Unlawful Commands, Bills of Rights, and the Common Law

In Borrowdale v Director General of Health [2020] NZHC 2090, a full bench of the High Court issued a declaration that a series of governmental commands issued during the first 9 days of New Zealand's "lockdown" response to COVID 19 were "not prescribed by law and was therefore contrary to the New Zealand Bill of Rights Act." This declaration formally records the Court’s conclusion that for more than a week New Zealanders’ statutorily guaranteed rights and freedoms were limited without legal basis. In this comment we explain both why this was so, and why the Court was right to recognise that fact by way of a declaration. We also examine the Court’s finding that these limits did not constitute a suspension of either laws or their execution in terms of the Bill of Rights Act 1688. Finally, we suggest that the High Court missed an opportunity to clearly elucidate the constitutional limits on the executive’s power to promulgate apparently coercive directives in the absence of any legal authority. The impending appeal of the High Court’s judgment to the Court of Appeal perhaps provides an opportunity to revisit that last matter.