COVID-19 Stay at Home Restrictions and the Interpretation of Emergency Powers: A Comparative Analysis

Abstract

The COVID-19 pandemic has created immense challenges for governments in their management of the public health response and tested the limits of public law. This article undertakes a comparative analysis of the common law jurisdictions of the United Kingdom, New Zealand, and Australia. It discusses the imposition of ‘stay at home’ restrictions pursuant to public health legislative frameworks, focusing on judicial scrutiny in the context of statutory interpretation. It examines the appellate cases of R (Dolan) v Secretary of State for Health and Social Care [2021] 1 WLR 2326, Borrowdale v Director-General of Health [2022] 2 NZLR 356, and Kassam v Hazzard (2021) 106 NSWLR 520. Using these case studies, this article seeks to reveal key themes and implications for public law. What approaches have the courts adopted to construe public health emergency powers? How have the courts treated ‘rights-based’ principles of statutory interpretation? Have the courts approached interpretation in the usual manner or displayed an unorthodox level of deference to other branches of government? The article concludes on what implications the judicial approaches have for the interpretation of emergency powers in the future.