LEX & LORE Episode 2: The Big Hot Ball of Wax: Legalities of the Lockdown

Synopsis

During a national emergency arising out of a global pandemic that many countries are still struggling to contain, the government provided advice on voluntary compliance measures to isolate the threat by restricting contact between everyone but those we lived with, on a nationwide scale. The voluntary compliance approach was predicated on government press conference messaging to co-opt the goodwill of a “team of five million”, with the lens of the law focused on a network of regulatory tools. How should the legally-minded think about the flexible but necessarily murky approach taken by the executive in light of its failure to fit with traditional rule of law standards; standards of certainty, and clarity?

In this episode, Geoff discusses the public law implications of the upcoming High Court decision in Borrowdale v Director-General of Health with Dr Dean Knight. Central to this conversation is how we think about law itself – if we think of law as obligatory command and consequence, then we might consider the way government managed lockdown as insufficient. We all experienced lockdown compliance in different ways. What price would we pay for certainty and clarity were the executive enabled to exercise wide and enforceable powers during a national emergency?


About the Guests

Dr Dean Knight, Associate Professor, Victoria University of Wellington
Specialises in Constitutional law, administrative law, judicial review and local government


Cases Discussed:

Executive power
Borrowdale v Director-General of Health [2020] NZHC 1379
Fitzgerald v Muldoon [1976] 2 NZLR 615


Further Reading:

Andrew Geddis and Claudia Geiringer: Is New Zealand’s COVID-19 lockdown lawful?
Dean Knight and Geoff McLay: Is New Zealand's Covid-19 lockdown lawful?- an alternative view
General legal commentary on the law and COVID-19 can be found HERE