Coronavirus: Rights lawyer backs Govt over lockdown legality fight

The Government's rejected suggestions its lockdown restrictions have been legally unenforceable - and it has the backing of one of the country's top rights lawyers. 

Leaked copies of advice from Crown Law - the Government's official legal advisors - reportedly said under the directive enabling the lockdown, police wouldn't have powers to enforce rules against non-essential travel or break up gatherings at people's homes.

Some of the holes may have been plugged when Director-General of Health Ashley Bloomfield issued a second directive 10 days into the level 4 lockdown, but there have also been suggestions these too weren't enforceable.

In response, Attorney-General David Parker said on Thursday the leaked documents were only drafts, and not the formal advice the Government received from Crown Law - which he claimed said police did have the necessary powers to enforce the lockdown, aimed at preventing the spread of the virus behind COVID-19.

"I would reiterate what the Prime Minister has said: There has been no gap in the legal underpinning or in the enforcement powers under the notices that have been issued under level 3 and level 4", Parker said.

"All notices that have been issued are in the public domain, as is the legislation upon which they are based."

He has refused to release the advice or comment further on it, RNZ reported. 

University of Otago law professor Andrew Geddis says police knew they were on shaky legal ground until the second directive was made, but acted appropriately.

"It was pretty clear when the lockdown first was announced that the Health Act notice on which it was based didn't actually cover all the sorts of activities that New Zealanders would be told that they couldn't undertake. So the Crown Law advice, when I saw it, basically confirmed what I think a lot of people in the legal world assumed the case would be," he told Newshub.

"It wasn't until later in the lockdown - after the second health notice was issued - that arrests really began being made. Those arrests were for failing to comply with the second Health Act notice, which the Health Act allows for. I think it would be stretching it to say that the police were arresting people without a lawful basis, simply because there was more than one legal basis for action throughout the lockdown."

David Parker and Jacinda Ardern.
David Parker and Jacinda Ardern. Photo credit: Getty

The Epidemic Response Committee, chaired by National Party leader Simon Bridges, is summonsing the Solicitor-General, Dr Bloomfield and the Police Commissioner in order to get the documents. Bridges told RNZ it is "inexplicable that the advice hasn't been made public".

"The people of New Zealand have given up their freedoms for this lockdown. We all deserve to know what the legal basis was for that."

Geddis says there are good reasons for not releasing the advice.

"Privilege allows the Crown (as is the case with any client) to refuse to divulge the advice's content, and it exists for a very good reason," he wrote in a piece for The Spinoff.

"Privilege permits legal advisers to give their full and frank views on the legal risks and challenges involved in any particular policy decision. Receiving that full and frank advice then helps the government to make the best decision on the matter at hand."

Without that privilege and fearing public scrutiny, Geddis said advisors might hold back and this would "be bad for deciding what is the best thing to do".

Geddis told Newshub there are valid questions to be asked around whether the notices issued by Dr Bloomfield were "consistent with the powers that the Health Act contained", but there's little to be concerned about.

"There are judicial review cases going on and the courts are going to look at that. But the police, as an institution, I think are to be credited for being very aware that their powers were limited to some extent.

"I wouldn't say this was an example of some tyranny running wild or anything; I would say this is actually an example of the system working - the institutions being concerned to have a legal basis for action, and where there are questions about whether that legal basis were proper, those are being examined through the courts as they should be. 

"It sounds like a big thing - 'oh my god, the police didn't have a proper legal basis to arrest people' - well it sounds like they didn't arrest people where they didn't have a legal basis. And if there are questions about that, it's being dealt with through the courts, as it should." 

New legislation to make the level 2 alert restrictions legal will be introduced to Parliament next week. Parker and Prime Minister Jacinda Ardern have both said there won't be any need to pass a retroactive law to make the level 3 and 4 restrictions legal. 

"As we... restore freedoms, we expect the vast majority of New Zealanders will continue to comply voluntarily with the necessary measures at all alert Levels, but as we have consistently said, we will enforce the rules where there is serious non-compliance," Parker told RNZ.

"I have been consistently advised that there were no gaps in our enforcement powers, what we have acknowledged is that actually some of the legislation that we have had to utilise actually probably could be more fit for purpose going forward," said Ardern.

The lockdown's goal - to prevent a widespread outbreak of COVID-19 and the mass casualties that would bring - has been successful to date. The number of new cases reported each day has averaged in the single digits for over two weeks, and the Government's response - and the New Zealand public's willingness to heed its advice - has been lauded worldwide.