On March 21st, 2020 New Zealand’s Prime Minister Jacinda Ardern announced four “Alert Levels” in the fight to contain COVID-19.
The concept of “Alert Levels” had no specific legal basis; it denoted escalating restrictions to be imposed by a combination of exhortation and legal orders. Level 2 was implemented that day, involving heightened border controls and a request that persons over 70 years old stay at home. Level 4 came four days later.
The necessary legal instruments were an “epidemic notice” under the Epidemic Preparedness Act 2006 and a “declaration of emergency” under the Civil Defence Emergency Management Act 2002. Each was a pre-requisite for the Director-General of Health (“DGH”) to exercise a suite of existing powers set out in the Health Act 1956 (“HA”). It is those powers that have been the principal legal tools for dealing with COVID-19.
Section s 70(1)(m) of the HA empowers the DGH to “require to be closed” all premises, of any stated kind, within a district. The DGH ordered this in relation to all premises in New Zealand, save private dwellings and “essential businesses.”
“Congregating” in public was banned, save when physical distancing of 2 meters was maintained. Amongst the citizenry there was immediate and high compliance with this regime, despite its vagueness. The official “messaging” suggested it prohibited much more than its text conveyed. Given that the HA also conferred powers of enforcement on police constables, concerns were expressed about how this vagueness might be interpreted by the police.
A second, more detailed, order under the Health Act was promulgated on April 3rd. This took a different tack, being made under Section s 70(1)(f) which allows “persons” (as well as things and places) to be “isolated, quarantined or disinfected.” The new order required “all persons to be isolated or quarantined” and to “remain at their current place of residence except as permitted for essential personal movement.” The last phrase was then more rigorously defined.
High compliance continued. The Government’s official COVID-19 website has had from the beginning a specific link “how to report a breach” and many availed themselves of this to “dob in” apparent offenders. Aspects of the order could be questioned: what distinguished cycling (not prohibited) from swimming (prohibited), for example?
A fresh order on April 27th 2020 signified the downshift to Alert Level 3. Cafes and restaurants could recommence, serving take-out food with physical distancing. Weddings and funerals were allowed, with attendees limited to 10.
Police have generally taken an “educative” role in ensuring compliance; nonetheless they have reported 253 prosecutions for breach of lockdown orders at Levels 3 and nearly 500 prosecutions while at Level 4.
As of May 22nd, new infections have reduced to a trickle – there are often zero new cases per day, after weeks of being in the single digits. The move to Alert Level 2 occurred on May 14th, allowing opening of retail, cafes and restaurants (with social distancing) and limits other gatherings to no more than 10 (save for weddings and funerals at 50). Indications are that this will be further eased soon. The necessary legal regime for Level 2 was put in place by specific COVID-19 legislation enacted by Parliament under urgency on May 13th. There has been controversy over the creation of warrantless powers of entry into private premises where an enforcement officer has reasonable cause to suspect a non-compliant gathering is occurring. The new Act is in force for renewable periods of 90 days, and has a 2 year expiry date.
Meanwhile the legality of the lockdown at Levels 3 and 4 is being vigorously debated in legal academic circles and the media. It has reached the courts: Nottingham v Ardern  NZHC 796. A habeas corpus claim was dismissed – lockdown restrictions were not “detention” for habeas corpus purposes. In obiter dicta the Court observed that even if compliance with lockdown rules was “detention,” it was lawful and not arbitrary. It rejected the argument that the DG’s power in the HA to quarantine “persons” was intended only for specific individuals and not the entire population.
The Court of Appeal affirmed the High Court ruling there was no “detention” (Nottingham v Ardern  NZCA 144). It did not address the legality of the HA orders, saying it was inappropriate to do so on a habeas corpus application (even had there been “detention” in fact). A different plaintiff has since filed judicial review proceedings, contending the Director-General’s orders were all ultra vires the Health Act (making the same “persons” argument, amongst others). That case is proceeding under urgency.
Parliament established an Epidemic Response Select Committee before adjourning at the commencement of the lockdown, chaired by the leader of the Opposition and on which non-Government members form a majority. This was seen as a way of retaining a means of political accountability. In an unprecedented move, the Select Committee has summonsed the Solicitor-General and the Director-General of Health to appear before it, requiring the Solicitor-General to reveal her advice to Government on the legality of the lockdown. This has not yet occurred and the summons is being vigorously contested as constitutionally inappropriate.
The lockdown has interfered with many of the liberty rights in the New Zealand Bill of Rights Act 1990, especially movement and assembly, as well as manifesting religion in groups. The Courts’ decision to delay jury trials after until 31 July also implicates the right to trial without undue delay. But the reasonableness of these restrictions has not been formally questioned in litigation; the legal criticisms to date focus on the technical vires of the orders and the suitability of the legislative regime. As noted, community acceptance and compliance has been high. There was, however, contention over perceptions of delay in reducing to Alert Level 3, and then to Level 2, on the basis that cases of new infection were abating and businesses unduly suffering.
The measures taken to control COVID-19 have been demonstrably successful, but devastating to the economy. International tourism, the country’s largest “export” earner in recent years, has vanished entirely. Considerable effort and funding has gone into the care of the homeless during the lockdown, but the economic consequences have so far been most severe for the low-paid work force in service industries – and particularly affect the indigenous and minority ethnic communities.
A development worthy of note is the emergence, soon after the lockdown began, of “community checkpoints” at which local persons sought to ask drivers about their travel intentions. In particular, some Maori groups operated these checkpoints, pointing to the unhappy history of Maori susceptibility to influenza in the early 20th century and the need to protect their communities from COVID-19. But community checkpoints on public roads could have no legal basis, and motorists were not legally required to stop and co-operate. The practice is therefore controversial. Police, however, said they would work with Maori “to ensure checkpoints are safe and not preventing lawful use of the road.” Checkpoints were, said Police, “not encourage[d]” but if “deemed necessary they will be operated by Police alongside community members.” That pragmatic response is also capable of being interpreted as an application of “the principles of the Treaty of Waitangi” – a measure of de facto local autonomy for Maori iwi (tribes), accommodating a community’s concerns about a life-threatening peril within the parameters of New Zealand law.
Paul Rishworth is a professor of law at the University of Auckland.