Lockdown Bubbles through Layers of Law, Discretion and Nudges – New Zealand

I. Early Days of the Shutdown

New Zealand’s governmental response to Covid-19 has been, so far, dramatic and legally curious. As a South Pacific island nation, Covid-19 was late to infiltrate New Zealand, allowing the government time to shape its response in the light of experiences elsewhere. At the first sign of community transmission, the government moved to lockdown the country – shutting the border, keeping people in their household ‘bubbles’ and closing businesses other than those deemed essential. To effect the lockdown, the government relied on some ordinary legal powers and a handful of reserve emergency powers, supplemented by strong messaging from a charismatic prime minister. While providing a stopgap solution for the sudden move, the current legal framework is bit soft and fragile in places. It seems likely the government will move to sharpen and fortify the legal basis for the lockdown and put in place a more bespoke and enduring solution. [See Postscript for developments]

COVID-19: A Quickly Escalating Response

The early phases of the response involved a number of specific travel restrictions, self-isolation for arrivals and cancellation of a number of public events. The borders were then soon closed, except for returning citizens and permanent residents. Importantly, the government then rolled out a framework of alert levels – non-statutory guidance on the range of escalating measures that could be expected for different risk levels (prepare, reduce, restrict or eliminate). In a rare direct address to the nation, the Prime Minister, Jacinda Ardern, announced the framework on a Saturday, placing the country at level 2 (eg gatherings banned; high risk over 70s told to self-isolate; people asked to avoid non-essential travel). At that point there were just over 50 diagnosed cases of Covid-19, all then related to international travel. But, on the following Monday, following identification of the first instance of community transmission, the Prime Minister raised the risk level to level 3 (eg schools, universities and public facilities closed; businesses asked to work from home). She also announced that a level 4 lockdown would apply within 48 hrs, as from midnight on 25 March 2020. People were instructed to say at home in their household bubble, other than for matters essential. New Zealand remains at that level, in an effort to contain and eliminate the virus.

The Lockdown: Interwoven Layers of Law, Discretion and Nudges

The level 4 lockdown was a sudden and emphatic move. And it was effected by interwoven layers of various ordinary and emergency powers.

An epidemic notice was issued under the Epidemic Preparedness Act 2006. This declaration of an epidemic has a number of consequences: (a) medical officers of health and constables are empowered to use various special emergency powers; (b) ministers can activate (and have activated) a number of specific dormant emergency provisions dotted throughout social security, immigration, penal and parole legislation; and (c) ministers may issue notices to ‘modify’ (viz relax) requirements or restrictions in legislation (a Henry VIII power so far only invoked once, perhaps understandably given a tradition wary of their use, to make a minor modification to a social security application process).

A state of national emergency under the Civil Defence Emergency Management Act 2002 has been declared. This allows the civil defence director to coordinate the national response, as well as allowing her to deploy various emergency direction and requisition powers (as yet barely used). This state of emergency condition needs to be renewed every 7 days but has been renewed once already and is expected to be rolled over repeatedly for a significant period.

The heart of the lockdown itself was effected by an old-fashioned power vested in medical officers of health under the public health legislation: a broad power to order various actions to combat infectious diseases. The director-general of health, acting as the medical officer of health for all regions in the country, issued an order under section 70(1)(m) of the Health Act 1956 closing premises and prohibiting congregation. But the order contained express exceptions. Dwelling-houses, premises used for essential businesses (as per an evolving list specified on a department’s website) and key civic institutions like the courts are excluded. So, too, was the ban on congregation glossed – only congregation without ‘physical distancing’ (as per health advice, being at least 2 metres away or being within 2 metres for less than 15 minutes) is prohibited. Thus, while promulgating wide-ranging bans, the order did not purport to impose the full lockdown; the hard legal rules, enforceable by arrest and prosecution, only provided one layer of the level 4 lockdown.

