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Legality of New Zealand's Covid-19 lockdown heard in Court of Appeal

An argument against the legality of the Covid-19 lockdown put in place to stop the spread of the virus last year is being heard in the Court of Appeal.

An Auckland street during Level 3 lockdown. Source: Getty

New Zealanders were ordered into isolation by the Government on 25 March last year, after a state of national emergency was declared, and four days before the country reported its first Covid-19 related death.

The lockdown continued until Alert Level 2 of the Covid-19 response began on the evening of 13 May, after the national emergency expired.

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A lawyer acting for Dr Andrew Borrowdale successfully argued in the High Court in Wellington last year that one aspect of the lockdown was unlawful, but now Borrowdale is appealing other claims that failed.

James Farmer QC opened the hearing today, arguing on behalf of Borrowdale that Director-General of Health Dr Ashley Bloomfield did not have the legal authority to order a national lockdown, despite the requirement being necessary to stop the spread of the virus.

Farmer claims that section 70 of the Health Act, which covers "special powers of the medical officer of health" under infectious and notifiable diseases, was not adequate or fit for purpose for the scope of ordering a national lockdown, and that instead a new law should have been passed by Parliament immediately to make this order.

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Farmer said the error was not corrected until the Covid-19 Public Health Response Act was passed in May last year, pointing out that the legislation was then amended in August for consideration of the New Zealand Bill of Rights to be applied when making orders.

Farmer argued New Zealand’s Parliament model allows legislation to be passed swiftly, giving the example of the pace with which a change to the Education Act that allowed the Government to order education providers to open and close was introduced and passed in Parliament in response to Covid-19.

Last year, the High Court stated the lockdown measure was a “necessary, reasonable and proportionate response” to the pandemic at the time, but was not lawful for the first nine days and was contrary to the New Zealand Bill of Rights Act.

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The High Court said the lockdown became legal on April 3, last year when an order under section 70(1)(f) of the Health Act was made applying to all New Zealanders with specific isolation and quarantine requirements, but Farmer refutes this claiming it was not the appropriate law for issuing a lockdown.

The Crown and New Zealand Law Society, acting as an independent voice to help the Court with its judgement, will also give arguments.