The first lockdown Order on 24 March, was sweeping and lawful. It restricted congregation in outdoor spaces and the operation of businesses. But in the immediate (conflicting) explanations “essentiality”started to dominate as the key test and purpose, instead of safety risk – the likelihood of assisting contagion. Leaders should get some slack –oversimplification is understandable in an emergency.
But they’ve had time to refine their rules. In the updated Order of 3 April, they doubled down on some restrictions of least benefit for cost. In consequence, in our firm’s legal opinion, important aspects of that 3 April Order are ultra vires – outside the authority of the statutes from which they claim authority.
Bluntly, that is because the continuing prohibitions are avoidably costly and more than is necessary to confine infection. Particularly as applied to activities that are outdoors, or solo, and can be conducted safely within distancing and contact disciplines.
We first formed that view when researching the lawfulness of some Police pronouncements for a client. We (and the client) were anxious to support the scheme. But also keen to get official attention on the collaborative ways that successful countries like South Korea and Taiwan and Singapore had been able to maintain substantial production through their crisis responses.
Over the weekend we wrote to the Prime Minister asking for explanation, and outlining our concerns.
Our purpose in writing is not to disrupt, or distract or to undermine necessary community solidarity. Instead we are concerned that unless the government makes it plain that it will quickly progress phased and selective modification of the regime for essential businesses, the current community consensus will unravel. We have seen promising signs with the relaxation for smaller food manufacturers. But now we need government to invite businesses to come up with their next phase plans. No government will have the capacity to micro-manage and initiate all the design and planning now overdue, and essential.
At present, from what we are hearing, too many businesses could be optimistic about a speedy return to normal. They are pinning their hopes on Alert 4 only lasting another fortnight. Current good trends in infection reports mean it could end on time.But even if it does, what follows will not be a return to how things were before.
Singapore’s move to lockdown this week is significant. They were an early success, and still are, considering that their position puts them into a different universe of risk, from New Zealand.
We are advising clients to take the initiative. The government may move back and forward between levels for a time (and in future pandemics). In the case of COVID -19 New Zealand may be left uniquely vulnerable, paradoxically because of our success.Other countries will have herd immunity, albeit at great cost. We may have little immunity.
Businesses should be able to go to a receptive government showing how they will manage infection risks after the first transition. And to demand release from inefficient and pointless restrictions as soon as they have that plan – not on an arbitrary date after incalculable greater losses of livelihoods.
Read our letter to the Prime Minister here
Contact Stephen or Brigitte if you would like further information including assistance in getting from anti-contagion plan to release to work.