In addition to enforcing the section 70 order, the police also possess independent constabulary powers under the Health Act (s 71A) and Civil Defence Emergency Management Act (s 91) to assist, request and direct. Importantly, constables can direct people to ‘stop any activity that may cause or substantially contribute to an emergency’ or ‘request any person … to take any action to prevent or limit the extent of the emergency’ (the former, at least, being enforceable by arrest and prosecution). The effect of these powers is to charge the front-line constabulary with significant official discretion to police the level 4 lockdown, by directing and encouraging individuals and groups to desist from doing things in public places that may increase the virus’ risk of transmission. How this has played out in practice is unclear. It is suspected that constables are using the (non-statutory) guidance from the Prime Minister and other officials about acceptable activities to colour this discretion, at least when using their request power and, perhaps, their direction power. However, it is understood that guidance to constables has counselled against use of the direction power unless there is a heightened and direct risk. And efforts to get clarity about the police operational instructions and practice have so far failed.

The final layer in the lockdown regime – and perhaps the most important one – is a non-legal one. Beyond the few hard rules and front-line constabulary discretionary power, much of the force of the lockdown has come from the Prime Minister’s strong signals, guidance and nudges. In other words, the Prime Minister, Jacinda Ardern, has been repeatedly urging the public to do the right thing and to stay in their bubbles, reinforced by key emergency officials. In doing so, she has generated strong social norms of behaviour, reverberating throughout the community – on official channels such as the government Covid-19 website, a WhatsApp channel, television and radio broadcasts and informal interactions between folk in the community. As a measure of the force of expectation amongst the community, when a police webform allowing concerns about people breaching the lockdown was launched, over 4,000 complaints were lodged within the first 24 hours.

These interwoven layers seem (just) adequate to effect the lockdown but, as explained below, are not without some difficulties and challenges.

Civic Institutions: Swift and Pragmatic Reconfiguration

At the same time the country was transitioning to level 4 lockdown, Parliament moved quickly to pass some response measures and to preserve its ability to support and scrutinise the executive’s response. Just before the lockdown, parliamentarians moved quickly to pass – unanimously, in only a couple of hours – a number of immediate measures: (a) a business and welfare support package of $12B; (b) an imprest supply bill authorising additional government spending of $52B; and (c) a handful of modest amendments to other legislation (tenancy, local government, education and official information regimes) in order to address some pressing issues caused by Covid-19 disruption. It also introduced some sessional orders, mainly providing for necessary electronic administration and liberalising the proxy voting rule in order to reduce the number of members of Parliament needed in the House when sitting. Then the House of Representatives adjourned for just over a month.

Select committees and other parliamentary processes continue. Most significantly, an Epidemic Response committee was established to scrutinise the government’s action in lieu of the House’s usual accountability mechanisms. The select committee meets by Zoom (broadcast publicly), is chaired by the leader of the opposition and has an opposition majority amongst its 11 members. It is charged with plenary powers to inquire into the government’s response to Covid-19; it has already questioned key ministers and officials, as well as hearing from experts.  While just kicking off its business, this committee looks to be a pragmatic and constructive way to ensure accountability in the absence of the House sitting. One concern that remains, though, is the inability of the committee to trigger the disallowance of delegated legislation and instruments with significant legislative effect – without the House being recalled by the Speaker on advice of the Prime Minister – should that prove necessary.

The judiciary continues to operate, with the Chief Justice reiterating their essential role in upholding the rule of law, fair trial rights and civil liberties. Remote hearings are now the predominate means of hearing, although in-person attendance may still be required in some cases. During the level 4 lockdown, only priority proceedings (those affecting the liberty, personal safety or wellbeing of individuals, along with other time-critical proceedings) are being heard.

Issues, Challenges and Possible Future Developments

New Zealand is in the early days of its response – culminating in the recent swift move to lockdown the country in their household bubbles, save for essential business and chores. But the lockdown and use of layers of law, discretion and nudges raises a number of issues.

First, there is an inevitable question about the legality and legitimacy of a lockdown that curtails the liberty and freedoms of the public, especially given the various rights protected by the New Zealand Bill of Rights Act 1990 (a statutory human rights instrument without superior constitutional status). To date, this question only has limited traction in public discourse – concerns are more about the mode of implementation rather than the lockdown per se. In principle, the dramatic lockdown is probably justifiable – even though an extreme curtailment of civil liberties – on the basis that it is a proportionate response to a grave risk. That calculus depends, of course, on a complex assessment of factual matters, risk assessment, viable alternatives and so forth – but it is sobering that the Prime Minister announced that modelling of experts suggested tens of thousands of New Zealanders could die if the virus was not contained.

