September 6, 2020

The importance of Borrowdale

In a column published on Capital Letter, Mai Chen, Chair of the Superdiversity Institute for Law, Policy and Business, managing partner of Chen Palmer, Adjunct Professor at The University of Auckland Law School and a BNZ board director, explains the importance of the Borrowdale decision. Read the column here and below.

The importance of Borrowdale
Borrowdale v Director-General of Health [2020] NZHC 2090 is much more than an orthodox vires challenge and just a question of legality. It underscores the independence of the courts (and thus the separation of powers) to uphold the rule of law without fear or favour. There are countries where such a challenge by an individual against the exercise of government powers may have seen Mr Borrowdale put in prison, or surveilled.
The case demonstrates that there are checks in place to prevent abuse of executive power such that even a global pandemic outbreak cannot unduly limit the individual rights of citizens unless expressly prescribed by the law.
The reasons why the judgment has broader relevance in the future are crystallised in the High Court’s explanation of why it decided to grant a declaration. The Court considered but ultimately rejected the Crown’s argument that the questions of law concerned technical errors which would not have made any difference to the substantive outcome and that the matters they relate to have been overtaken by legislation to give effect to current restrictions and authorise possible future restrictions.
The Court determined that “weighty rule of law considerations” rendered a declaration appropriate, when one of the three causes of action was upheld. In making the following declaration, the court implicitly affirmed that the declaration would achieve a useful purpose:
By various public and widely publicised announcements made between 26 March and 3 April 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 the New Zealand Bill of Rights Act.
Conflicting rights
The case concerned the conflict between the right to health and other individual rights, such as the freedom of assembly, association and movement (paragraphs 95 and 96 of the judgment). The statutory interpretation exercise was particularly interesting given the overall statutory context. This included the international legal context including the World Health Organisation (WHO) Constitution, the International Health Regulations (1969), the United Nations Covenants on Economic, Social and Cultural Rights, and on Civil and Political Rights. The domestic statutory context included the Health Act 1956, the Civil Defence Emergency Management Act 2002, the Epidemic Preparedness Act 2006 and the New Zealand Bill of Rights Act 1990 (NZBORA).
The judgment (paragraph 104) underscores that all legislation needs to be reviewed regularly and modernised as necessary to stay fit for purpose:
…s 6 of the Interpretation Act is relevant here, too. The idea that “an enactment applies to circumstances as they arise”  (or that the law “shall be considered as always speaking”) assumes particular significance when the statutory provisions in question date back over 100 years and yet are called upon to respond to entirely modern events. Here, those events involved the emergence of a novel, highly contagious disease, in a time when the speed and ubiquity of both domestic and international travel is unimaginably greater than it was in 1900. We consider that the s 6 “ambulatory” approach is both available and suitable to assist us in resolving any issues when applying the relevant paragraphs of s 70 in a 21st century context.
The Court repeatedly stressed the importance of the purpose for which the Government (Prime Minister, Ministers and Director-General of Health) acted. The first paragraph of the judgment ends with “The decisions taken by the New Zealand government in March this year to “go hard and to go early” were the right ones.” Paragraph 281 also stated:
We have no doubt that Dr Bloomfield captured the position precisely when he said: “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.”
But the Court also said (in paragraph 2)
“Even in times of emergency, however, and even when the merits of the Government response are not widely contested, the rule of law matters.”
The Court talked of powers exercisable only in an emergency of a kind that, as a matter of international law, justifies restrictions on individual rights. Paragraph 95 states “what limitations on those rights can be justified in light of the public health interests in play – that is what s 5 [NZBORA] requires to be asked and demands to be answered.” Paragraph 103 states “ the internal restrictions and temporal limits on the exercise of the powers give further assurance that it is safe to adopt such a construction, by limiting the potential for abuse.”
Ends do not justify means

The case therefore underscores the importance of the rule of law, even in the context of a rapidly developing national public health emergency.
Even though the Court were of the view that the lockdown was justified and the Director-General of Health could have lawfully imposed limits at the time, simply by issuing an order, the Director-General did not do so.
The rule of law was not observed. The ends do not justify the means. The fact that there may have been good reason for the Government’s actions in the first nine days does not lawfully excuse the failure to follow the rule of law. As the Court observed at paragraph 291 “Although the state of crisis during those first nine days goes some way to explaining what happened, it is equally so that in times of emergency the courts’ constitutional role in keeping a weather eye on the rule of law assumes particular importance”.
The reminder for the future is that executive government and officials cannot step outside the law as prescribed by Parliament no matter how dire the situation appears, and that the courts have a constitutional responsibility to call that out where they see it has happened. Having just come out of level 3 lockdown again in Auckland, the issues raised by this case remain relevant.
Mai Chen is Managing Partner of public and employment law specialists Chen Palmer, and Adjunct Professor, University of Auckland Law School