Bankside Barrister Simon Foote QC succeeds in important freedom of movement case arising from COVID-19 lockdown powers

A number of civil liberties issues have arisen in relation to COVID-19 restrictions both in New Zealand and elsewhere.  Lord Jonathan Sumption, a famous English jurist and former UK Supreme Court Judge said in a controversial recent Daily Mail article that “COVID-19 is not the greatest crisis in our history … but the lockdown is without doubt the greatest interference with personal liberty in our history”. [1]

So it was perhaps not surprising that New Zealand’s lockdown rules would come under scrutiny against the background of the right to freedom of movement guarantees by Article 18 of the New Zealand Bill of Rights. [2]

In Christiansen v Director General of Health [2020] NZHC 887 Mr Christiansen challenged the decision of the Director General of Health to refuse to allow him to cut short his mandatory 14 day lockdown isolation to see his dying father.  The facts of the case were summarised by High Court Justice Walker as follows:

“[2]       The context is New Zealand’s response to the COVID-19 crisis.  Mr Christiansen arrived in New Zealand on 23 April 2020 on a flight from the United Kingdom.  He was placed in ‘managed isolation’ in a city hotel as directed under the Health Act (Managed Air Arrivals) Order dated 9 April 2020 (the Order).1  The hotel at which he resided is apparently designated a low-risk isolation facility.  He has no symptoms of COVID-19 and is monitored by health professionals at the facility every two days.

[3]        His father was diagnosed with brain cancer in January 2020.  The initial prognosis was that his father would decline over a relatively lengthy period.  However, by mid-April, the prognosis changed.  Mr Christiansen learned that his father had only a few weeks to live.  He decided to leave his family in London and return to New Zealand to sit out the quarantine, and then spend his father’s last days with him.  Sadly, his father’s condition declined suddenly and dramatically.  The medical evidence was that his father will survive for no more than a few days, perhaps to the end of the weekend.2

[4]        Mr Christiansen applied to the Ministry of Health for an exemption to permit him to travel from the city hotel to the family home where his father is spending his last days.  There is no suggestion before me that his father would be going to the hospital.  The other family members either at the family home or visiting are Mr Christiansen’s mother and two sisters.  A palliative care nurse attends for a short period daily.  The family ‘desperately’ supported the application.

The Health Act (Managed Air Arrivals) Order was made on 9 April 2020 and amended on 21 April 2020.  The amendments are not material to this application save that the Order was extended to 11.59 pm on 11 May 2020.

The medical evidence is from an oncologist treating his father and his father’s GP.  It is understandably not challenged.

[5]        Mr Christiansen’s evidence is that he asked for a test for COVID-19 but was refused because he has no symptoms.

[7]        Mr Christiansen was prepared to comply with any conditions required by the Ministry of Health, such as travelling to his father’s residence in a private car, ensuring any necessary cleaning and/or quarantining of the vehicle, staying at his father’s home and not leaving it at all for any reason until the expiry of a 24-hour period after his father dies and then returning to managed isolation, and wearing appropriate PPE as directed.”

Mr Christiansen challenged three Ministry of Health decisions declining him permission to leave quarantine before expiry of the 14 days, all of which were justified on the basis of exemption categories set out on the Covid-19 website (none of which addressed Mr Christiansen’s situation), but did not consider the broader discretion available under the relevant Health Act Order which permitted early release from isolation on compassionate grounds or in exceptional circumstances.

The Judge was concerned to accord the “appropriate deference to the expertise of the decision makers in a time of unprecedented public crisis”, but no matter how justified the COVID-19 response, “[government] decisions must have a clear and certain basis.” Indeed, the Judge commented, in these extraordinary times, the “nature of the fundamental rights at issue, the wide-ranging powers under the Health Act and the current crisis all support, if not demand, more expansive supervision by the Courts.”

Justice Walker found that the Officials’ decisions failed to consider the proper grounds for exemption (and in particular, applying the website criteria, rather than the actual Order), amounted to an error of law.  In addition the failure to address the proper grounds amounted to a failure to address a mandatory relevant consideration. The primary flaw in the Ministry’s decision making was to take a rigid approach to a broad discretion:  “A decision-making public body entrusted with a decision must not adopt rigid rules that disable it from exercising discretion in individual cases. … It is unlawful to blindly follow a policy if that policy is not reflective of the actual position in law.”

Had the proper approach been followed, Mr Christiansen’s applications may well have been successful on compassionate grounds or in view of the exceptional circumstances. But the decisions were not based on the correct legal grounds and did not take account of mandatory considerations. In fact, Justice Walker concluded, the decisions “had the hallmarks of automatic rejection based on circumscribed criteria rather than a proper exercise of discretion required by the Health Act Order.”

Based on Mr Christiansen’s more than arguable case, the Court granted interim orders to prevent the Ministry from enforcing the restrictions and allowing Mr Christiansen to travel, under strict conditions.  Her Honour concluded by saying that “this exceptional case demands an effective and swift response by the Court to achieve overall justice … particularly the immanence of Mr Christiansen’s father passing …”  The urgency and swiftness with which the Judge made her undoubtedly correct decision was both impressive and apposite.  Mr Christiansen was granted his request to travel on the Friday;  Mr Christiansen senior passed away at home surrounded by family only 36 hours later.

This decision highlights the importance of the role of the judiciary and legal practitioners as a check on government decision making, particularly in times of hastened law making and extraordinary executive powers necessarily adopted in a national emergency.

Reported by Sir David AR Williams QC

[1] Freedom of Movement, Lord Jonathan Sumption, Daily Mail, May 24, 2020.

[2] NZ Bill of Rights, Article 18.