Borrowdale v Director-General of Health

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA520/2020
[2021] NZCA 520

BETWEEN	ANDREW BORROWDALE Appellant
AND	DIRECTOR-GENERAL OF HEALTH First Respondent ATTORNEY-GENERAL Second Respondent NEW ZEALAND LAW SOCIETY Intervener

Hearing:	6–7 July 2021
Court:	French, Cooper and Collins JJ
Counsel:	J A Farmer QC and L C A Farmer for Appellant U R Jagose QC and V McCall for Respondents T C Stephens, J B Orpin-Dowell and M R G van Alphen Fyfe for Intervener
Judgment:	2 November 2021 at 2.00 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThere is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

PART I

INTRODUCTION

Questions addressed by this appeal

Two questions are addressed in this judgment. The first asks whether s 70(1)(f) and (m) of the Health Act 1956 (the Act) allowed the Director-General of Health (the Director-General) to issue three Orders that required:
(a)all premises in New Zealand to be closed except those referred to as “essential businesses”;[1]
(b)people not to congregate in outdoor places unless they maintained “physical distancing”;[2]
(c)all people to remain at their place of residence except as permitted.[3]
[1]This was contained in the First Health Act Order. We explain how “essential businesses” were defined at [6] and [72(d)] below.
[2]This was contained in the First Health Act Order. We explain how “physical distancing” was defined at [7] and [72(e)] below.
[3]This was contained in the Second and Third Health Act Orders. We explain the exceptions at [8]–[9] and [78] below.
The second question asks whether the Director-General unlawfully delegated to other officials the decisions concerning what businesses could remain open pursuant to the Orders he made under s 70(1)(m) of the Act.
The Orders in question came into force on 25 March, 3 April and 27 April 2020 and were an integral part of New Zealand’s effort to prevent the outbreak and spread of COVID-19.

The statutory powers

We shall examine s 70(1)(f) and (m) of the Act in Parts II and III of this judgment. At this juncture we set out the key parts of those subsections in order to provide context to the two questions we have explained at [1] and [2]:
70 Special powers of medical officer of health
(1)For the purpose of preventing the outbreak or spread of any infectious disease, the medical officer of health may from time to time, if authorised to do so by the Minister or if a state of emergency has been declared under the Civil Defence Emergency Management Act 2002 or while an epidemic notice is in force,—
…
(f)require persons, … to be isolated, quarantined, … as he thinks fit:
…
(m)by order …
(i)require to be closed, until further order or for a fixed period, all premises within the district (or a stated area of the district) of any stated kind or description:
…
(iii)forbid people to congregate in outdoor places of amusement or recreation of any stated kind or description (whether public or private) within the district (or a stated area of the district):
…

The Orders

In the following four paragraphs we shall provide a summary of the three Health Act Orders in issue. A more detailed explanation of the Orders is provided at [72] to [80].
The First Health Act Order, which cited s 70(1)(m) of the Act, required the closure of all premises in New Zealand except for those that were listed in the appendix to the Order. Included in the appendix were “essential businesses”, which were said to be businesses that were essential to the provision of the “necessities of life” and those businesses that supported them, “as described on the Essential Services list on the covid19.govt.nz internet site maintained by the New Zealand government”.
The First Health Act Order also prohibited people from congregating in outdoor places of amusement or recreation throughout New Zealand. Congregation did not, however, include people practising “physical distancing”, which was defined in the appendix as “remaining two (2) metres away from other people, or if you are closer than two (2) metres, being there for less than 15 minutes”.
The Second Health Act Order, which cited s 70(1)(f) of the Act, required, until further notice, all persons in New Zealand to be isolated or quarantined by remaining in their current place of residence, except as permitted for essential personal movement. It also required all persons to maintain physical distancing, except from their fellow residents or to the extent that was necessary to access or provide an essential business.
The Third Health Act Order cited s 70(1)(f) and (m) of the Act. That Order revoked the two previous Orders and required all persons in all regions to be isolated or quarantined by remaining at their current place of residence and to maintain physical distancing, with exceptions that were in all material respects the same as under the Second Health Act Order. Clause 7 of the Third Health Act Order also specified instances of permitted essential personal movement. Clause 9 of the Third Health Act Order required the closure of “restricted premises” with exceptions where “necessary work” was being undertaken. Clause 11 prohibited congregating in outdoor places of amusement or recreation.

The High Court proceedings

In his third amended statement of claim dated 1 July 2020, Dr Borrowdale pleaded three causes of action.

First cause of action

The first cause of action focused upon statements made by the Prime Minister and other officials prior to and during the first nine days of lockdown. Those first nine days refer to the period between 25 March 2020 when the First Health Act Order came into effect and 3 April 2020 when the Second Health Act Order came into effect. We need not reiterate in this judgment the statements referred to in the first cause of action.[4] Suffice to say they were to the effect that New Zealand citizens needed to stay at home and that enforcement action would be taken against those who breached the Government’s directions. Thomas, Venning and Ellis JJ, sitting as a Full Bench of the High Court, held that the First Health Act Order did not go as far as to require New Zealanders to stay at home, so the statements were made without lawful authority and unlawfully limited the rights affirmed by ss 16, 17 and 18 of the New Zealand Bill of Rights Act 1990 (the NZBORA).[5] The High Court issued a declaration to that effect.[6] There has been no cross-appeal by the Crown from that aspect of the High Court judgment.

