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.