Secondly, the legal and other measures to instigate the lockdown remain a work-in-progress. The interwoven layers seem (just) adequate to effect the lockdown but are beset by tensions and softness that could be exposed the longer the lockdown continues. The paucity of formally-mandated rules and heavy reliance on constabulary discretion raises particular and powerful rule of law concerns. These concerns are especially acute in the light of patterns of racial bias in policing. However, to date, the police seem not to be adopting a wholesale, coercive approach – instead favouring education and encouragement. So far, only a handful of people have been arrested for breaching lockdown rules. But that might be, too, a symptom of the rules–guidance–enforcement connections being a bit flimsy.

Thirdly, the signals and propaganda coming from the Prime Minister and key officials have been instrumental in the lockdown but are not without problems. Prime Minister Ardern is renowned for her leadership, communication and compassion in times of crisis. Her repeated pleas – ‘be kind, stay home, save lives’ – resonate amongst the public and help with the success of the lockdown. However, there is real risk that her messages (including quite specific pronouncements about behaviour and activities that acceptable or not) are perceived by both the public and constables as amounting to ‘rules’ – and rules capable of being legally enforced. This gap between moral-suasion rules and coercive rules is troubling. There is no difficulty, on one view, with the authority of a government agent to give guidance and advice. But it is deeply concerning if that guidance crystallises as de facto legal requirements, enforced by others as rules. This looseness may also compromise the requirement in the Bill of Rights Act that limits on rights be ‘prescribed by law’, perhaps affecting the justifiability of the lockdown in human rights terms.

Fourthly, there are potential fishhooks in the specification of ‘essential business’ that may continue to operate. As mentioned, this class of businesses is specified on a department website and continues to evolve in the light of development (and contestation). While this key definitional gateway has yet to be litigated, there are obvious challenges arising from its rough-and-ready and evolving character. A simple permitting regime, with in-built right of review, would seem to be much more durable, if a discretionary and dynamic approach is desired.

Finally, there is a real issue about whether the suite of emergency legislation is fit-for-purpose for an epidemic of this kind. While the civil defence legislation is designed to address ‘all hazards’, much of its character contemplates emergencies of a natural disaster kind, such as earthquakes and floods regularly encountered in New Zealand. So too the health legislation which was drafted in an earlier era for infectious diseases with profiles different to Covid-19. Thus, it seems likely the current legal response is a stopgap only – it is expected that the government will soon move to sharpen the rules and fortify the basis for the lockdown. And that would be welcomed. This crisis demands a legal regime that squarely addresses the types of risk in play and fairly navigates the rights and liberties engaged by a lockdown. The immediate question is whether the next phase of legal response is best developed by the executive through emergency powers, such as through regulations or Henry VIII modifications of primary legislation, or whether it might be better for the House of Representatives is recalled to allow for the passing of a bespoke legal regime to supplement or replace the current emergency powers. There are obvious advantages in adopting the latter, if any new regime is to have the legitimacy – and perhaps durability – it needs. 

Conclusion

The interwoven layers forming the basis for the lockdown and heavy reliance on pleas for people to do the right thing says something about the legal and civic culture in New Zealand. Legal minimalism and pragmatism, building on familiar mechanisms. High trust in those governing, complemented by a strong belief by those governors in the need for institutional legitimacy and democratic accountability. And a tight-knit sense of community and solidarity by the citizenry.
DK (3 April 2020)

Postscript

After 10 days in level 4 lockdown, the director-general of health moved to fortify the rules by issuing an additional section 70 order. The order requires all people to isolate themselves in their household bubbles, as well as prescribing permissible essential movement (for essential business, limited recreation, shared bubble arrangements, etc). Thus, this new order addresses many of the concerns discussed above and allows constables to directly enforce these sharpened rules; the newly-appointed police commissioner also released updated police operational instructions.
DK (5 April 2020)

II. Enhanced Lockdown Rules and Transition from Alert Level 4 to 3

New Zealand’s lockdown took a gear shift in early April when, as explained in the previous postscript, the director-general of health issued an additional section 70 order formally isolating all people to their household bubbles, subject to prescribed exceptions. This closed the gap between the government messages (now strong urging, rather than soft nudges) to stay at home and the hard legal rules directly enforceable by constables. A high degree of compliance characterised the balance of time in level 4 lockdown, with only a few grumbles about the nature of some of the restrictions and how they were expressed. Good progress in combatting the spread of Covid-19 led to a move to alert level 3 in late April, with slightly relaxed isolation rules.