Second cause of action

[4]These statements are set out in the High Court judgment. See Borrowdale v Director-General of Health [2020] NZHC 2090, [2020] 2 NZLR 864 [High Court judgment] at [148]–[173].

[5]At [197]–[199] and [225]. We explain all relevant sections of the New Zealand Bill of Rights Act 1990 (the NZBORA) below at [104]–[120].

[6]At [291].

The second cause of action challenged the lawfulness of the three Health Act Orders we have summarised at [6] to [9] on the basis that the Director-General exceeded his powers under s 70(1)(f) and (m) of the Act. The allegation in the second cause of action was that the three Health Act Orders were ultra vires.
There were five elements to the second cause of action, namely:
(a)The powers in s 70 could not be exercised by the Director-General because s 22 only conferred on the Director-General the functions (and not the powers) of a Medical Officer of Health.
(b)The special powers contained in s 70 of the Act cannot be properly exercised on a national basis.
(c)The power to require quarantine and isolation in s 70(1)(f) can only be exercised in relation to individuals rather than the entire population.
(d)The power in s 70(1)(m) of the Act to close premises of “any stated kind or description” does not permit all premises to be closed subject only to specified exceptions.
(e)The power to forbid people to “congregate” in s 70(1)(m) does not allow exceptions for social distancing.
Dr Borrowdale accepted, however, that had the restrictive measures been prescribed by law, then they would have been reasonable limits on the relevant NZBORA rights that were demonstrably justified in a free and democratic society in accordance with s 5 of the NZBORA.
The High Court held that all three Health Act Orders were authorised by either s 70(1)(f) or (m) of the Act and therefore dismissed Dr Borrowdale’s application for a declaration that the three Orders were ultra vires.[7]

Third cause of action

[7]At [139].

The third cause of action focused upon the exception to the First Health Act Order. As we have noted at [6], that Order required the closure, until further notice, of all premises within New Zealand except those that were used for “essential businesses”, defined by reference to businesses that provided the necessities of life.
Dr Borrowdale argued that this aspect of the First Health Act Order involved an unlawful delegation by the Director-General of his powers to determine what were “essential businesses” because, he argued, the determination as to what businesses provided the necessities of life was made by other government officials and not by the Director-General.
The High Court concluded that only part of the definition of essential businesses “should be regarded as forming part of the core definition” in the Order.[8] The part of the definition that referred to the COVID-19 Government website was said by the High Court to be merely “advisory”.[9] From this position the High Court reasoned that only the Director-General had determined what constituted essential businesses and that “[t]here was no delegation … and no breach of the rule of law”.[10]
[8]At [268].
[9]At [268].
[10]At [279].
Dr Borrowdale appeals the findings in relation to the second and third causes of action. The first ground of appeal reiterates in slightly different ways the arguments that we have summarised at [13(c)–(e)]. The second ground of appeal contends the High Court erred when it decided the Director-General did not unlawfully delegate his powers to determine what constituted necessities of life for the purposes of assessing whether or not premises needed to be closed.
The New Zealand Law Society (the Law Society), which appeared as an intervener, supports the High Court’s conclusion in relation to the first ground of appeal but argues in relation to the second ground of appeal there may have been an unauthorised delegation by the Director-General.
Before engaging with the two grounds of appeal, we shall set out the background and explain the relevant legislation.

PART II

BACKGROUND

The emerging pandemic

Between late 2019 and early 2020, a new highly contagious and potentially lethal respiratory virus was detected in Wuhan, China. Initially health officials called it “novel coronavirus”. On 11 February 2020 the World Health Organisation (WHO) announced from that day forward the virus would be called COVID-19.
Dr Bloomfield, the Director-General, has explained in an affidavit that New Zealand’s response to COVID-19 reached a critical juncture on the weekend of 21–22 March 2020. At that time there were 292,142 confirmed cases of COVID-19 in the world and 12,783 people had died from the virus.
The unprecedented public health, social and economic challenge faced by New Zealand officials during the first months of COVID-19 has been described in the following way by the Director-General:
The timeline of what happened was almost like a wave coming in: we could see it emerging in the distance during January and started watching carefully. In February the wave grew bigger and came closer: we started putting in place border protections and preparing the health system to deal with outbreaks. By March we were realising that this threat was unprecedented, and if the virus got established in New Zealand it would be catastrophic – there would be many cases and deaths, the health system would be overwhelmed and the impact on society and the economy would be appalling. We made the call that we did not have the option of “coping” with the virus as envisaged in the “manage it” phase of our pandemic plan:[11] our only option was a prolonged effort to keep it out and stamp it out. Furthermore it was clear that decisions needed to be made quickly and pre-emptively, hence the “go hard, go early” approach.
Then came a tipping point around the weekend of 21 – 22 March: modelling coming in from experts, both in New Zealand and around the world, was showing that once community transmission took hold, we would lose our window to stamp out the virus, that there would only be one shot at this. At the same time, we were getting our first confirmed community transmission cases. We realised that “go early” had changed to “go right now”, and there was no time left. What we thought could be done in two weeks or two days had to happen now: it was quite literally now or never. Hard decisions were required, and we made them, as it was now clear that this was the best – in fact the only – way to protect the health and well-being of New Zealanders, prevent our health system being overwhelmed, and avoid prolonged damage to our economy.
[11]Explained below at [34].
At [26] to [83] we shall provide an overview of the COVID-19 crisis as it emerged in New Zealand and the steps taken between January and 13 May 2020 to try and eliminate the virus in this country. It is not necessary for us to refer in any detail to the events after 13 May 2020 because the Third Health Act Order was revoked when new orders were issued pursuant to the COVID‑19 Public Health Response Act 2020 which came into force that day.

