The dubious legality of Covid-19 alert level 4

Do the police have the power to order citizens off the beaches and out of public parks during COVID-19 level 4?

Nathan Batts, a senior associate at Haigh Lyon, argues such restrictions on activity, along with the power to lock New Zealand into isolation and quarantine, may not be backed by legislative authority. And the police, he says, cannot enforce the will of ministers unless that will is expressed in law. So, how lawful is our lockdown?

Desperate times may call for desperate measures. But in a parliamentary democracy founded on the rule of law, desperate times do not call for the enforcement of measures not provided for in law.

I am not alone in my concern that the government may have overreached its limitations in communicating and enforcing the parameters of its alert level 4 lockdown.

This is not argument for argument’s sake. During lockdown, doing anything forbidden by the 3 April order issued under s 70 of the Health Act 1956 is a criminal offence carrying a maximum penalty of six months’ imprisonment and a $4,000 fine.

The orders

On the evening of 3 April 2020, the Director- General of Health, Dr Ashley Bloomfield, issued a new s 70 order. This purports to have been issued under s 70(1)(f) although his previous order, on 25 March, was issued under s 70(1)(m). It is worthwhile setting these two sub-sections out in full:

70 Special powers of medical officer of health

(1) For the purpose of preventing the outbreak or spread of any infectious disease, the medical officer of health may … —

(f) require persons, places, buildings, ships, vehicles, aircraft, animals, or things to be isolated, quarantined, or disinfected as he thinks fit;

(m) by order published in a newspaper circulating in the health district or by announcement broadcast by a television channel or radio station that can be received by most households in the health district, do any of the following:

(i) require to be closed, until further order or for a fixed period, all premises within the district (or a stated area of the district) of any stated kind or description;

(ii) forbid people to congregate in outdoor places of amusement or recreation of any stated kind or description (whether public or private) within the district (or a stated area of the district)

It is also important to set out the key text of the two orders we have so far seen from Bloomfield. On 25 March 2020:

1.  I require to be closed, until further notice, all premises within all districts of New Zealand except those listed in the Appendix to this order. 
2.  I forbid people to congregate in outdoor places of amusement or recreation of any kind or description (whether public or private) in all districts of New Zealand until further notice.

    And then on the evening of 3 April 2020:

    1.  I require all persons within all districts of New Zealand to be isolated or quarantined as follows
       a. To remain at their current place of residence, except as permitted for essential personal movement; and 
       b. To maintain physical distancing, except –
           i. From fellow residents; or
           ii. To the extent necessary to access or provide an essential business.

    Clause 2 of the April order provides an extensive definition of what permitted essential personal movement includes.

    Should the police be enforcing ministerial will?

    The 3 April order would appear to have remedied what I consider the most concerning aspect of the government’s approach to enforcement between 25 March and 3 April: the complete lack of clarity in terms of what New Zealand citizens could lawfully do during alert level 4.

    Until then, the relatively straightforward answer to the question “what can I still do while in lockdown?” was: quite a lot, actually. The direction in the 25 March order not to congregate in outdoor places did not prevent swimming, surfing, hunting, tramping or driving an hour or more to a beach – provided one was observing physical distancing.

    Despite this, the Prime Minister, other government representatives and the official COVID-19 website all told us we couldn’t do these sorts of things without any attempt to clarify whether that was a legal obligation.

    Police, who are required to enforce the director-general’s order, with no doubt good intentions, began directing New Zealanders to stop doing the things ministers were saying not to do.

    For the most part, the police appear to have had the support of the media as well as most concerned citizens in doing so. But popular support aside, this was a troubling development because our police are not enforcers of ministerial will unless that will is expressed in law.

    This constitutionally important sentiment was captured in the recent comments of former UK Supreme Court Justice Lord Sumption in respect of developments in Britain that paralleled those here:

    “The tradition of policing in this country is that police are citizens in uniform. They are not members of a disciplined hierarchy operating just at the government’s command. Yet in some parts of the country the police have been trying to stop people from doing things like travelling to take exercise in the open country which are not contrary to the regulations simply because ministers have said that they would prefer us not to. The police have no power to enforce minister’s preferences but only legal regulations which don’t go anywhere near as far as the government’s guidance.”