In the background, however, lurked some doubt about the legal foundation for the lockdown rules. Specifically, there was a debate – largely in legal circles – about whether, as a matter of authorisation, the power of medical officers of health to manage infectious diseases allowed the director-general of health to issue comprehensive isolation orders applying to the public generally. The issue has been nodded to in legal challenges and other oversight of the orders but is yet to be definitively resolved.

Isolation and Quarantine of all Persons under Section 70(1)(f)  

The director-general of health, acting again as medical officer of health for all districts within New Zealand, issued an additional order on 3 April 2020. The key restriction required ‘all persons within all regions of New Zealand to … to remain at their current home or place of residence, except as permitted for essential personal movement’. Essential personal movement, extensively defined in the order, prescribed exceptions for accessing essential business, limited recreation, shared bubble arrangements and the like. Additional orders were also issued to beef up quarantine and medication supervision of new arrivals.

The power relied on to isolate and quarantine all members of the public was section 70(1)(f) of the Health Act 1956. While an epidemic notice or state of emergency is in force or when otherwise authorised, a medical officer of health may ‘require persons, places, buildings, ships, vehicles, aircraft, animals, or things to be isolated, quarantined, or disinfected as he thinks fit’ for the purpose of preventing the outbreak or spread of any infectious disease. The power is a long-standing one (Health Act 1920, s 76(1)(f); Public Health Act 1900, s 19(6)).

The key issue – explained well by colleagues, Profs Geddis and Geiringer –  is whether the power is a general one, which can be applied to: (a) all persons at large; and (b) regardless of whether they are infected or have been exposed. Some suggest it should only be used in a targeted manner in relation to specific (and infected or exposed) individuals. On its face, the text would seem broad enough to support application to all persons generally. However, the scheme and context suggest a narrower interpretation. An especially strong indication is the contradistinction with the power in s 70(1)(m) which allows closure of premises but only through a published public notice. Reading s 70(1)(f) generously vests extremely broad coercive power in medical officers of health, akin to a legislative power. The severe impact on civil liberties, especially the freedom of movement protecting in the NZ Bill of Rights Act 1990, ordinarily would suggest a conservative reading if possible. Yet, the role of this power in a type of emergency legislation might suggest a more liberal interpretation in order to ensure effective measures against the spread of infectious diseases. The context too might inevitably counsel some degree of reluctance to unduly upset the director-general’s regime, which relies on this power as its centrepoint.

So far, the issue has raised some eyebrows amongst parliamentarians and judges, but there has not yet been a squarely targeted challenge allowing its resolution. First, the important Regulations Review committee raised concerns with the director-general about the validity of the orders and other matters. The committee is charged with general oversight of secondary legislation and instruments for constitutional propriety and administrative prudence and can trigger disallowance processes in the House of Representatives. Secondly, the Epidemic Response committee has pressed ministers, especially the attorney-general and police commissioner, about the point, as well as seeking (so far unsuccessfully) the solicitor-general’s advice.

Secondly, the issue arose in a couple of recent cases (A v Ardern and B v Ardern [2020] NZHC 796; [2020] NZHC 814; CA218/2020 (brief oral decision)), but the cases were doomed from the outset due to the way the challenges were mounted. Two litigants-in-person applied for habeas corpus under the Habeas Corpus Act 2001 to test the lawfulness of their detention. They argued the director-general’s orders limited their liberties so severely they were detained (even though one applicant was already serving a sentence of home detention for unrelated, serious offending). And they mounted a wide-ranging and unfocused attack on the validity of the orders, occasionally waving their hands at the s 70(1)(f) issue. Broadly, they doubted the need for the orders (‘it’s not a pandemic; it’s a panic-demic’) and suggested the lockdown was a conspiracy between the prime minister and well-known business leader to ruin the nation’s economy. The High Court and the Court of Appeal dismissed their applications and appeals. Both courts ruled the applicants were not subject to detention (putting to one side, one applicant’s penal sentence to home detention), given they had freedom to exercise outside in parks, to undertake trips to the supermarket and so forth. The high court judge, Peters J, also accepted, in an obiter observation, the lawfulness of the orders, untroubled by its use generally. However, during oral argument, the Court of Appeal judges showed more discomfort about s 70(1)(f) being used as the legal foundation for the lockdown. Regardless, both courts signalled that the more appropriate course was for any questions of legality to be tested through an application for judicial review, expedited as necessary. As yet, none has been filed.

