New Zealand, High Court of New Zealand, 16 August 2022,  NZHC 2026
Deciding body (English)
Type of body
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
- Freedom of movement of goods and capital
Outcome of the decision
Link to the full text of the decision
The Applicants challenged the lawfulness of the COVID-19 restrictions as they related to public gatherings, in particular faith based gatherings. The main rights involved were freedom of religion and freedom to manifest religious beliefs. The remedy claimed was that the restrictions were unlawful and a breach of the Applicant’s right to manifest religion pursuant to s 15 of the New Zealand Bill of Rights Act 1990.
Facts of the case
The applicants challenged gathering limits and requirements for COVID-19 vaccine certificates (CVCs) under the COVID-19 Public Health Response (Protection Framework) Order 2021 (Order) made under the COVID-19 Public Health Response Act 2020, on the grounds those measures breached their right to manifest religion under s 15 of the New Zealand Bill of Rights Act 1990. The Applicants were comprised of two groups: churches and mosques and individual church leaders. The provisions of the Order set out various ways to regulate activities and gatherings, including faith-based gatherings, at different levels of COVID-19 risk. The Order imposed limits on the size of gatherings, depending on whether attendees had COVID vaccination certificates (CVCs) or not, and depending on what level of the COVID-19 Traffic Light Framework was in place. Lower limits applied where participants did not have CVCs. The Court held that while the measures in the Order did limit the applicants' rights under s 15, they were a justified limit under s 5 of the Bill of Rights Act, both on introduction, and after the Omicron variant was circulating in the community. Nor was there an error of law by the Minister. The claims of both applicant groups were dismissed.
Type of measure challenged
- National government measure
- Federal government measure
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Court considered the Order, being the COVID-19 Public Health Response (Protection Framework) Order 2021. Its purpose was “to prevent, and limit the risk of, the outbreak or spread of COVID-19 and to otherwise support the purposes of the Act”. The Court then considered the Government’s Guidelines for Places of Worship which explained the application of the Order in the context of places of worship.
The Court then considered the relevant human rights instruments which the Applicants claimed were breached namely ss 13 and 15, New Zealand Bill of Rights Act 1990; Art. 18(1) International Covenant on Civil and Political Rights (ICCPR); and Art 9(1) of the European Convention on Human Rights (ECHR). The Court noted that these rights are limited in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others as provided in Art 18.3 ICCPR and Art 9(2) ECHR.
The Court acknowledged the limited New Zealand case law on the rights to freedom of thought, conscience, religion and belief and to manifest religion or belief. The Court referred to a case in relation to a health professional’s conscientious objection to providing pregnancy termination services or advice and a case in relation to workers’ objections to receiving the COVID-19 vaccination on the basis that it had been tested on cells derived from a possibly aborted human foetus. The Court acknowledged the varied faiths represented by the Applicants and acknowledged the shared belief of the importance of physical gathering together of members of a congregation for worship as a matter of religious obligation. Furthermore, it was also acknowledged that for the Christian faith, this is a duty commanded by God.
Ultimately the role of the Court in this matter was to decide whether the restrictions were a demonstrably justified limitation of the Applicants’ rights under section 5 of the New Zealand Bill of Rights Act 1990. The Court had reference to the “precautionary principle” which was formulated in 2006 in response to the SARS pandemic. This principle effectively means that actions taken to reduce risk to the public should not wait for scientific certainty. In this case, the Court found that the relevant Minister was entitled to take a cautious approach in considering COVID-19 related restrictions.
As to whether the limitation of the right to manifest religion was demonstrably justified, the Court had regard to the approach as set out in Hansen v R  NZSC 7,  3 NZLR 1 which adapted the approach of the Canadian Supreme Court in R v Oakes  1 SCR 103. This test in summary requires the Crown to demonstrate that any limiting measure is prescribed by law, serves a sufficiently important purpose to warrant limiting a right or freedom and the means chosen to limit the right must be proportionate to the importance of that purpose.
The Court concluded that gathering limits did ultimately prevent the ability of the COVID-19 virus to spread in the community and this purpose was sufficiently important to justify some restriction of the right to manifest religion. Therefore the limits imposed by the Order and the resulting infringement of the Applicants’ right to manifest their religion was demonstrably justified.
Conclusions of the deciding body
The Court held that the measures in the Order did limit and restrict the Applicants’ rights and freedoms under s 15 of the Bill of Rights Act however that the measures were a justified limit on those rights and freedoms, both at introduction and after the Omicron variant was circulating in New Zealand and finally that the Minister did not act unreasonably.
Fundamental Right(s) involved
- Freedom of association, Public gathering, Assembly
- Freedom of expression
- Freedom of religion
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Freedom of Religion and Manifestation of that Religion, ss 13 and 15, New Zealand Bill of Rights Act 1990
- Freedom of Religion and Manifestation of that Religion, Art. 18(1) International Covenant on Civil and Political Rights
- Freedom of Religion and Manifestation of that Religion, Art 9(1), of the European Convention on Human Rights
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. freedom of association / public gathering
- Health v. freedom of religion
General principle applied
- Due process
Balancing techniques and principles (proportionality, reasonableness, others)
The Court applied the precautionary principle as it related to public health and public safety which was formulated in 2006 with the SARS pandemic. This approach supported action taken by a public health authority for the purposes of reducing the risk of transmission within the broader community without the need to wait for scientific certainty. The Court considered that the overall objective for the Order was to limit transmission of the COVID-19 virus in the general community and the actions taken were in proportion to this objective. Furthermore the restrictions imposed on public gatherings for worship were temporary (four months) and reasonable considering the country was facing the worst public health emergency in over one hundred years.
On the type of scope (material scope): The High Court is New Zealand’s only court of general jurisdiction