That is the finding of the High Court on the first nine days of New Zealand's lockdown, when we were all "ordered" to stay in our bubbles by the Prime Minister on television. Which is fairly unsurprising. We've known since Fitzgerald v Muldoon that you can't legislate by press release, and that the Prime Minister saying something doesn't give it legal effect. In this case, the order was eventually given legal effect, in the form of formal orders issued under the Health Act (the legality of which the court has upheld: it turns out that the Health Act quarantine power really does apply to everyone in the country all at once). But for those first few days, until those orders were issued, the lockdown order was unlawful and had no legal effect, which meant that it also breached our freedoms of association and movement (because justified limitations must be prescribed by law). At the same time, it was also a justified and proportionate health response, and this was recognised when the legality of the subsequent orders was upheld. So basicly the government's problem here is failing to do its paperwork properly. Which is understandable given the speed at which things were happening, but does actually matter when you're a government.
What does this mean in practice? Anyone prosecuted in those first few days for breaching lockdown has an easy appeal. Apparently that is unlikely to affect many people, but it still matters. There's no issue of potential liability for business closures because, unlike the instruction to stay at home except for essential travel, they actually had an order legally closing all premises. But the chief effect is to remind the government that we are not a monarchy, and that the Prime Minister cannot purportedly order us around from a podium like a King. When they want us to do something, they actually need to pass a law or use some other effective legal instrument. And hopefully in future they'll remember that.