    Presumably, the government recognised the limitations of the 25 March order in terms of being able to enforce the full extent of the measures deemed necessary to address the spread of COVID-19. Hence the 3 April order.

    The 3 April order: a positive development?

    According to the small print at the end of the 3 April order, nothing within its contents affects any previous order made under s 70. That statement is rather difficult to accept. Instead, the 3 April order appears to be an expansion and clarification of what was initially intended (or hoped) to have been achieved through clause 2 of the 25 March order.

    That assumption takes some support from the admissions by the then Commissioner of Police, Mike Bush, when questioned about the legality of police lockdown enforcement steps by the Epidemic Response Committee on 2 April 2020.

    In particular, the commissioner made it clear to ministers that police had received “excellent advice from Crown Law as to how to interpret the legislation” (which presumably included the 25 March order) and, when pressed on whether police at that time had sufficient enforcement powers available to them, the commissioner indicated there was sufficient legal authority for police to enforce the lockdown restrictions.

    Remember this entire dialogue was at a time when all Bloomfield had prohibited was outdoor congregation. The very next evening, the 3 April order was issued.

    The specificity and clarity of 3 April order was undoubtedly a positive development in terms of addressing the preceding week’s disturbing legal confusion.

    Citizens must know the limits of lawful conduct as precisely as possible and the 3 April order was certainly more precise than its predecessor. However, it was not all positive. I am particularly concerned s 70(1)(f) is not fit for purpose in providing sufficient legislative authority for the nature and extent of the director-general’s 3 April order. I have three concerns: one general and two specific.

    Is this what Parliament intended?

    My first and general concern is that the power to require isolation or quarantining of citizens pursuant to s 70(1)(f) was not intended for general application. I make a couple of observations in this respect.

    Such isolation or quarantining cannot be ordered in respect of “all persons within all districts of New Zealand”, as the 3 April order puts it.

    Section 70(1)(f), along with the surrounding subsections (e), (ea) and (fa), can be read as applying only in respect of specific or specified persons. The wording of sub-section (f) can be contrasted with sub-section (m)(iii) which, instead of applying to “persons”, applies to “people”.

    The broad application of the powers under s 70(1)(m) are further emphasised by the fact that all the available orders under this sub-section are prefaced with the requirement that any such order be published in a newspaper or broadcast on television so it is received by most households to whom the order applies. No such general broadcast is required for an order under s 70(1)(f), again potentially indicating such orders were not intended to be applied nationwide.

    Who’s making the law – Parliament or the police?

    My specific concerns with the 3 April order are about the scope of the permitted essential travel for limited recreational purposes.

    The first is with the requirement that the outdoor place where one wishes to undertake his/her recreational activity must be readily accessible from their residence.

    It is unclear what “readily accessed” actually means in practice. The term does not necessarily impose any time or geographical limit. Its ordinary meaning would likely be ‘easily accessed’ (rather than ‘quickly accessed’), but with cars, roads and no rush-hour traffic it could reasonably be said that most locations across Auckland, for example, are readily accessed.

    The generality of the term leaves New Zealanders wondering what they can do while the police are left with a very wide level of discretion in curtailing citizens’ basic individual freedoms. Police are seemingly free to make an on-the-spot assessment as to whether the location meets this requirement.

    Surprisingly, the Operational Policing Guidelines released publicly on 3 April read as though the definition of ‘readily accessible’ is obvious. These guidelines, intended to inform police officers’ enforcement of the director-general’s orders, provide several examples of different scenarios where questions of what is, and what is not, lawful arise.

    One is where an officer speaks to a runner while on a routine patrol and they state that they drove to the location where they are running, or where a police officer finds people running or cycling “outside of their area”. The guidelines remind officers that “in some small circumstances, a small drive to access a more appropriate area for allowed recreational activity may be appropriate”.

    The example then goes on to explicitly interpret “readily accessible” as precluding “long distance travelling” without any guidance as to when short distance travelling crosses over into long distance. The guidelines further emphasise that people may engage in leisure activity only “within a reasonable distance of their home”. Apparently helpful commentary for the confused police officer, you might think. The problem is that none of this gloss found in the police guidelines is clear on the wording of the 3 April order.

