Monday, July 27, 2020

A necessary challenge

Today a full bench of the High Court is hearing Andrew Borrowdale's challenge to the legality of the COVID-19 lockdown. That lockdown ended two months ago, so the point seems moot - but it was never about ending it. Instead, as Andrew Geddis points out, its about a key principle of our system of government: the rule of law. Our government must at all times obey the law and only exercise its powers within that framework. While it is happening after the fact, this challenge is a way of ensuring that that was done, an important check and balance. If it succeeds, there's no practical relief that can be granted (except to those actually convicted of breaking lockdown, who would have their convictions reversed and fines repaid). But we would still benefit from seeing better laws and processes in future. And if it fails, we get reassurance, which is worth something in itself.

So far, some of what the government has argued - that its orders were just "advice" - has been the sort of thing you expect to see on a Tui billboard. But the actual key point I think is going to be whether the Health Act actually allowed what was ordered. And on that front, the passage of the COVID-19 Public Health Response Act suggests the government doesn't really believe that it did. But I guess we'll find out in three days - or however long it takes the court to make a considered decision.