In October 2021, a woman from Ohakune flew to Auckland to join a protest against COVID-19 restrictions, violating the lockdown measures in force in New Zealand at the time.
The woman was charged with breaching an order issued under the COVID-19 Public Health Response Act. Indeed, she had failed to comply with Order (No 12) 2021 which, among other things, prohibited travelling to Alert Level 3 areas (such as Auckland) for purposes not allowed by the Order. Travelling to attend a political protest did not constitute a valid reason.
On 18 July 2022, the Taihape District Court decided for the woman’s conviction and discharge, meaning that she was found guilty of the offence, but no penalty was imposed.
The woman appealed the judgment, holding that the judge had made an “error of law”. According to the defendant, the District Court had failed to consider her “freedom of expression” (s. 14 NZ Bill of Rights Act 1990) and “right to peaceful assembly” (s. 16 NZBORA) as grounds for excluding any criminal liability.
With regards to the appellant’s freedom of expression, the High Court held that it had not been violated, since she could have still protested against COVID-19 measures without travelling across Alert Level borders.
Instead, the right to peaceful assembly was limited by the Order, even if not entirely. Indeed, the woman could still gather with other people in her home area. Moreover, the judge deemed such limitation to be consistent and proportionate to the purpose of the Order: the protection of public health. Therefore, her right to peaceful assembly could not be read as an exemption from criminal liability.
Thus, the High Court held that the first instance judge had not made any error of law and dismissed the appeal.