It is surprising, in the light the softness of s 70(1)(f) and its very real contestability, that the government did not move quickly to remove any doubt by using an alternative mechanism or legislative amendment once the House returned.

Alert Level 3, Takeaway Food and Enhanced Rules

The initial period of 4 weeks of level 4 lockdown was extended by a further 5 days before the country transitioned to alert level 3. The director-general of health issued new s 70 orders, the Health Act (COVID-19 Alert Level 3) Order 2020, with slightly relaxed restrictions. While people are still subject to general isolation, the exceptions for essential personal movement are enlarged and the businesses allowed to operate are extended from those providing the necessaries of life to those that can implement infection control measures capable of minimising the risk of movement, contact and congregation of people. Notably, the new order was this time published as a legislative instrument on the usual legislation website and had obviously been cleaned up and styled by a team of parliamentary counsel and other government lawyers. The drafting of the new – and much more complicated – rules should be commended.

One worry, however, is a return to a gap between the way in which the hard rules are drafted and a suite of nudges, urges and guidance from the prime minister and the government. For example, level 3 rules allow the combining of household bubbles in some instances, allowed by the rules for unrestricted numbers of combinations, but official advice has been that an extended bubble arrangement should only combine, at most, two bubbles. The attorney-general acknowledged, in a publicly released Cabinet paper, that aspects of the level 3 regime relied on voluntary action on the part of the public and cautioned against the restrictions being over-egged in government messaging. Regrettably, that caution has not always been followed.

Civic Institutions: The House of Representatives Returns and the Courts Battle

The move to alert level 3 allowed the return of the House of Representatives. Sessional orders agreed to before the lockdown made changes to procedures to allow the House to operate with minimal members and with some electronic backroom logistics. About 25 or so MPs have returned for sittings of the House, subject to appropriate physical distancing, proceedings have been limited to oral questions, necessary financial debates and the passage of legislation related to the emergency response. Some additional business relief measures were passed under urgency (awkwardly, the wrong version of the bill was tabled in error and passed, ratifying an additional loan guarantee scheme yet to be approved by Cabinet).

The Epidemic Response committee – New Zealand’s ‘Parliament in miniature’ – sat three days a week during alert level 4 and continues to sit under alert level 3. Its hearings, hosted on Zoom, were widely followed in the early stages and provided a good means for ministers and officials to be tested on the government’s response. With the return of usual accountability processes in the House, the committee pivoted to hearing from witnesses from the community about the effect of the lockdown and needs for recovery. Some other committees continued their work remotely, especially public hearings on some bills the government wished to progress.

The business of the courts was severely limited under alert level 4 but the courts did their best to battle with technology to provide hearings via audio visual links and occasional in-person hearings. Alert level 3 has seen the type of proceedings going ahead enlarge, although the prohibition on jury trials remains in place until the end of July at least. The effect of the lockdown on prisoners continues to be of some concern; at one point, the solicitor-general suggested prosecutors might oppose bail applications for those with high Covid-19 risk status, although that stance was subsequently softened. 

Conclusion

New Zealand’s lockdown regime – its layers of law, discretion and nudges – has been, to use a rugby analogy, a rolling maul. It has evolved, and been strengthened and sharpened, as the country was locked down in their household bubbles. Much of that evolution has been about meeting rule-of-law expectations about clarity, certainty, accessibility and congruence in application. Strong messaging from the Prime Minister and others, calling on New Zealanders to do the right thing, continues to be the foundation stone of the government’s response and has proved pretty effective. But law, especially the minutiae of rules and enforcement, has taken on increased importance as constables have been more vigorous in policing the lockdown. Lurking doubts about whether the key Health Act power is strong enough to support the lockdown rules, though, risks disrupting the various layers in play. Public confidence and compliance could well be compromised if a court definitively ruled that the power is too soft to sustain the lockdown regime.
DK (3 May 2020)