Introduction

On 1 May 2020, the High Court issued a decision (1) on a judicial review application which challenged the lawfulness of exemption decisions made pursuant to an order under s70(1)(f) of the Health Act 1956 and sought urgent interim relief. The particular decisions challenged were refusals of a request by the applicant for exemption from mandatory self-isolation in order to visit his dying father. The decision was the first consideration by the High Court of the lawfulness of actions taken in the course of the exercise of the sweeping powers assumed by the Government in response to the COVID-19 pandemic.

Interim relief was granted. The High Court considered that it was strongly arguable that the decisions to refuse an exemption were legally flawed on more than one basis. The decision suggested that, if the correct approach been followed, the application might have been granted.

 

[1] Christiansen v the Director General of Health [2020] NZHC 887

Background

Following the classification of COVID-19 as an infectious disease for the purposes of s70(1) of the Health Act 1956 and the issuing of an epidemic notice on 24 March 2020, the Director General of Health was empowered to issue the Health Act (Managed Air Arrivals) Order (“Order”) for the “medical examination and testing and isolation or quarantining requirements to apply to all persons arriving by air.” The Order provided that all persons arriving in New Zealand by air must be isolated or quarantined for a minimum of 14 days “except as permitted for essential personal movement on arrival.”

The applicant’s father was diagnosed with brain cancer in January 2020. Whilst the prognosis was originally that he would decline slowly over a lengthy period, it changed in mid-April and, as a result, the applicant returned to New Zealand from the United Kingdom to see his father. He arrived in New Zealand on 23 April 2020 and was place in ‘managed isolation’ pursuant to the Order. Whilst in managed isolation, his father’s condition deteriorated rapidly. The applicant applied to the Ministry of Health for an exemption to permit him to leave managed isolation in order to visit his father and to remain with him until his death.

The request was refused after three separate considerations as follows:

(a)  a decision on 27 April 2020 by the Deputy Director COVID-19;
(b)  a second decision on 27 April 2020 by the Managed Isolation Team; and
(c)  a third decision on 30 April 2020 by the National Coordinator.

All decisions were made under the delegated authority of the Director General of Health, the nominated respondent, and each was made on the basis that the applicant did not meet the criteria for an exemption which was thought to be limited to medical transfers or treatment for serious medical conditions. The applicant sought substantive judicial review of the decisions and urgent interim relief permitting him to visit his dying father.

Judicial Review

Judicial review under the Judicial Review Procedure Act 2016 aims to provide a single procedure for the review by the High Court of the exercise of a statutory power.

Statutory power is broadly defined and includes a power or right conferred by primary or subordinate legislation to exercise a statutory power of decision. The available grounds of judicial review tend to overlap. The principal grounds include exceeding or abusing the power conferred (which includes improper purpose and having regard to irrelevant considerations or failing to have regard to relevant considerations), error of law (including both errors in the decision to inquire and errors made in the course of the decision-making process which affected the decision itself), unreasonableness (in the sense that the decision  is one that no reasonable decision maker could have reached) and breach of natural justice (which relates to the fairness of the process).

Importantly, the High Court may make interim orders, under section 15 of the Judicial Review Procedure Act 2016, if it is satisfied that they are necessary to preserve the applicant’s position before final determination. Although the purpose of s15 is generally to preserve the position of the applicant, not to improve it, it has been held that, in appropriate cases, interim relief can encompass orders which would place applicants in the position they would have been in but for the alleged illegality (and thereby, in a practical sense, determine the outcome).

The application

The judicial review application raised three grounds of challenge, the first being that there were errors of law in four respects;

(i)  misinterpreting the grounds on which the application for exemption had been made;
(ii)  misinterpreting the scope of the power under the Order to grant exemptions from mandatory isolation;
(iii) confining the possible exemptions to excessively narrow grounds when broader grounds were available under the Order; and
(iv) declining the application for failure to meet those narrow grounds.

The second ground alleged failure to consider mandatory relevant considerations including;

(i)   the actual grounds on which the application was made;
(ii)  section 5(g) and 5(i) of the Order (see below);
(iii) the health of both the applicant and his father;
(iv) the ability, provided under subclause (1) of the Order, to test the applicant for COVID-19;
(v) the low risk of transmission associated with the requested exemption; and
(vi) the negligible impact, if any, of the risk.

The Order itself contained the following provisions:

5(g)Authorised Travel

(g) a person leaving their place of isolation or quarantine to undertake travel that is permitted under a framework approved by the Director General (and published on the covid19.govt.nz internet site maintained by the New Zealand government for travel) that is appropriate both –

So as to enable persons entering New Zealand to travel to their intended residence after they cease to be isolated or quarantined under clause 1 of this order or on other compassionate grounds; and

On the basis that it has relatively low risk of transmission or otherwise reduces the overall risk of outbreak or spread of COVID-19 for New Zealand’s health system.

