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New Zealand, High Court of New Zealand, 28 October 2021, NZHC 2897‎

Case overview

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Country
New Zealand
Case ID
NZHC 2897‎
Decision date
28 October 2021
Deciding body (English)
High Court of New Zealand
Type of body
Court
Type of Court (material scope)
The High Court of New Zealand is a court of general jurisdiction
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Federal Court
Instance
Application for Judicial Review
Area
Scope of powers of public authorities (legislative, executive etc.)
Outcome of the decision
Claim upheld
Link to the full text of the decision
Decision_EN available on www.courtsofnz.govt.nz

Case analisys

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
Federal government measure
Measures, actions, remedies claimed
To set aside and remit back to the decision-maker for ‎reconsideration.
Individual / collective enforcement
Individual action brought by one or more individuals or legal persons exclusively in their own interest.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Public
Type of procedure
Ordinary procedures
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. ‎

Balancing Fundamental Rights and Fundamental Freedoms

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)
Freedom of movement, s 18, New Zealand Bill of Rights Act 1990‎
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.‎

Authors of the case note
  • Solicitor‎ Kirsty Mackie, Research Assistant, Australian Centre for Health Law Research, Queensland University of Technology‎
  • Professor Belinda Bennett, Chief Investigator, Australian Centre for Health Law Research, Queensland University of Technology‎
Case identified by
Lecturer Muhammad Zaheer Abbas‎, Australian Centre for Health Law Research, Queensland University of Technology‎
Published by Chiara Naddeo on 29 June 2022

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