Guest Post: The Rule of Law is too important

A guest post by Jacob Lerner:

In 1975, a young civil servant, Paul Fitzgerald, sued the incoming Prime Minister, Robert Muldoon. The case, Fitzgerald v Muldoon, was a signal moment for administrative law in New Zealand. It held that a centuries-old English law – section 1 of the Bill of Rights 1688 – meant that Muldoon’s purported unilateral direction, that payments to the New Zealand Superannuation Corporation (NZSC) by employers should cease, was illegal. Chief Justice Wild held that Muldoon’s direction effectively attempted to suspend the Act of Parliament governing contributions to NZSC, a power which no member of the executive branch of government has. The case has ongoing relevance in its restrictions on executive overreach in NZ, and in underlining the power of judicial action when such overreach does occur.

Unfortunately, we now find ourselves in disconcertingly similar times. The Prime Minister and Cabinet told all NZers that from 11:59pm on Wednesday, 25 March 2020, they legally had to “stay home to save lives”. We were in a Level 4 lockdown, a previously non-existent concept that suddenly entered our national consciousness.  We have been instructed about staying in our bubbles, and about not venturing out except for essential reasons. In short, we have been, for nearly all intents and purposes, confined to our homes.

That is all well and good. I, like many other NZers, understood the merits of Alert Level 4, or at least trusted our public health officials enough to accept that it was a good idea. And it has been a policy triumph in response to an enormous problem; in that respect, we are the envy of the world. However, much like Robert Muldoon demanding that super payments should cease, the Prime Minister appears to have lacked the legal basis to have demanded that NZers conform with Alert Level 4. Equally, other means of ensuring a valid legal basis for Alert Level 4 were not used. That abrogation of the Rule of Law should concern everyone.

Insufficiency and legality

The legal issues are quite clear. The first order – made by Dr Ashley Bloomfield under s 70(1)(m) of the Health Act 1956 on the day Level 4 took effect – closed all premises and forbade “congrega[tion] in outdoor places of amusement or recreation”. Assuming that order itself is legal (and that is very questionable, as Professors Andrew Geddis and Claudia Geiringer have eruditely noted), it still did not empower the Prime Minister to make the directions to New Zealanders that she did. The order did not mention “bubbles”, receiving visitors, or even what were acceptable reasons to leave home. In short, it did not provide the necessary legal framework for the Prime Minister’s demand of New Zealanders to “stay home, save lives”.

This gap was later rectified on 3 April, with another order from Dr Bloomfield, this time under s 70(1)(f) of the Health Act 1956. This order does require New Zealanders to stay at home, but there are very real questions about whether it was within the scope of the Health Act, at all. The Director-General of Health’s powers are not unfettered – they are defined by the Health Act – and he cannot make orders that go beyond the scope of his powers. Such orders are unenforceable (and are what is known as ultra vires, literally “beyond the powers”). I will not canvas those issues here, but the article by Profs Geddis and Geiringer clearly sets out the flaws in the two orders.

A missed opportunity

What is arguably more concerning, however, is that the Cabinet had the opportunity to conform more closely with the Rule of Law while still protecting public health, but did not. There are extraordinary powers granted under sections 14 and 15 of the Epidemic Preparedness Act 2006, which allow for the amendment of any enactment (an Act or regulations) in New Zealand, while an epidemic notice is in force, without the consent of Parliament. Specifically, section 14 sets out a process for the Minister and Director-General of Health to amend any enactment, administered by the Ministry of Health (as the Health Act is) “necessary to enable the effective management of the … disease”. Indeed, similar powers were used with regard to other matters, such as allowing remote witnessing of documents (under section 15, which governs non-health related matters).

These powers are known as “Henry VIII powers”, as they allow members of the Executive Branch to override the Legislature, and as such tend to be used sparingly, and are often regarded with suspicion. However, this is one instance where the use of such powers – at least to ensure that the Director-General’s orders were legal – could have been warranted. The fact that they were not used, in spite of obvious legal uncertainty as to the very validity of unprecedently restrictive orders, demonstrates an apathy for the Rule of Law which is ill-suited to the highest levels of government. There is, simply, no excuse for this kind of administrative inaction.

Crown Law Advice

Moreover, the Attorney-General’s refusal to release the legal advice he (and others) received relating to the legality of the orders is similarly concerning. He does so on the basis of a claim of legal professional privilege. This claim is dubious at best. Instead, it is likely the Attorney-General has impliedly waived this privilege. The Cabinet Manual, at 4.68(b), notes that “Partial disclosure of the actual legal advice received, or reference to the content of the legal advice, however, may result in waiver of privilege.” The Cabinet Manual goes on to suggest that even acknowledging that advice has been received and acted on may constitute an implied waiver of privilege.

In this case, on 8 May, the Attorney-General said: “Crown Law’s advice was, and is, there is no gap in enforcement power”. On that basis, he appears to have waived privilege and ought to release the legal advice forthwith. His insistence that he does not have to do so – indeed, going so far as to refer Simon Bridges to the Privileges Committee of Parliament for attempting to force the release of the advice – is misconceived and damaging to the vital process of parliamentary scrutiny.

Back to Muldoon

Not so long ago, a claim that the Muldoon and Ardern governments acted similarly in their disdain for the Rule of Law might have seemed unjustified. Unfortunately, such a claim seems to be far more apt now. The Ardern government has been no defender of the Rule of Law recently, and it is vital that the matters addressed above – the insufficiency of the first order, the questionable legality of both orders, the lack of attempt to rectify the situation and the refusal to release Crown Law’s advice – be thoroughly scrutinised, both in the judiciary and in parliament. Whatever your stance on the Ardern government, or on lockdowns, the Rule of Law is simply too important to put to one side.