This, my 701st post, is about authority and precision as aspects of the rule of law.
Borrowdale v Director-General of Health [2020] NZHC 2090 is about some official statements that were made in the earliest days of our Covid-19 lockdown.
Were these statements law?
The Director-General of Health had the power to make statements of law, but this power was given by (the then) legislation to him alone. The Prime Minister did not have that power, so statements she made at media briefings were not law. Nor were interpretations of the Director-General’s statements of law, issued by various officials.
Unfortunately, the Director-General did not initially realise that it was all up to him to make law. He apparently thought that his role was advisory and that the PM and the Minister of Health could issue statements that were legally binding.
This could be what led to the Director-General speaking in terms that any lawyer, and most people, would regard as imprecise. It also led to the PM speaking vaguely, issuing encouragements (which would have been appropriate) but couched in mandatory terms (which were unlawful). These caused people to confine themselves to contacts with only a few people in their “bubble”, thinking that doing so was a legal obligation.
The Full Court of the High Court held that the unlawfulness was justifiable. That apparently means that no one is liable for the unlawfulness. Fair enough, of course, since things were done under urgency and the first consideration was public safety.
The Court said (at [291]), “The rule of law requires that the law is accessible and, so far as possible, intelligible, clear and predictable.”
There is a distinction between stating the law and interpreting it, and this is illustrated by the Court’s upholding of the lawfulness of the Director-General’s order that all but “essential businesses” must close, because "essential businesses" was defined in that order in a way that was “clear and fixed” (at [279]), notwithstanding that the list of such businesses, prepared by other officials and published online, changed from time to time. The list was legitimate interpretation, an executive function. The definition was “certainly broad, but we think it has parameters and was capable of being given an ascertainable and reasonable meaning in any individual case” (at [276]).
You can see that this is a rather delicate matter. I remain concerned about the limitations on people’s right to exercise, and the vagueness of the current requirement that places of exercise must be “readily accessible” (see my update at the end of this post). A readily accessible distance to walk for an athletic person may not be for a sedentary enforcement official or a sedentary judge.
Furthermore (grrr...) today we had an example of official confusion of advice and order, in the Minister of Health’s 1.00pm media update on the crisis.
He is reported to have said, “stay in your bubbles, don’t go out unless you have to, and please wear a mask if you do have to go out. As the weekend approaches, those rules still do apply.”
It’s the contradiction between “please” and “those rules”: do we have to wear a mask if we “have” to go out, and what sort of restriction is not going out unless we have to?
The Minister’s interpretation of his own order is not part of the order itself. If he wanted to include those restrictions, he should have put them in the order. That is the clarity that the rule of law requires. There is, currently, nothing in the order to require people who go out to wear masks. Plainly, it may well be good sense to do so, and that is all the more reason to put the requirement in the order and so to make it law.
And as for “don’t go out unless you have to”, this is not the law. The order permits going out for “essential personal movement”, which includes “limited recreational purposes”. In ordinary language, recreation for limited purposes is not something one has to do. Recreation is not compulsory, but it is permitted, despite the Minister’s comment suggesting there is a rule prohibiting it.
That this sort of bumbling obfuscation should have occurred the day after the Borrowdale decision was published – when it must have been fresh in the Minister’s mind – is most unfortunate.
