The perception is that Covid-19 was late to infiltrate New Zealand. The government knew of the threat to our island nation by late December 2019. Concerns raised about infection arriving from overseas led to the first response on 28 January 2020 when an infectious and notifiable disease order was issued requiring health practitioners to report any suspected Covid-19 cases. Shortly thereafter inbound foreign travellers from China and then Iran were denied entry. When a citizen in her 60s returned from Iran on 26 February 2020, New Zealand became the 48th country to have a confirmed case of the disease.
A four-level alert system was announced by the prime minister on Saturday, 21 March 2020. Alert Level 1 represented the least risk of disease transmission in the community and Alert Level 4 the highest. The country was placed at Alert Level 2. There were, by then, some 50 diagnosed cases of Covid-19, all related to international travel. Designed to guide public expectation and encourage compliance, each level was labelled with a simple one-word message and a description of increasingly severe restrictions on the free movement of people and the gradual closure of all but essential services.
The borders were soon shut down, except for returning citizens. Public facilities and government offices closed, as did schools and universities. All businesses were asked to have employees work from home. We were also told to prepare for, and expect, a swift move to Alert Level 4 when some 5 million people would be confined in their usual residence. Then on March 25, less than four weeks after New Zealand’s first Covid-19 case was discovered, the government adopted a “go hard, go early” response. A seven- day renewable national state of emergency was declared under the Civil Defence and Emergency Act 2002. The nation then entered Alert Level 4.
The Chief Justice, the Right Honourable Dame Helen Winkelmann, communicated with the legal profession throughout this time and on 25 March 2020 sent a letter to the legal profession entitled Covid- 19 — court operations at Alert Level 4. The correspondence emphasised that “New Zealand courts must continue to uphold the rule of law and to ensure that fair trial rights, the right to natural justice and rights under the New Zealand Bill of Rights Act are upheld” and advised the following:
Only proceedings that affect liberty or personal safety and well-being of the individual, or that are time critical, should be heard during Alert Level 4.
Courts will use remote participation to the maximum extent possible. Where court attendance is unavoidable, the safety of the public, court staff, and members of the legal profession is paramount.
Courts will not receive in-person filing, although for those with no access to email, filings can be by post. Courts will waive filing fees while on Alert Level 4.
Courts will exclude from courthouse members of the public whose attendance is not required, except for accredited members of the media.
The business of the courts was curtailed. Many courts closed. Jury trials were suspended until at least 31 July 2020. While courts and judges were declared essential services for safety reasons, access to courts was restricted. Our Supreme Court and Court of Appeal, while closed, continued to hear and issue appeal decisions. Other courts heard matters on the papers or relied solely on remote participation as the predominant means of hearing, although in-person attendance was permitted in some cases. During the Covid-19 emergency the chief justice — together with the heads of bench supported closely by the Ministry of Justice — rapidly ensured proceedings that affected the liberty or safety of individuals, alongside time-critical decisions, were prioritised. At each alert level, protocols were published setting out the way in which each of the courts would operate.
Parliament passed the Covid-19 Public Health Response Act 2020 on 13 May 2020. Then at 11:59pm, after seven weeks of isolation with the rate of transmission under 0, the country very gradually re-opened for business. By then most judges had returned to their resident courts. Court proceedings resumed on 18 May 2020 under new Alert Level 2 protocols designed for each jurisdiction. At midday on Friday, 29 May 2020 the ‘gathering’ restrictions at Alert Level 2 were relaxed, allowing for up to 100 people to safely congregate.
On Monday the 8th June 2020, the government announced it was ending all coronavirus restrictions after the last known patient recovered and the country was free of active cases. The authorities lifted the last internal containment measures at midnight. Shops, restaurants, cafés, bars and public transport resumed almost normal operations, limits on public gatherings were removed and social distancing is no longer required although it will still be encouraged.
The chief justice released a media statement confirming the Alert Level 2 protocols for all courts would be suspended from midnight. Physical distancing will not be enforced in courts. However current hygiene measures were to be maintained, as was contact tracing. Under Alert Level 1 the courts essentially return to normal operations while maintaining those safety measures.
These events are so recent that the answers we provide are, of necessity, only preliminary and brief. The High Court and District Courts and Family Courts, where most of the criminal and civil proceedings are heard, continued to safely operate, although at reduced capacity. The answers we give are most relevant to the experience of those judges who continued their essential frontline service during the crisis. However, as Covid-19 impacted all judges and all courts, a brief description of effect and future recovery plans is included.
The answers are supplemented by a hyperlinked timeline of the various legal instruments promulgated since February 2020. The various protocols for each level can be found in this link. Sample media releases describing the Alert Level 2 protocols for court proceedings are in the appendices.
New Zealand reported its first case of Covid-19 on February 28. The country’s total number of confirmed cases stands at 1,154, with 22 deaths. A commentator used the rugby analogy of a rolling maul to describe New Zealand’s approach to eliminate community transmission of the Covid-19 virus. Like a maul, he said, the law has evolved and been strengthened and sharpened, as the country was locked down in their household bubbles. The game of rugby relies on two things. A great captain and a dedicated team. The calm strength and leadership of our chief justice and a dedicated judicial team has ensured confidence in the rule of law during this emergency.
I am very grateful to Justices France and Miller who, together with District Court Judges Binns, Cocurullo, Layne Harvey, Goodwin, and Jeff Smith, generously contributed to this report.
Judge Gerard Winter
President J.A.N.Z.
Te Hunga Kaiwhakawa o Aotearoa Judges Association of New Zealand