Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
Outcome of the decision
The Plaintiff’s challenge to the legality of the early lockdown took the form of judicial review proceedings brought against the Director-General of Health and the Attorney-General. The Plaintiff sought for three matters relating to the Government’s initial COVID-19 response to be declared illegal. The first focused on the public announcements made by the Prime Minister and other officials during the first 9 days of the lockdown. The second challenge focused on three orders made under the Health Act 1956 by the Director-General of Health on the 26th of March (Order 1), the 3rd of April (Order 2), and the 27th of April (Order 3). And the third challenge related to the definition of “essential services” as contained in Order 1.
Answering the first point, the Court said that as well as declaring that the requirement to stay at home was not, for those first nine days, required by law and neither so in breach of the New Zealand Bill of Rights Act, the requirement was, otherwise, a necessary, reasonable, and proportionate response to the COVID-19 crisis at the time. Furthermore, the Court affirmed that, after the Order 2 came into effect on the 3rd of April 2020, the problem was corrected. On the second point, the Court rejected the Plaintiff’s specific challenges to the Orders. On the third point, the Court reviewed the wording of “essential services” and the evidence about how the Minister of Business, Innovation and Employment determined what was and what was not an essential service and concluded that there was no assigning and no breach of the rule of law.
Facts of the case
By various public announcements made between the 26th of March and the 3rd of April 2020 in response to the COVID-19 public health crisis, members of the executive branch of the New Zealand Government stated that, for that nine-day period, subject to limited exceptions, all of the population of New Zealand was compelled by law to stay at home and in their “bubbles” when there was no such requirement. Those declarations had the effect of limiting certain rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 including the rights to freedom of movement, peaceful assembly, and association.
In these proceedings, the Plaintiff challenged the lawfulness of the restrictions imposed by the New Zealand Government on all people present in this country from 11:59 pm on Wednesday the 25th of March 2020 until 11:59 pm on Wednesday the 13th of May 2020, in response to the COVID‐19 outbreak.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
First, The Court concluded that, reasonably interpreted, the statements conveyed that New Zealanders were required to stay at home and in their “bubbles” when that was not, in fact, the legal position. So, until Order 2 came into effect those restrictions were not required by law and, accordingly, an unlawful limit on the relevant rights and freedoms of the New Zealand Bill of Rights Act (NZBORA). But the Court found that although rights were limited by the requirements, the statements did not purport to “suspend” or stop the operation of any law.
Second, the Court considered the context: the timeline of COVID-19’s spread, New Zealand’s international obligations to protect public health, and the nature and history of the s 70 emergency powers. The Court concluded that all those matters reinforced the need for a liberal interpretative approach and the principle that the section is to be read as applying to circumstances as they arise. The Court also confirmed that the s 70 powers clearly contemplate the restriction of fundamental rights in a public health emergency and rejected the Applicant’s contention that their scope should be limited by reference to the NZBORA (New Zealand Bill of Rights Act).
Third, The Court reviewed the definition of “essential services” within Order 1 and the evidence about how the Minister determined what was and was not an essential service. The Court held that in Order 1 the Director-General of Health broadly, but lawfully, defined essential services as: “businesses that are essential to the provision of the necessities of life and those businesses that support them”. That definition was always clear and fixed. The Court concluded that the function of the Minister and the website list was interpretive and advisory only. Only the Director-General of Health, could change the definition; the Minister’s job was to apply it. There was therefore no delegation and no breach of the rule of law.
Conclusions of the deciding body
The second cause of action and the third cause of action failed and were dismissed. The first cause of action succeeded in part, but after Order 2 came into effect on the 3rd of April 2020, the problem was corrected.
Fundamental Right(s) involved
- Freedom of association, Public gathering, Assembly
- Freedom of movement of people, goods and capital
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Freedom of peaceful assembly, s 16 New Zealand Bill of Rights Act
- Freedom of association, s 17 New Zealand Bill of Rights Act
- Freedom of movement, s 18New Zealand Bill of Rights Act
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 peaceful assembly
General principle applied
- Rule of law
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court affirmed that even in times of emergency and even when the merits of the Government response are not widely contested, the rule of law matters.
The Court agreed that, although not required by law, the limits were nevertheless reasonable, necessary, and proportionate.
-Fowler and Rodrique Ltd v Attorney-General  2 NZLR 56 (CA) at 78
-F E Jackson & Co Ltd v Collector of Customs  NZLR 682 (SC) Air Nelson Ltd v Minister of Transport  NZCA 26
-Wilson v New Zealand Parole Board HC Christchurch CIV-2010-409-459, 22 April 2010 at ; and Wilson v New Zealand Parole Board HC Christchurch CIV-2010-409-2933
Impact on Legislation/Policy
The governmental measures have been upheld.