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

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