Judicial Deference and Emergency Power: A Perspective on Borrowdale V Director-General

Claudia Geiringer and Andrew Geddis, 'Judicial deference and emergency power: a perspective on Borrowdale v Director-General' Public Law Review (Forthcoming)

9 Pages Posted: 5 Oct 2020

See all articles by Claudia Geiringer

Claudia Geiringer

Victoria University of Wellington School of Law

Andrew Geddis

Faculty of Law, University of Otago

Date Written: September 15, 2020

Abstract

In Borrowdale v Director-General, New Zealand's High Court made a declaration that, for its first nine days, New Zealand's COVID lockdown was not lawfully authorised. The High Court dismissed two other, and more widely framed, causes of action. In this brief commentary, we suggest two things. The first is that, despite the finding of illegality, the overall result in Borrowdale was predicated on a high degree of deference to executive power. The second is that this is regrettable. It constitutes a dangerous precedent available to future governments regardless of the merits of the underlying measures.

Keywords: COVID-19, New Zealand Bill of Rights Act, ultra vires, unlawful declaration, declaratory relief, principles of legality, emergency powers, judicial deference

Suggested Citation

Geiringer, Claudia and Geddis, Andrew, Judicial Deference and Emergency Power: A Perspective on Borrowdale V Director-General (September 15, 2020). Claudia Geiringer and Andrew Geddis, 'Judicial deference and emergency power: a perspective on Borrowdale v Director-General' Public Law Review (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3693450 or http://dx.doi.org/10.2139/ssrn.3693450

Claudia Geiringer (Contact Author)

Victoria University of Wellington School of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

Andrew Geddis

Faculty of Law, University of Otago ( email )

PO Box 56
Dunedin North
Dunedin, 9016
New Zealand

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