New Zealand, High Court of New Zealand, 28 October 2021, NZHC 2897
Case overview
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Deciding body (English)
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Type of Court (material scope)
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Type of Court (territorial scope)
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Outcome of the decision
Link to the full text of the decision
General Summary
The applicants sought an exemption from the requirement to isolate in a government approved facility on their return from overseas, as required by the COVID-19 Public Health Response (Isolation and Quarantine) Order 2020, and sought permission to isolate at home. Their application was denied and the applicants sought judicial review. The applicants raised 4 causes of action in relation to the consideration of the Isolation and Quarantine Order and the failure to properly consider the matters raised in the applicant’s application.
Remedies sought: a declaration that the decision was unlawful and an order permitting them to self-isolate at home, or in the alternative, a direction that the matter be reconsidered and take into account all the matters raised in the application. Relevant rights are freedom of movement under s 18 New Zealand Bill of Rights Act 1990. The Court upheld the application and the request for an exemption was remitted to the decision-maker for reconsideration.
Facts of the case
The applicants sought judicial review of a decision to decline their application to quarantine at home on their return to New Zealand instead of in a managed quarantine facility. One of the applicants is a 73-year-old successful businessman with business interests in New Zealand and overseas. The applicants planned to travel to the US for a board meeting.
The application for judicial review raised 4 causes of action:
1. Error of law – the Minister misconstrued clause 12 of the Isolation and Quarantine Order by only considering medical needs of the applicant;
2. Failure to consider the actual grounds of the exemption and other relevant considerations;
3. That the Ministry’s interpretation of clause 12 is inconsistent with the New Zealand Bill of Rights Act and has no effect; and
4. The decision was unreasonable in light of the matters raised in the application.
In relation to cause 1 the Court held that the decision-maker should have considered needs other than medical needs with reference to clause 12 and such a limited approach to interpreting clause 12 resulted in an error of law. In relation to cause 2 the Court held that the decision-maker failed to take into account other relevant considerations. The Court did not consider it necessary to discuss the final two causes of action.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court held there was an error of law in that the decision-maker adopted an overly narrow interpretation of Clause 12 of the Isolation and Quarantine Order. The decision-maker only considered the health needs of the applicants and did not consider other reasons the applicants raised for seeking an exemption. In addition, the Court held that the decision-maker failed to take into account relevant considerations, including the applicants’ proposals for self-isolation, and the context relating the spread of COVID-19 in New Zealand.
The Court considered that the limits to freedom of movement by requiring returning travellers to isolate and quarantine may be justified to reduce the spread of COVID-19 but identified the difference between requiring isolation at a facility and requiring isolation in a private home. The Court supported an interpretation of the isolation requirement in a way that minimized the restrictions on rights such as freedom of movement. The Court indicated that the legislative objectives can be met if the decision-maker can be satisfied that the applicants’ needs can be met by the applicants self- isolating in their own home, subject to conditions that they also prevent and limit the risk of spreading COVID-19. Clearly, if the decision-maker cannot be satisfied as to these conditions, then the application could have been declined. The Court stressed it was a matter of balancing competing considerations.
Conclusions of the deciding body
The Court upheld the first two causes of action and did not feel it necessary to consider the other two. The Court remitted the decision back to the decision-maker expressly requiring it to consider relevant considerations, including s 18 of the New Zealand Bill of Rights Act namely freedom of movement, and to balance these considerations against the risk to the community of the spread of COVID-19 if the applicants isolated other than at a managed quarantine facility.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Freedom to re-enter the country of residence without unreasonable limitation
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. freedom to conduct a business
General principle applied
- Proportionality
- Reasonableness
Balancing techniques and principles (proportionality, reasonableness, others)
The Court supported adopting a balancing approach as s 5 of the New Zealand Bill of Rights Act (which provides for a justified limitation on relevant rights) required a form of proportionality analysis in the context of the decision that was being challenged.
