Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Outcome of the decision
In April 2020, the Plaintiffs brought legal proceedings against the Defendants, alleging the Government had subjected them to unlawful detention under the COVID-19 lockdown.
The High Court declined to issue writs of habeas corpus in favor of Nottingham and McKinney, finding that the two men and their families and associates were not detained under the Health Act, and that habeas corpus is not the appropriate procedure for considering their allegations.
The Plaintiffs appealed but the Court of Appeal agreed with the High Court. It dismissed the appeals and said that the actions should not have been brought personally against the Defendant.
Facts of the case
The Plaintiffs applied for writs of habeas corpus due to the impact of the New Zealand Government’s response to COVID-19 on them. The High Court declined to issue the writs as detention for the purposes of the Habeas Corpus Act 2001 (the Act) was not established. Even if there was detention, the Judge considered it would be lawful. The Appellants appealed the High Court’s judgment.
Before the Court of Appeal, the Plaintiffs alleged that the New Zealand Government’s response to COVID-19 has subjected them to unlawful detention. The general question addressed in this judgment is whether the High Court erred when it declined to issue writs of habeas corpus in favor of the Plaintiff according to the Health Act.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
On the issue of whether the High Court erred when it declined to issue writs of habeas corpus in favor of the appellants, the Court argued that the restrictions under the Health Act (COVID-19 Alert Level 3) Order 2020 impinged on a person’s movements, but still allowed for a wide range of activity. The Court found that, for example, business, services and workplaces that have the relevant infection-prevention measures in place could still be accessed. People could engage in outdoor exercise and recreation and bubbles arrangements were extended within certain limits. The Court, therefore, found that the Appellants’ liberty had not been infringed for the purposes of the Act.
Furthermore, the Court noted that, even if the Appellants were detained, the Crown would not have to establish that the detention was lawful as habeas corpus is not the appropriate procedure for considering the appellants’ allegations. An expedited application for judicial review should have been made to resolve the complex legal questions at issue in this case.
Conclusions of the deciding body
The Court of Appeal agreed with the High Court and dismissed the appeals.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court found that it is also important not to conflate restrictions on a person’s movement with restrictions upon their liberty. The spectrum of restrictions on a person’s movement may vary from imprisonment through to the comparatively mild restrictions imposed when a person is required, for example, to sit down on an airplane during take-off or landing. Imprisonment entails obvious restrictions upon a person’s movement and liberty. It cannot be seriously argued, however, that the requirement to sit in an airplane seat involves restrictions upon a person’s liberty, even though it necessitates obvious restrictions upon their movement. The Court stated that in order to constitute detention under the Act, restraint of a person’s liberty must entail more than intermittent or limited constraint upon his or her general right of movement. Not every curtailment of the right to movement affirmed by s 18 of the New Zealand Bill of Rights Act 1990 constitutes detention under the Act. Detention under the Act requires holding a person in close custody or in a similarly restrictive environment not shared by the public generally.
- R v Nottingham  NZDC 15373
- Nottingham v R  NZCA 344
- Nottingham v R  NZSC 23
- A v Ardern, above n 1, at -
- B v Ardern, above n 1, at -
- Drever v Auckland South Correction Facility  NZCA 346,  NZAR 1519
- Schuchardt v Commissioner of Police  NZAR 1689 (HC)
- Misiuk v Chief Executive, Department of Corrections  NZCA 480,  2 NZLR 114
- Hunia v Parole Board  3 NZLR 353 (CA)
- Erceg v Erceg  NZSC 135,  1 NZLR 310
- Y v Attorney-General  NZCA 474,  NZAR 1512
Impact on Legislation/Policy
The governmental measure has been upheld.