Kate Davenport KC, a bencher at the Honourable Society of the Middle Temple, spoke at their online event Pandemic and Practice: Australasia. She discussed the impact of New Zealand’s Covid-19 response on the legal profession, her experience as President of the New Zealand Bar Association at the time of the first lockdown, and the judicial review proceedings brought against the Government with regards to MIQ and its restrictive entry requirements.
“Good evening everyone. My name is Kate Davenport. I am a [King's] Counsel practicing in Auckland and I have chambers at Outer Temple Chambers in London. I am really pleased to be able to make this presentation today to talk about New Zealand’s experience with Covid-19.
I am going to talk about two aspects of New Zealand’s response to the pandemic.
First, about the impact on the Bar of the early days of the pandemic and second the judicial review proceedings that were brought against the Government challenging New Zealand’s restricted entry requirements which prevented New Zealanders from returning home.
Some background material for those that don’t know, New Zealand has a population of 4 million with a further approximately 800,000 to 1,000,000 New Zealanders living overseas. It has four main population centres, the biggest being Auckland with a population of approximately 1.2 million.
I practice in the biggest set of chambers in New Zealand but there are only 65 barristers which include employed barristers (as in New Zealand you can only join the Bar as a Barrister Sole once you have had three years post admission to the Bar experience). New Zealand has a mainly fused profession. The Bar consists of about 139 [KC]’s and 1,700 Barristers, 20% are women.
During the pandemic New Zealand had an initial policy of elimination of Covid-19. As the strains of Covid became less deadly but more infectious a policy of containment. Its first lockdown was announced at the end of March 2020, and it was what New Zealand called Level 4, meaning that only supermarkets and other essential services were open. Restaurants, all retail stores, all take away outlets were all closed. A takeaway coffee – surely an essential item, was unavailable for 6 weeks.
At the time of the first lockdown I was President of the New Zealand Bar Association and was involved with negotiating the difficulties that the pandemic and the Level 4 caused to the operation of our Court systems. New Zealand has a Court called the District Court which is the entry court of all criminal proceedings and where most crime is dealt with including jury trials.
Only the most serious cases (murder, major drug importation, serious sexual offending) move to our High Court. The District Court and the High Court are the only courts of first instance where jury trials are conducted. The Court of Appeal and Supreme Court conduct appeals only.
The immediate reaction to the Covid-19 lockdown was that all Courts immediately shut except for the few Courts dealing with overnight arrests. The impact was immediate. All civil cases ground to a halt with the Courts refusing to progress litigation. Criminal trials both judge alone and jury trials stopped.
The Bar Association was able to advocate for the continuation of civil work most of which could be managed by email and as the Courts became more adept at remote justice they could offer hearings. The New Zealand Justice Department had resisted expending any money on an efficient online platform and online filing for a number of years before Covid so the advent of Covid accelerated the requirement for the operation of the justice system electronically and online but it has been a gradual process. We finally achieved the ability to pay online!
There were still glitches such as allowing casebooks and bundles to be provided electronically but still requiring hard copies which were almost impossible to deliver. I am certain that the process was similar in many jurisdictions but may have been more marked in New Zealand because of the almost complete lack of technology in our Courts. The switch to online hearings was hard as accessible Microsoft Teams or Zoom calls were felt not to be secure enough for the Court system.
But the purpose of this talk is not to talk about the practical difficulties but to talk about the impact on counsel. Barristers are, in my experience, both used to working alone but also are a convivial bunch who thrive in chambers and in circumstances where they can learn from others both at junior and senior level. Barristers like to talk to colleagues about difficulties with cases and clients. This became impossible. Chambers were closed in accordance with the Government’s regulations, and everyone had to work from home.
Not everyone coped with this well. The Senior Bar generally did better with bigger home offices and fewer young children – although my 15 year old interrupted one hearing by bellowing continually outside the door “Mum, the cat’s been sick”.
But the junior Bar had small flats, small apartments or houses and young children. It is easy to forget that when the pandemic began there was no vaccination available and no idea of when one would be, the television was filled with images of thousands of people dying all around the world and there was no certainty as to when this would end. It was a frightening time.
The Bar was privileged in that going to Court was deemed to be an essential service. So the Court could order that counsel attended but criminal jury trials completely stopped. The Corrections Department (who manage our prisons) were declining to allow prisoners to go out to court and come back to prison because of the risk so contact with prisoners was all by AVL (remote access) which made getting instructions difficult, it made access to justice a big problem and led to significant overcrowding in our prisons because those on remand were not being dealt with.
Jury trials by and large were stopped and Judge alone cases proceeded very slowly. For those dependent upon income earned by carrying out trial work the impact was immediate. While there was some Government assistance available it wasn’t ample and required you to prove some quite difficult accounting such as that for the same period in the previous year you could show that your income had dropped by 40%. This is not always possible given the ups and downs of barristerial income. The Civil Bar were also struggling. While some work carried on other work completely stopped and the isolation, lack of financial security and the unknown.
It made the Bar Association more aware of our vulnerability of our practice while I think we all know intellectually that these things are possible the reality of self-employment in the time of global turmoil is challenging and we need as a profession to be more aware of how to support each other but also how to get back to normal, how to resume the things that the Bar has lacked during the pandemic such as collegiality, such as teaching of junior staff which hasn’t been able to happen during the pandemic and trying to encourage people to come back to work to get that collegiality, the ability to learn and not just to work from home.
