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Member Leo Farmer represents appellant in Borrowdale v Director-General of Health


November 26, 2021

Member Leo Farmer appeared in the Court of Appeal challenging the Director-General of Health’s powers to place New Zealand in the level 3 and 4 lockdowns in 2020.

The first ground of appeal was whether the Director-General exceeded the powers conferred on him by ss 70(1)(f) and (m) of the Health Act when he issued the three Health Act orders requiring:

  • All premises except “essential businesses” to close;
  • People not to congregate in outdoor places unless they maintained physical distancing;
  • All people to remain at their place of residence except as permitted.

The Court held the orders were not ultra vires. The Court analysed each of the relevant Health Act provisions and was satisfied that Parliament intended to confer on the Director-General and Medical Officers of Health wide-ranging powers that were broad enough to encompass the Orders.

While parliament’s intended meaning of ss 70(1)(f) and (m) limited the rights and freedoms affirmed by ss 16, 17, and 18 of the Bill of Rights Act, the Court held that those limits were justified in a free and democratic society.

The second ground of appeal focussed on the Health Act order that allowed “essential businesses” to stay open. The appellant argued that the Director-General could not delegate the task of deciding which businesses were “essential” to ministry officials, as that involved an assessment of what the necessities of life were.

The Court was satisfied the Director-General did not unlawfully delegate his statutory powers. Rather, he turned his mind to the list of essential businesses when making the relevant order, and later adopted that list and definition. In any event, the Court held there was no unlawful delegation. There was also no issue with later decisions concerning exemptions provided to a range of businesses such as golf courses and the Tiwai Point Smelter.

To read the judgment, click here

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