New Zealand takes pride in decisive action. The Covid-19 pandemic provides the latest in case studies, but is not unique.
After the Christchurch mosque mass murders last year, the world media marveled at how rapidly NZ passed legislation banning semi-automatic weapons. Less reported; debate to consider competing views was vilified by the NZ press as callous. Non-Muslim women officials, including the NZ Prime Minister, wore the hijab. The national press took the initiative and also banned as one to agree what they would not report in relation to the shooting and upcoming trial. If there was dissent to this agreement undertaken to limit the public’s right to know, this was not reported.
Beginning 26 March 2020, NZ Prime Minister Jacinda Ardern announced that a health emergency caused by Covid 19 infections required confinement of all non-essential workers to their homes and the shut down of all but essential businesses. The lockdown was fixed at an initial four weeks. New Zealand had less than 300 cases and no deaths at the time. The Prime Minister announced New Zealand’s mission would be to “eliminate” the virus, an objective which differentiated it from the rest of the world.
On 14 April 2020, two Auckland men filed a writ of Habeas Corpus in the Auckland High Court, claiming the detention was an unlawful restraint on their families’ civil rights. The authority to restrict liberties was challenged, as was the factual basis the government relied upon.
In opposition the government argued no one under the current lockdown order was ‘detained’ as defined by the Habeas Corpus Act 2001. In the alternative it was asserted the order made under s70 of the Health Act 1956 was lawful and unassailable. The Crown also claimed the court lacked jurisdiction to consider the “complex” facts underpinning the order.
The Crown earlier asserted “there is also insufficient opportunity for evidence to be presented to the court to explain the decision making process” – a statement which the applicants said was insulting because any mass order must weigh restrictions on liberty against rights guaranteed by the New Zealand Bill of Rights Act 1990 and New Zealand’s obligations under the International Covenant on Civil and Political Rights.
No evidence was presented showing the Prime Minister, Cabinet or Director of Health weighed the abrogation of rights against the benefits sought to be gained from the restrictions. Equally, no factual support relied upon by the government to justify the unprecedented constraint was disclosed.
Punctuating the homogeneity of New Zealand society, if not its capacity for free speech, both men claimed they needed interim name suppression from the Court due to death threats each had previously received for advocating unpopular causes and the visceral response to this issue. Fear and the unquestioning obedience of New Zealanders were alleged to effectively suppress contrary views.
Tonight, ahead of Monday’s government decision on whether the lockdown ought to be extended, media coverage was dominated by the view New Zealanders do not want to give up the gains made by ending lockdown too soon.
UPDATE: The Prime Minister announced a 5 day extension of the lockdown on 20 April 2020, claiming the virus had been “stopped” but the extension was necessary to “ensure we do not lose the gains achieved”.
The applicants stressed the seeming disconnect of preventing going alone to the beach, hunting, driving in ones car or visiting their holiday home to a relatively insignificant virus spread. New daily cases were trending in the single digits. The government claimed no new sources of the virus were identified.
In contrast to the “level 4 lockdown”, the applicants said “Level 1” required the government to undertake mitigation efforts at the borders – something they submitted was not enforced until two weeks into the lockdown.
The writ was the subject of a two-hour hearing before Justice Mary Peters on Friday, 17 April 2020.
The hearing was politically charged, with the applicants broadly alleging the Prime Minister had impure motives that were self-serving and that she lacked concern about ruining New Zealand’s economy. The applicants resisted the Crown’s suggestion that because the orders were made under the Health Act 1956, the Director of Health ought to be the named respondent and not ‘Jacinda Ardern’.
A kerfuffle arose when Justice Peters suggested to the applicants, “the lawfulness of the notice is all I need to be concerned with.”, with one retorting Adolph Hitler made lawful orders to kill six million Jews.
The New Zealand Herald reporter attending later wrote a brief article stating the applicant compared Ms Ardern to Hitler and spoke nothing of the legal arguments at this hearing where no public were allowed due to the lockdown.
The heated exchange had Peters J push back, “You’re saying to me the grounds (for making the orders) need to persist?”. And the applicant responded, “Of course they do. This is not a warrant of
imprisonment set in stone. The government can remove them at anytime.” Later he added, “You have to be satisfied that the Crown can prove to you that detention is still maintainable on the facts they
have brought before you.”
Crown Counsel Austin Powell submitted the detention ground was “an important one” but one which required precise limits not present in the current order, such as a strict time curfew or being confined to “50 feet of your gate”. He submitted that because the current order “does not get far enough to be considered ‘detention’” this alone is “all that is needed to dispose of the (writ)”.
For good measure the Crown asserted the limitations to civil rights imposed by the lockdown order was a justifiable limit provided by section 5 of the Bill of Rights Act and that what the applicants were actually seeking was ‘judicial review’ of the government’s decision – a remedy the Crown said was not legally available in this case.
The Crown asserted in summary that “protection” of cherished rights lay in the limited duration of the orders.
Both applicants claim to be in the high mortality risk category for Covid-19 due to age and pre-existing medical conditions but submitted the public and they were responsible enough to follow social distancing guidelines they considered sufficient to halt spread of the virus in New Zealand.
