authorise him to issue the particular notices that he has. In which case, those notices are "ultra vires" and so of no lawful effect - meaning that any actions to enforce those notices also have no legal basis. 

Now, in the normal course of events, a pair of legal academics raising these sorts of technical concerns might not matter all that much to anyone outside of a small niche circle. It hardly needs noting, however, that we do not live in normal times. We've still got a virus to eliminate.

So, lest any casually dishevelled ageing radio shock-jock discovers our post via social media and uses it to breathlessly declare that two law profs claim the lockdown rules can be ignored, we're definitely not saying that. As of right now, the rules set out in the various Health Act notices are presumptively valid. The police have the power to enforce them. If you ignore them, you can be arrested and prosecuted for doing so, with a potential jail sentence to follow.

Furthermore, last week the High Court upheld the lawfulness of one of these Health Act notices. It did so in a fairly brief discussion in response to allegations that Jacinda Ardern had conspired with Sir Stephen Tindall to ruin the economy, while also comparing her to Hitler and the lockdown to the holocaust. That background gives the decision only weak precedential value (as we lawyers say in the trade), but it's still a ruling of the High Court.

All this means that anyone who takes our post as being some sort of permission to flout the lockdown rules is an idiot. And that's even before we get to the moral arguments about the necessity of complying with them because, you know, people might otherwise die.

What, then, is the point of our post? As we note at its conclusion:

"[The lockdown] imposes the most extensive restrictions on New Zealanders' lives seen for at least 70 years; perhaps ever. No matter how 'necessary' these may be, we should expect such restrictions to have a clear, certain basis in law and be imposed through a transparent and accountable process."

We recognise that the government is alert to these sorts of concerns, and has taken some good steps to try and address them. The orders establishing our level three lockdown are well designed and drafted. And the attorney-general's cabinet paper setting out the legal issues involved in moving to level three shows a commendable engagement with the relevant legal challenges. Any claim that the government simply doesn't care about what the law requires of it is neither true nor fair.

However, the fact that there still remains a real doubt as to the overall legality of the lockdown response suggests the underlying law - the Health Act 1956 - is not really fit for present purposes. Simply put, given the severity of the government's lockdown actions, we really shouldn't be able to write the quizzical post that we have. It would be far better if the lockdown rules were based on clear and express parliamentary approval that leaves no doubt at all about their status. 

So, with parliament back at work today after its five-week adjournment, we think it's important the lockdown regime be put on a sounder legislative footing. That matters because the health of our constitutional processes is important, alongside the health of our citizens. It also matters because it lessens the possibility of the lockdown response getting tied up in distracting legal challenges.

And then, when the immediate challenge of Covid-19 is seen off, we need to have a good, hard look at our emergency legislation generally. They say that every general is always prepared to fight the last war. The relevant Health Act provisions were last revised in 2006, when New Zealand faced the prospect of a pandemic with a rather different profile (bird flu). Recent events have shown that those provisions are inapt for meeting the current challenges. We really will need to be thinking about what the next set may be, and begin planning accordingly.

The Spinoff