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An application for a judicial review of the draconian lockdown laws was filed last night. It seems that someone has taken the original application that was dismissed and applied proper legal processes and thoughts to it, coupled with the revelations we broke on Monday about the Crown Law advice to Police that suggested that the lockdown and enforcement of it was illegal, (at least for the first two weeks).
Ashley Bloomfield might be heading to court to defend the lockdown after a legal challenge alleging he used powers he didn’t have.
Andrew Borrowdale, who formerly drafted laws for the Government at the Parliamentary Counsel Office has filed for a judicial review of Bloomfield’s actions.
Borrowdale told Stuff that the “bringing the application is not in any way intended to impugn Dr Bloomfield personally or to decry his admirable work”.
He’s asked for a court to declare that some of the powers triggering the lockdown were outside the law, and for the court to order those actions be quashed.
The main issue at stake is whether Bloomfield used powers that were in excess of the ones given to him by the Health Act.
The leaked emails from Police which summarised the Crown Law opinion support this being the case. The government may very well lose this one. This guy is not some amateur, he used to draft laws for the government.
Bloomfield used section 70 of the Health Act to issue notices, which set out some of the rules that we know as the level 4 lockdown.
Borrowdale alleges that the notices overstep the powers that are given to Bloomfield by the Health Act.
This is pretty serious stuff. Andrew Geddis commented also:
Otago law professor Andrew Geddis said the case was asking the High Court to make a “determinative ruling on whether the Health Act gave the director-general the power to issue the notices that it did”.
Geddis said police had then arrested and charged people with breaching the order.
“If the health act didn’t give the director-general that power, then all of those people who have been charged with those offences shouldn’t have been,” he said.
Those people could potentially claim damages under the Bill of Rights.
And potentially those businesses that were forced to close may be able to seek damages too.
Bloomfield’s notices also forced all business to close, with rare exceptions. But Borrowdale claimed the powers in the Health Act don’t allow Bloomfield to carte blanche close businesses and public spaces.
He argued that while the Act allows the director-general to close all premises of “any stated kind or description,” Bloomfield exceeded this, closing everything down without specifying the specific kinds of premises like the Act requires.
Working out which businesses could be deemed “essential” was delegated to MBIE officials, which Borrowdale argued was also an overstep, as the Health Act doesn’t give those officials the right to decide which business may open or stay shut.
He made the same point about the order that forbids people from congregating in outdoor places. The order says all such gatherings are banned, but the Health Act, Borrowdale claims, would require Bloomfield to actually state the kinds of gatherings that are banned.
The other issue at play is whether the Health Act actually gives the director-general the power to confine all New Zealanders to their homes.
This is getting really rather messy, but it is vitally important. If a government and its officials ignore the law without consequences then they should be held to account. If a government acts illegally and contravenes its own laws and rides roughshod over our civil rights then they are a dictatorship.
The only real way the government can get out of this is by way of retrospective legislation to paper over the failings they authorised and abetted. This must be opposed with vigour.
The Labour party scoffed at Steven Joyce when he said he thought that the National Party’s use of copyrighted material was “pretty legal”. The leaked Police emails show that Crown Law thought this was way beyond “pretty legal” and actually pretty illegal.
The Prime Minister, Jacinda Ardern, appears to have acted illegally, and then used the crisis and fear that was promulgated from her lectern to abrogate the rule of law and then encourage a snitch culture on top of that. She used the Police to follow up the snitches and established several snitch lines. It had all the hallmarks of Venezuelan colectivos. Those aren’t the actions of a democratically elected leader, those are the actions of a desperate despot.
If we don’t stand up to her government over this then you could say that COVID-19 was simply a dress rehearsal for the revolution.
This is important and I salute those people challenging the government in court, and the honourable officials leaking the Crown Law and Police emails.
New Zealanders meekly conceded power to the government and now some of them are fighting back.
