Attorney General David Parker holds a media conference yesterday with the media at an appropriate social distance as he defends the Government's now-illegal original lockdown notice.

The Prime Minister Cabinet is to be given three options on the future of the Auckland lockdown when she reviews it on Friday.

POLITIK has been leaked details of the choices she will be offered.

The options at the moment range from pessimistic to optimistic based on the Covid situation

Option One would have Auckland stay at Level Three for another two weeks. The rest of the country would stay at Level Two.

This, however seems the least likely option since the Prime Minister, Jacinda Ardern, told the AM show on Tuesday that the Director-General of Health Dr Ashley Bloomfield was of the opinion a two-week lockdown should be the “maximum” for the city.

The current lockdowns were implemented on August 12 – two weeks from then is August 26,  next Wednesday.

Option Two would move Auckland to “Level Two plus” with more freedom than Level Three while the rest of the country dropped back to Level One.

Attorney General David Parker confirmed yesterday that the Government, under the new COVID-19 Public Health Response Act had more flexibility to define what could happen at each Level.

“One of the benefits of the specific Covid legislation, is that it enables more fine grained responses, including at Level Two,” he said.

“The powers under the Health Act were adequate for Levels Three and four.


“But the advice that we received was that we needed more particular powers at lower Levels, including Level Two which the Covid Response Act contains.”

Thus the “Level Two Plus” looks a likely outcome. And the “plus” could logically relate to travel in and out of the Auckland region which would not be prohibited under the current Level Two

The third position is simply to reduce Auckland to Level Two and the rest of the country to Level One – but given Parker’s precise response at his media conference yesterday, it would seem highly likely that “Level Two Plus” is being actively considered for Auckland.

The “plus” would seem likely to relate to travel in and out of the Auckland region which would need to be specifically prohibited in any new order.

 Parker’s enthusiasm for the new legislation yesterday was timely because less than an hour before his media conference, the High Court had ruled that the original Lockdown order on March 25 under the Health Act had been illegal until it was replaced by a new Order on April 3.

Lockdown breaches  Bill of Rights Act

The case was brought by a former Parliamentary Counsel, Andrew Borrowdale.

He argued that the Government had breached the Bill of Rights Act by restricting the movements of people to their homes.

He rested his case on the failure by the Director General of Health to include in his Order under the Health Act of March 25 any reference to the need to isolate.

All it required was that “all premises to be closed, except (among other things) private dwelling houses, and forbade people from congregating in outdoor places of amusement or recreation.”

The Crown argued that the advice to stay home was simply guidance and not commands.

But the Court received what appeared to be pages of transcripts of Government Ministers and officials press conferences and interviews which suggested otherwise.

And in the judgement, the Court; Chief High Court Judge Susan Thomas and Judges Geoffrey Venning and Rebecca Ellis said they faced a dichotomy; the importance of encouraging voluntary compliance but also the threatened use of coercive powers, “that lies at the heart of the first cause of action.”

The Judges quoted statements from a Prime Ministerial press conference of March 25.

“I have one simple message for New Zealanders today as we head into the next four weeks: stay at home,” said Ardern.

“It will break the chain of transmission and it will save lives.

“Breaking the rules could kill someone close to you and that is why it is so important; I cannot repeat this enough: staying at home will save lives.

“If someone is outside and has no explanation, [Police] will remind them of their obligations, and if they believe they need to, they can take other enforcement actions.”

On March 26, the=then Commissioenr of Police, Mike Bush made an even more explicit warning.

“If people do not comply, the very next step is, if there’s no other way of doing this — because we do want to take a very caring and compassionate approach to this —but if people won’t comply, we do have the authority to then detain them, take them to our place, and put them somewhere that will allow them to contemplate the impact of their decisions,” he said.

The Court concluded that the Restrictive Measures imposed on New Zealanders by way of the Statements for the nine days between 26 March and 3 April were limitations on the New Zealand Bill of Rights Act rights that were not prescribed by law.

On April 3 the situation was remedied by a new Health Act Order invoking clauses in the Act which allowed the Government to require that people be isolated in their homes.

Parker, however, said he was always confident that the Government had the right basis for the legal orders.

The court has gone to a lot of effort to actually record the fact that this was an emergency, that things had to be done quickly and that the orders to stay at home and bubbles were proportionate,” he said.

“I just think it should been written down a little bit earlier.”

He said the Government was undecided on whether to appeal.

PM moves on Ministry of Health 

Meanwhile the Prime Minister yesterday made a series of announcements designed to counter the persistent problems that have surfaced in recent days over testing of workers at the border and in managed isolation and quarantine facilities.

She more or less admitted there ahd been failures.

Cabinet signed off a good, solid testing plan for border and managed isolation workers drafted by the Ministry of Health in late June but as has been discussed, it is not being executed at the scale and speed necessary,” she told her daily press conference.

“As I’ve said, as with our response on all things with Covid, when we have identified gaps or issues, we have moved at speed to fill them; and we do so now.

That has meant three new measures:

  • Looking at the Ministry of Business, Innovation and Employment establishing a security guard force to replace the current private security guards employed at managed isolation and quarantine sites
  • The deployment of around 500 extra Defence Force personnel into the managed isolation and quarantine system and maritime border.
  • The appointment of Heather Simpson and Sir Brian Roche to head a small team to “support Health to stand up the comprehensive testing strategy that we set out in June.”

The move to appoint Simpson and Roche is a clear indication that the Government believes there are fundamental problems inside the Ministry of Health.

Simpson chaired the recent “Health and Disability System Review” and Roche, a former accountant and Government Chief Executive and “go to” troubleshooter for this Government was a member of her team.

The report effectively advocated the dismantling of the Ministry of Health and its confinement to a restricted strategy and policy drafting role.

Nevertheless, the Director General of Health, Ashley Bloomfield, said their appointment was not a vote of no confidence in the Ministry.

“In fact, I welcome it,” he said.

But in what might seem like an admission that he was finding it difficult to manage the testing of all the border workers he said the addition of testing at airports, maritime ports and managed isolation and quarantine right across the country was logistically complex.

“It involves not just health, but a range of private and public sector workforces,” he said.

“So I actually welcome helping us make sure we have a plan that is both aligning the health part of that, which is ensuring the testing capacity is there, but also ensuring that the workforces are regularly brought through for that testing.”

NZ First and National propose a border agency

Meanwhile today it seems likely we will see two rival plans to establish a separate border agency.

NZ First announced yesterday that it wanted to establish a New Zealand Border Force which would combine the functions of the New Zealand Defence Force; the New Zealand Customs Service, and the immigration detention and compliance functions of Immigration New Zealand, which would be extended and strengthened.

“These Border Force Officers would be given the powers to do their job properly,” said NZ First Leader Winston Peters.

National Leader Judith Collins is holding a press conference this morning to announce her party’s border policy and she tweeted last night in response to Peters’ announcement: “Imitation is the sincerest form of flattery; tomorrow you’ll see what a proper plan to protect New Zealand’s border looks like.”

Now the Prime Minister must hope that her stepped up border measures will allow her to begin to relax the lockdowns.