May 7, 2020 2:00pm by David Farrar

A formidable legal challenge

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.

This is a very different lawsuit to the rather demented ones by the person on home detention.

Borrowdale is highly respected. He used to help write the laws at PCO and he is the author of commercial law textbooks.

Geddis said the case wasn’t so much about whether or not New Zealand should have gone into lockdown, but whether or not the powers that were used to trigger the lockdown existed – if they did not, Parliament could have created them before level 4 came into force.
He said it was an important legal question to settle.
“Our constitutional and legal health is as important to as the physical health of individuals. Yes, we want the Government to keep us safe and to protect us, but that’s not a green light to not follow the laws.
“If you sweep the laws away at this moment, what’s the point of having laws?” he said.

This is key. The issue isn’t whether it was a good idea to go into lockdown. It is whether it was done legally. The Government could have asked Parliament to pass a law to give it explicit powers to do what it wanted to do. Parliament obviously would have done this, just as they wrote the Government a $52 billion blank cheque for fighting this.

But the Government chose not to seek a specific law, and this lawsuit is about whether or not existing laws were sufficient.

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