    Don’t do anything dangerous – unless you’re at home

    The second issue with the permitted recreational essential travel restrictions is its specific exclusion of “swimming, water-based activities (for example, surfing or boating), hunting, tramping, or other activities of a kind that expose participants to danger or may require search and rescue services”.

    The concern that such activities could divert emergency services was repeatedly emphasised in government briefings before its enshrinement in the 3 April order.

    In a time of national emergency where first response services are already stretched to their limit, avoiding preventable callouts is an entirely sensible proposition. But it is worth reminding ourselves that for the past month, at least, our emergency services do not appear to have been overly strained.

    Having the nation in lockdown has presumably freed up significant police resources ordinarily busy with routine patrols and enforcement (some of that resource, of course, has been diverted to policing the lockdown). Thankfully, New Zealand’s daily infection rate has remained relatively low and has continued to decline. So, while significant restrictions on individual freedoms may be justified in the interests of not overburdening emergency services, if those services are not actually overburdened then this justification would appear to be absent.

    The risk or possibility of overstretched emergency services in the future – a concern that might apply at any time – does not justify extreme restrictions today.

    The counter argument would be that if the situation rapidly changed, there may not be time to make the necessary amendments fast enough. The response to that, however, is that the past month has shown this government has no qualms with, or difficulties imposing, immediate and far-reaching restrictions on everyday activities.

    There is a risk of unnecessary contact between emergency services personnel and individuals who find themselves in need of an emergency response because they have got themselves into difficulty during a recreational or exercise activity. This is a valid concern and could justify saying the recreational travel restrictions are related to the isolation and quarantine powers provided under s 70(1)(f).

    But I still don’t think such a risk has ever been high enough to justify relying on the isolation/ quarantining powers under s 71(1)(f). It must be minimal in light of New Zealand’s current infection rate combined with the fact that broadly speaking people who are exercising are less likely to be sick.

    And asking whether the risk of possible human-to-human contact for any given scenario is “necessary” is not the right approach. Put another way, I do not think simply identifying certain potential contacts as unnecessary justifies their prohibition in terms of s 70(1)(f) (remembering that s 70 needs to be given a Bill of Rights-consistent interpretation so far as possible – s 6).

    I would rather start from a point that acknowledges fundamental human freedoms of movement and association, and then ask whether the level and extent of proposed restrictions are necessary to stop the spread of COVID-19 (remembering perfection is impossible and that life must go on to some extent). To borrow from the recent comments of a politician, rather than asking what is essential, perhaps the better and more rights-respecting question is: what is safe?

    Another seemingly straightforward response to concerns about the diversion of emergency services is one I heard via Radio Hauraki’s The Matt & Jerry Show recently. Why not simply say to New Zealanders, “if you chose to swim, surf, hunt, fish or tramp during lockdown then you do so at your own risk”? Emergency services would prioritise their COVID-19-related responses and those for non-COVID-19 emergencies could be delayed or even unavailable.

    That would relieve a significant enforcement burden from the police and remove the need for any government order whatsoever. If emergency services are not stretched, then they will respond as usual to callouts.

    It is important to acknowledge that as a result of the declaration of a national state of emergency, police do have additional powers under the Civil Defence Emergency Act 2002 to restrict the everyday conduct of New Zealanders.

    Specifically, s 91 empowers a constable to “direct any person to stop any activity that may cause or substantially contribute to an emergency”.

    On its face, this appears to be a very broad power. However, in my view, these powers are unlikely to give police any additional authority when it comes to enforcing the travel restrictions set out in the 3 April order, assuming physical distancing requirements are being observed.

    As the emergency in question is an infectious disease, unless an officer can be confident that the conduct he/she is observing will in some way cause, or substantially contribute towards, the transmission of COVID-19, the directive powers in s 91 add little to the existing police powers to enforce the director-general’s orders.

    Returning to the wording s 70(1)(f) of the Health Act, it is difficult to understand what the restriction on activities of a kind that expose participants to danger has to do with isolation or quarantining.

    Remember that the 3 April orders were issued pursuant to s 70(1)(f) which authorises requirements to isolate and quarantine only. The same can be said about the concern about the diversion of emergency services. Even if this occurred, what has this got to do with isolation or quarantine?

