Another Spectrum

Personal ramblings and rants of a somewhat twisted mind

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“Necessary, reasonable and proportionate”, but unlawful

That’s the opinion of the High Court of New Zealand after a legal challenge to the COVID-19 lockdown. The challenge was only partially successful, in that the court found that all but one of the orders made in regard to the lockdown were lawful. What was not lawful was the “stay at home” order.

The Court concluded that:

By various public and widely publicised announcements made between 26 March and 3 April 2020 in response to the COVID-19 public health crisis, members of the executive branch of the New Zealand Government stated or implied that, for that nine-day period, subject to limited exceptions, all New Zealanders were required by law to stay at home and in their “bubbles” when there was no such requirement. Those announcements had the effect of limiting certain rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 including, in particular, the rights to freedom of movement, peaceful assembly and association. While there is no question that the requirement was a necessary, reasonable and proportionate response to the COVID-19 crisis at that time, the requirement was not prescribed by law and was therefore contrary to s 5 of the New Zealand Bill of Rights Act.

It’s important to note that the court recognised that while the government did have the authority to make such regulations, it did not in fact make them. That was corrected in regulations made nine days into the lockdown that did make the “stay at home” order lawful

For those interested in in the details of the court’s decision, a High Court media release can be found here (PDF), and the full judgment can be found here (PDF).


Is New Zealand’s COVID-19 lockdown lawful?

Two law professors, Professor Andrew Geddis, Faculty of Law, University of Otago, and Professor Claudia Geiringer, Faculty of Law, Victoria University of Wellington raise some questions about the legality of the lockdown orders that we in Aotearoa New Zealand are currently living under. We are, as from midnight last night, at Level Three, whereas we were at Level Four for the previous 33 days.

It will be interesting to see if there are any genuine challenges to the legality of the current lockdown orders. Such a challenge is likely to come in the form of a request for a judicial review. Two badly formulated claims for habeas corpus (A v Ardern [2020] NZHC 796; B v Ardern [2020] NZHC 814) have failed, but the article by Geddis and Geiringer certainly raise some issues that I think need clarification.


The oldest profession: what’s its status?

Although midwifery is probably an older profession, everyone knows what is being referred to when mentioning the “world’s oldest profession“, and that’s prostitution. So how is prostitution faring these days? It really depends on where you look.

In most parts of the world prostitution is illegal. Penalties range from fines to life imprisonment. Again, depending where you are, the penalties will apply either to the seller, the purchaser, or both. However, the illegality of prostitution in these counties has had little, if any, effect in stopping the practice. The most noticeable effect is that prostitution is controlled by the criminal world.

Some other countries have taken another approach and while not criminalising prostitution itself, criminalise activities around prostitution, such as soliciting, running a brothel and living of the earnings of a prostitute. In these countries too, organised crime are big players in the sex industry.

A few, a very few, have decriminalised prostitution. New Zealand has probably the most liberal prostitution laws of any country. These were liberalised in 2003 and although some religious groups were predicting our streets would become awash with sex, debauchery and organised crime, little has changed except sex workers are protected by our employment laws.

There has not be a rise in the number of sex workers. In fact there may have been a small decline as it is now much easier to leave the industry. And because prostitution is not criminalized, there is little room for the criminal underworld to manoeuvre.

The Prostitutes Collective have a web page summarising the current law, and there is an interesting,  2007 Report on The Impact of the Prostitution Reform Act on the Health and Safety Practices of Sex Workers (213 page PDF document) carried out by the University of Otago in 2007, if you’d like dig a little deeper.

While I’m not condoning prostitution in any way, from the evidence I have seen, I believe decriminalisation is the least harmful method of dealing with it. What’s your view?