5(i) Exceptional Circumstances

(i) a person leaving or changing their place of isolation or quarantine for any other exceptional reasons approved by the Director General after taking into account any impact on the risk of outbreak of spread of COVID-19

 

Clause 5(g) thus referred explicitly to “other compassionate grounds” and clause 5(i) referred to “other exceptional circumstances”, but neither provision appeared to have received any attention by the decision makers.

The third ground raised was unreasonableness.

Because of inherent underlying urgency, while the proceeding sought a substantive declaration that the decisions were unlawful, invalid and of no legal effect, interim relief to give an immediate exemption from managed isolation was sought.

The Decision

The applicant argued that the Order impliedly required consideration of the specific circumstances of each individual application – a weighing of the compassionate circumstances with the risk of the transmission in that particular case. The decision makers had failed to do so by confining themselves to whether the circumstances fitted any of the criteria in the framework on the government website. They had simply applied a set of fixed rules, the very antithesis of discretion.

The respondent’s opposition principally rested on the argument that the Court could, or at least ought, not make an interim order because the decision was then the subject of further reconsideration.

The central substantive question was whether the respondent had misinterpreted the powers under the Order. As powers must be exercised within the parameters set by law, a decision maker who applies an unwarranted gloss to a statutory test or asks itself the wrong question may commit an error of law.

The High Court considered that it was strongly arguable that that the decision makers had construed the exemption test too narrowly, omitting any consideration of two available grounds in the Order. The exemption application had been repeatedly refused on the basis that exemptions could only be granted to those requiring medical transfer or with serious medical conditions, consistent only with the four narrow grounds for exemptions appearing on the COVID-19 internet site.

A body entrusted with making a decision must not adopt rigid rules that effectively disable its ability to exercise the conferred discretion. The framework on which the decisions had been based did not reflect the wording of the empowering Order. It would be an error of law to blindly follow a policy that did not reflect the correct legal position.

On the face of the record, it was strongly arguable that the decisions failed to consider the substance of the additional tests in 5(g) and 5(i), potentially amounting to a failure to address mandatory relevant considerations.

The High Court noted the very high threshold for a finding of unreasonableness.  In the light of its findings in respect to the grounds of error of law and failure to consider relevant considerations, it was not necessary to consider further the ground of unreasonableness. 

The Court considered the jurisdictional limitations relating to the granting of interim relief but held that the fact that a grant of interim relief would effectively or practically determine the proceeding did not present an insurmountable hurdle.

The Judge balanced other factors in the exercise of the discretion to grant interim relief. While she considered it appropriate to show deference to the expertise of decision makers during an unprecedented public crisis, their decisions must still have “a clear and certain basis” and be “proportionate to the justified object of protecting New Zealand bearing in mind the fundamental civil right in issue.”

The judgment concluded that the merits strongly favoured the applicant with the decisions to decline the exemption being, “on their face, legally flawed on more than one basis”. The judge suggested that, if the correct approach been followed, the application may have successfully come within the available compassionate grounds.

The High Court granted interim relief in the form of an order which required the Director General of Health to permit the applicant to leave Managed Isolation prior to the end of the mandatory 14-day period for the purpose of visiting his terminally ill father. A number of conditions relating to how the exemption was to be carried out were imposed.

Conclusion

The decision highlights the importance of judicial review as a check on the exercise of executive decision-making powers, including under delegated authority, even in unprecedented circumstances of national concern.

While the decision was both interim and necessarily confined to the specific facts of the case, it was said to have resulted in an internal review of all similar decisions by the Ministry of Health. It is to be hoped that the result has been of benefit to at least some of those who received decisions made by following the original rigid framework.

It would not be surprising to see other judicial review applications in subsequent months which challenge other decisions made under urgency using statutory powers exercised in response to the global pandemic. Since Christiansen, there have been at least two further judicial decisions relating to challenges to the lawfulness of decision making in response to the pandemic. Borrowdale v Director General of Health [2020] NZCA 156 was a decision on an unsuccessful application to transfer a judicial review proceeding challenging the lockdown orders on the grounds of ultra vires directly to the Court of Appeal, holding that the proceeding should be heard at the High Court in first instance in the usual manner. A v Ardern [2020] NZCA 144 was an unsuccessful appeal against refusals to issue of writs of habeas corpus on the grounds that the Alert Level lockdown restrictions amounted to unlawful detention of the applicants .”