Lockdown legal appeal gains traction


Auckland – Two people who sued Jacinda Ardern, claiming the coronavirus lockdown was an illegal detention, have lost their case but gained support for their concerns about the legal basis for the lockdown.

The Court of Appeal on Friday decided the men’s circumstances now, in lockdown level 3, did not amount to detention.

But the three judges said the case had raised issues that that could be examined in separate proceedings, perhaps in an urgent hearing.

The two laymen arguing the case had gone about it the wrong way, the court said. Its full reasons are expected next week.

President of the Court of Appeal, Justice Stephen Kos, said extraordinarily complex questions needed answers. He referred to an article academics Andrew Geddis and Claudia Geiringer wrote on The Spinoff and a report of Parliament’s regulations review committee looking at government powers in emergencies, which he said was “hardly approving”.

It comes after Justice Mary Peters found in the High Court last week that neither man was in detentionor, alternatively, any detention was legal.

On Friday the two, who were described as associates, appealed against the decision to the Court of Appeal.

They sued Prime Minister Jacinda Ardern, Director-General of Health Ashley Bloomfield, and director of Civil Defence Emergency Management Sarah Stuart-Black, over Bloomfield’s April 3 lockdown order to prevent the spread of Covid-19, for everyone to stay at home except for essential personal movement.

The pair used an ancient legal process called habeas corpus to challenge what was alleged was an unlawful detention.

What the two men were really trying to do was challenge the reasons for making the lockdown order, and habeas corpus wasn’t the right process to do that, the judge said.

Success would have meant the entire population would have been released from the restrictions.

The Crown said the restrictions were significant but fell well short of detention.

Justice Peters agreed with the Crown.

The freedom to exercise, go to a supermarket, talk to anyone they wished, and to access the internet was quite different from being held in close custody, which was required to meet the definition of detention.

And the coronavirus pandemic was proper legal grounds to exercise emergency powers to restrict movement.

It was alleged one of the men had been serving a sentence of home detention in any event, although the man concerned denied that.

That man had also said the lockdown breached guaranteed human rights, was not justified and was made for extraneous reasons including to increase the chance of Ardern’s re-election.

The judge said a habeas corpus application was not the right way to have those claims decided.

The judge also declined to suppress the names of the men. Both said that publication of their names in the past had led to death threats but the High Court judge if that happened it was a matter for the police and was not grounds for suppressing names in civil proceedings.