    Assuming the surfer or swimmer, for example, is observing physical distancing requirements, isn’t their isolation or quarantine preserved regardless of the safety risks associated with the activity (acknowledging a minimal level of risk associated with the possibility of contact with emergency service personnel were an individual to get into (difficulty) – addressed above?

    It is a basic principle of law that secondary legislation (which is what the director-general’s orders are) must be within the scope of the empowering primary legislation. In this case, s 70(1)(f) of the Health Act is the primary legislation. The permitted essential travel restrictions must be authorised by s 70(1)(f).

    Not only do the specific recreational activities the director-general has chosen to identify appear somewhat arbitrary, the catch-all provision extending the prohibition to “other activities of a kind that expose participants to danger” is so broad to be almost unworkable.

    The possibility of an accident requiring search and rescue services is not even a prerequisite for a prohibited activity exposing the participant to danger. It appears that embarking on any activity outside our front gates which has the potential for danger is now potentially unlawful. Again, police have been provided with an enormous amount of discretion to decide what may or may not be an acceptable level of risk. Police are not equipped, and should not be expected, to make such on-the-spot risk assessments and citizens should know what they can and can’t do.

    There is no obvious reason why these restrictions on potentially dangerous activities apply outside our front gates and not within them – particularly if the primary concern is the diversion of emergency services.

    If this is the real issue, then shouldn’t the director-general be issuing (although I certainly hope he does not) directions in terms of what level of risk New Zealanders can take during lockdown whether they are inside or outside their homes?

    According to ACC, more injuries happen in the home than anywhere else (in 2019, more than 1.3 million injuries). Perhaps we should be abandoning those plans to complete forgotten DIY tasks on the house or to keep kids entertained by sending them out to the trampoline or the private swimming pool all afternoon.

    No climbing trees. And don’t even think about getting on that bike for a ride around the block – an activity where risk of injury or death must be considerably higher than many, if not all, of the specific activities identified in the order.

    Ours is a constitutional and justice system to be proud of. So, let us be careful to avoid, under the pressures of a national emergency, any temptation to relax our rigorous adherence to the principle of legality and the rule of law.

    At some point we will emerge from the other side of the COVID-19 pandemic. But the precedents we set now around the legality of official responses to national crises will remain with us indefinitely.

    A move to alert level 3

    On Thursday 16 April, Ardern and Bloomfield revealed during a media briefing what restrictions at Alert Level 3 might look like. The New Zealand Herald, reporting on that briefing, captured the following information:

    “People need to really use their judgment,” Director-General of Health Ashley Bloomfield said. Even though the bubbles were being slightly expanded, Kiwis should try to keep them as limited as possible.

    “Lockdown was easier to enforce as it was black and white and so at alert level 3, that would be harder to police.”

    Ardern said she was relying on New Zealanders to “be responsible”.

    “Kiwis shouldn’t push to the maximum of how far they could go and should stay within their regions.”

    “But you can swim, surf and fish from the shore. Don’t start a new activity that you haven’t done before,” she said.

    Without the benefit of a new draft order from the director-general setting out the actual legal restrictions that will apply under alert level 3, a few brief comments at this stage will suffice.

    First, it is somewhat surprising to learn that the current lockdown restrictions are “black and white”.

    Second, the directive that New Zealanders should not be pushing to the maximum how far they can travel is somewhat concerning. So is Bloomfield’s entreaty to New Zealanders to “really use their judgment” when it comes to complying with relaxed restrictions.

    The government is presumably not suggesting that restrictions on basic day-to-day activities are aspirational. It is the government which should be “really using its judgment” to decide what is and is not justified and communicating that judgment to us by way of clear restrictions, beyond which we can be confident our conduct is lawful.

    The whole point of a legal prohibition is that it draws a line between permissible and impermissible conduct.

    Third, I expect I stand united with most New Zealanders in hoping the direction not to start new activities we have not done before is something that never finds its way into a legal obligation.

    Presumably, we can expect a revised s 70(1)(f) order from Bloomfield. We must hope it is considerably clearer than these initial statements although the Prime Minister’s statement that alert level 3 will be harder to police does not fill one with great hope in this respect.