So, people’s isolation and fear and then lack of money began to affect their mental health and they turned to the New Zealand Bar Association. We were faced with a membership, many of whom were not in big chambers, who were suddenly very needy. We began to have to consider how we could address diverse issues such as isolation, the fear of the future, lack of income, computer illiteracy and some depression.
Our chambers system is not as fully developed as the UK or Australia so many at the Bar have no other support. We felt under equipped to deal with many of these issues but we tried to create a sense of being listened to, and supported, with weekly or bi-weekly newsletters updating the Bar on what was happening with the Courts, who to call and tips on trying to cope with the isolation, Friday night virtual drinks, links to e-counselling services, sessions on what computer to buy and how to use it, and sessions on managing stress. It was time consuming but ultimately it achieved a lot. Our members felt supported, and it appeared to ease some of the stress. It brought to the foreground many of the mental health issues that the Bar has struggled with – stress, alcohol abuse and depression.
Now however, two years later, many seem reluctant to get back into Court. I think that this will have a significant impact on the profession and in New Zealand our Courts are reluctant to have us back.
Advocacy is of course possible in remote hearings but the ability to read a judge’s reaction and the witness’s reaction to questioning are all different and less simple remotely. I feel that the profession will be worse off if remote hearings become the norm. One of my colleagues had to fight hard against the other side’s request for a 20-week construction trial to be run remotely.
In my view advocacy skills are what distinguishes us. You learn advocacy by appearing in Court. I am not convinced that these skills are as achievable from our home office.
The other aspect that I wanted to discuss is one of the challenges to the rules notices and legislation passed by Parliament to deal with the pandemic. The New Zealand Government required every person who entered New Zealand between March 2020 until February 2022 to go into Government managed isolation and quarantine for 14 days, called MIQ. New Zealand had about 4,000 hotel beds available for those required to isolate but practically, because of the need to allocate emergency beds for those who had urgent reasons for entering New Zealand and to accommodate groups who had to return such as the Antarctic scientists and our sporting teams, there were only about 2,500 beds available every 14 days.
New Zealand had a variety of methods to get a voucher for entry over the two years. Initially you got that by simply trying to obtain a voucher online on a first come first serve basis which led to all sorts of abuses such as use of computer bots, but this then changed to something called a booking system where every two weeks everybody who wanted a voucher would go into a waiting room and were randomly given a number.
So if the number you got was 1 to 2500 or 3000 you would get a voucher and those who had numbers over this would not receive a room. In each ballot there was no preference given to those who had been in multiple ballots and had been waiting many months to return to New Zealand and there was no weighting for mental health, physical illness, etc. the only availability was to apply for emergency entry which was strictly controlled. Approximately 40,000 applied every two weeks for vouchers with only about 8% being able to get them.
This led to an organisation called Grounded Kiwis Group Inc to be formed by a New Zealand lawyer in London. This organisation brought judicial review proceedings against the Ministry of Health, the Minister for Covid Response and the Ministry of Business Innovation and Employment who controlled the voucher system. The Court issued declaratory relief under the New Zealand Bill of Rights Act.
The Bill of Rights provides in s. 18 (freedom of movement) that every NZ citizen has a right to enter NZ. The applicants challenged the voucher system, especially as it operated towards the latter part of 2021 and early 2022 and submitted that the entry system was an unreasonable restriction on s. 18.
They filed affidavits which set out the stories of numerous kiwis who had faced significant hardship and distress because of their continued failure to secure a voucher to return home. One woman for example, had left during the pandemic to support her brother following the death of a parent. She planned to be away for a month. 12 months later she was still trying to get back into the country and to her teenage children.
A hearing was held in February 2022 and a decision given in April 2022 (by which time the voucher system was over) and the Court found that that the Government had acted unlawfully with the voucher system. The declaration that was issued by the Court found that the “combination of virtual lobby and the emergency allocation system meant that the MIQ system to the extent that it did not allow New Zealand citizens facing unreasonable delays to be considered and prioritised where necessary operated as an unjustified limit on the right of New Zealand citizens to enter their country”.
The Court also made a declaration that there were errors in the exercise of power under the Covid-19 Public Health Response Isolation and Quarantine Order in the way in which the emergency allocations were decided. The Court found however that there was no breach of s. 18 in having restrictions on entry to NZ given the need to protect the population from the pandemic.
This is an interesting decision because in Canada similar challenges had been made to Covid-19 travel restrictions, and in both reported cases the Canadian courts had determined that the limitations on the right to enter a country or state were reasonable in the circumstances of the Covid-19 response.
The New Zealand Court also found that it was reasonable to limit entry and require quarantine in the circumstances of the pandemic but that the New Zealand system, which did not take account in any way of the length of time that a person had been waiting to enter New Zealand and have limited emergency rights, did infringe the Bill of Rights and a right of a New Zealander to return home.
So these two very diverse topics are just many of the issues which have arisen at a time of unprecedented restrictions on normal human rights in response to the pandemic. The rules were draconian controlling movement, rights of entry to the country and rights to speedy trials amongst many things.
I do hope that we learn from the pandemic to better support our colleagues but also the need for the most nuanced restrictions possible which protects the population but also takes into account the human suffering caused by these restrictions.”