Barry Soper: Government will struggle to justify unlawful lockdown

Hats off to Andrew Borrowdale. Who is he, your may well ask? He's a Wellington lawyer - in fact he used to write laws for Parliament.

He was so agitated about the lack of legal grunt behind the country being locked down on March 26 that he took a case to the High Court to challenge it - and today he won.

Borrowdale didn't argue about the wisdom of people staying at home, but he did argue about the Government's right to order them to do so.

His view was reinforced by a Crown Law Office opinion, that he didn't see before mounting his challenge, circulated to interested parties. The police top brass saw it and warned its officers that if they arrested people for being out and about during the first nine days of the lockdown they could be skating on thin ice.

The court ruling has surely thawed the ice, and those who were arrested by the cops in the first nine days could now have a case for wrongful arrest.

The High Court bench of three justices found that for the first nine days of the lockdown the Government's requirement that Kiwis stay at home was justified - but unlawful.

How you justify anything that's unlawful is a little difficult to fathom. If you accept that, then surely it follows that a Government can act unlawfully, which in many people's book gives rise to anarchy or alternatively a dictatorship.

Of course, the justification was because the Government wanted to contain the ghastly Covid-19 virus that was just beginning to take off in this country, although when we went into lockdown no-one had died.

When questions started to be asked about the legality of the first nine days, the Government - although they refused to admit it - realised they were on shaky ground and passed a law making it legal to lock us all up.

When the legality was initially questioned by Newstalk ZB and the Herald, Attorney-General David Parker took to Facebook for the best part of an hour, telling us what they'd done had the full backing of Crown Law (an opinion that was never released).

Parker said there were plenty of commentators poring over every comment being made by the Prime Minister, the Director-General of Health and himself, but he insisted they were right. It turns out they were wrong.

Responding to the court's decision today, Parker conceded the new law should have been written earlier.

Perhaps it would have helped if they actually knew what they were doing before they acted unlawfully.

They've often hidden behind the fact that there's no rule book for coping with a pandemic, but there are books with rules and they are called the statutes containing the laws of the land - and if the lawmakers don't understand them, what hope is there for the rule of law in this country?

Barry Soper, the political editor of Newstalk ZB, is one of the country’s most experienced political broadcast journalists and the longest-serving member of the Parliamentary Press Gallery.