The Borrowdale Case: The Key to the First Lockdown

By Sam Meyerhoff

For those of you not currently awaking from a year-long coma, the memory of New Zealand’s first COVID-19 lockdown will likely be all too fresh. This is certainly the case for the good men and women of the New Zealand Judiciary as a case recently came out of the High Court finding that the lockdown orders from 26 March to 3 April  were unjustified breaches of the New Zealand Bill of Rights Act. The explanation for this is rather simple, the Director-General of Health only issued a formal order to lockdown the country after this period had elapsed. However, the reasoning in this case, brought by Andrew Borrowdale is actually fairly nuanced and brings to mind issues with the rule of law, but also an often-undermentioned branch of legal philosophy: legal realism.

So what is legal realism and why is it relevant in this case? Surprisingly, it’s not a judge who dislikes Salvadore Dalí, but is in fact the position that law and what is “legal” is no more or less than what is enforced, either by the courts or other relevant bodies. It disagrees with contrary positions that argue the law is whatever is passed in the proper channels, or is inherently moral, and instead argues that the law is merely a means to an end for society. Hence, coming up with over-arching justifications for the law is a fruitless endeavor. This admittedly bleak perspective has caused some to label them as nihilists.

In this case however, we can see an inherent clash as the legal realist tendencies of both parties arguably pulled them in opposite directions. The Crown submitted the strained argument that the first nine days of lockdown were merely guidelines not legal orders, and even if they were, the breach of people’s rights only occurred when the rules were enforced by police, not when the rules were laid down [171] [196]. The court seemed very skeptical of this argument,  analysing the way the level four lockdown was presented to the public and concluding that “the Statements created the overwhelming impression that compliance was required by law – indeed, that is how we interpreted them at the time.” They went on to say that to read the announcement as calls for voluntary compliance was “unreal” [191].

This is about as classic a case of legal realism as you can imagine. The court is taking the arguments of the Crown which are based in a highly nuanced and pedantic definition of the law, and instead relying on the basic perceptions of the orders held by the public. Put bluntly, no matter what the Crown may argue about the orders being suggestions, the majority of New Zealand didn’t see them as such and though they were mandatory. Therefore, the court were unwilling to find them as anything but orders [191].

Once the court had found that the orders were in fact given the force of law, there was little doubt that they would be ruled inconsistent with the rights of New Zealanders. The NZBORA states that the rights within it can be subject to such limitations justifiable in a free and democratic society, only when those limitations are prescribed by law. This means that no matter how morally necessary a limit might be, if it is not properly made then it will be in violation of the Bill of Rights Act. Here, the orders were treated like law when they were not in fact law, meaning the Government had no excuse for violating kiwis’ rights.

At this point, we come up against the other manifestation of legal realism which pushes against this finding of the courts. As most will agree, these orders, while technically illegal for the first nine days, were without a doubt necessary and saved lives [1]. This means that although the courts had to rule them illegal, there was a great deal of trepidation against being overly harsh on a government that enjoys wide-spread support for their actions.

This contrasts very heavily with the most famous and similar case where the courts of New Zealand pushed back against the executive exercising a pretend power of law-making. In Fitzgerald v Muldoon the courts emphatically criticised  the newly-elected Prime-Minister Robert Muldoon for suspending the superannuation scheme by mere order alone. However, that was a politically divisive decision, this case involves life or death for an entire country. You don’t need to be a legal expert to realise that when a court begins its judgment by saying that the Government’s actions were “the right decision”, the Government has been validated, no matter what comes next. This case was a victory for the rule of law in broad strokes, but it also shows that when the courts are unwilling to reprimand a Government, there isn’t really much proper legal accountability. One of the primary functions of the judiciary in a Westminster system is to impose the necessary checks and balances upon the executive branch of government, but here we see the courts hesitant to do so due to the context of the pandemic. Following this decision, the legal realist movement has won the right to say “I told you so” in their loudest, most satisfied voices.

At this point that it is proper to note that none of this is bad per se. Condemnation of the Government’s actions was never the goal of Mr Borrowdale, who firmly supported the health response, just not the manner in which it was conducted. At the end of the day, the rule of law was upheld, and the judiciary kept to their duty of placing the appropriate checks and balances on the executive branch of government. However, as a case which shows how the law deals with the different branches of government during a crisis, one can be forgiven for feeling underwhelmed. From a practical, realistic sense, the Government was held to account and absolved of major consequences by simple common-sense. A declaration was made that the national lockdown orders from 26 March to 3 April breached the NZBORA, but the same declaration called the orders “necessary, reasonable, and proportionate” [292]. For a case the government technically lost, that is a remarkably non-committed ruling. Despite Mike Hosking’s best attempts to turn this into a scandal, no one, including the courts, seems to want this ruling to carry much weight moving forward.

The law is an inherently idealistic thing. All of us can feel free to debate philosophy, doctrines, and morals but when crisis lands on our shores the law doesn’t really know what to do. Actions which are patently illegal can also be without question correct and necessary. Therefore, if the judgment can be said to signify anything, it is that in this age of turmoil and infection, not even the theatre of deliberative law we are so proud of is immune. The pandemic has given us a choice; either accept our system is not suited to times of crisis and rebuild it from the ground up, or pretend nothing happened and ignore the conversation. Looking around, it seems we chose the latter. A thoroughly unsatisfying result, but certainly on par for 2020.

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