Lockdown by Press Conference? COVID-19 and the Rule of Law in New Zealand and Austria

Abstract

In response to the COVID-19 pandemic, the New Zealand and Austrian governments both imposed lockdowns in early 2020. This paper compares how these two responses were effected, communicated, and challenged. In both New Zealand and Austria, government communications misrepresented the extent of the lockdown, communicating measures more stringent than those legally in place. This divide between law and communications raised concerns for the rule of law, as citizens struggled to understand their legal obligations. In New Zealand, government communications were subjected to effect-based judicial review. In Austria, where the judicial review system has a stronger focus on the form of state action, government communications were not reviewed. The paper finds that the Austrian courts could have provided a similar remedy to that in New Zealand, but only through a novel and contentious approach. Preferably, the legislator should expressly bring crisis (mis)communication into the scope of Austrian judicial review.