The New Zealand response to COVID-19

To place in context New Zealand’s response to COVID-19, it is helpful to briefly summarise the epidemiological evidence that emerged between 5 January and 25 March 2020, which was the day on which the First Health Act Order was issued.

The epidemiological evidence from 5 January to 25 March 2020

On 5 January 2020, the WHO issued a disease outbreak notification, which alerted the international community to a cluster of pneumonia cases of unknown origin that was being investigated in Wuhan. The following week the WHO confirmed that a novel coronavirus was the cause of the respiratory illness detected in Wuhan. By 21 January, it was reported that four people in Wuhan had died from the virus and that it could be transmitted from person to person. It was not until 30 January, however, that the WHO declared a Public Health Emergency of International Concern. By then, 170 people had died from the virus and the number of cases in the world had grown exponentially to 7,818. By the end of January, the virus had been detected in 18 countries outside of China.
As at 14 February 2020, there were 49,053 confirmed cases of COVID-19 in the world, of which 1,383 had resulted in deaths. By then, cases of COVID-19 had been reported in 24 countries outside of China. On 28 February 2020, the WHO raised the threat level posed by COVID-19 to “very high at a global level”. By that day, 83,652 cases of COVID-19 had been reported around the world, of which 2,858 had resulted in deaths. Health officials were carefully monitoring the spread of COVID‑19 in Italy, where 650 cases and 17 deaths had been reported by 28 February. The 28th of February was also a salutary day for New Zealand because on that day, the Minister of Health announced the country’s first case of COVID-19.
Epidemiological advice provided to the Ministry of Health (the Ministry) in late February 2020 predicted that if there was a substantial and uncontrolled spread of COVID-19 in New Zealand, 65 per cent of the population would contract the virus and up to 336,000 people would require hospitalisation. It was estimated that the death rate under this scenario would be between 12,600 and 33,600 people, with the elderly, Māori and Pasifika populations comprising a disproportionate share of hospitalisations and deaths.
In early March 2020, the global warning signs were becoming extremely alarming. In Italy for example, from 1 March to 3 March 2020, the total number of COVID-19 cases went from 1,128 to 2,036, and the total number of deaths went from 29 to 52. On 4 March 2020, New Zealand confirmed its second COVID-19 case. On 11 March 2020, WHO declared COVID-19 to be a global pandemic. The number of COVID-19 cases in New Zealand began to slowly increase so that by 18 March there were 20 confirmed cases in this country. By that day, 191,127 cases of COVID-19 had been reported in the world, of which 7,807 had resulted in deaths from the virus.
In mid-March the Ministry received a WHO report, which contained modelling data from the United Kingdom and the United States. The report set out two options for managing COVID-19, namely, mitigation and suppression. The WHO report explained that mitigation strategies were unlikely to prevent hundreds of thousands of deaths in the United Kingdom and the United States. That report complemented a report that the Ministry received from Professors Wilson and Baker from the University of Otago, whose modelling predicted significant rates of death in New Zealand from COVID-19.
By 20 March 2020, the number of COVID-19 cases in New Zealand had increased to 39. On the following day, the number of COVID-19 cases had increased to 53. It was also on this day that New Zealand reported two cases of likely community transmission. From 22 March to 23 March 2020, New Zealand witnessed a 50 per cent increase in COVID-19 cases from 66 to 102. On the same day, Professors Wilson and Baker provided another report to the Ministry in which they explained that if New Zealand failed to eliminate COVID-19 the country would suffer a major public health catastrophe. The following day, the University of Otago team who had been advising Ministry officials revised their earlier estimates of the adverse consequences of New Zealand not eradicating COVID-19. The new “worst case” scenario suggested up to 36,000 New Zealanders would require ICU admission and that 27,600 could die.
By 25 March, there were 205 confirmed and probable cases of COVID-19 in New Zealand and the number of cases of the virus in the world had reached 413,467, of which 18,433 had resulted in deaths.

New Zealand Government’s response

On 23 January 2020, the Ministry established an Incident Management Team. The following day, the New Zealand Government’s Interagency Pandemic Group was convened. As its name suggests, that group comprised representatives from a range of government departments and agencies and was formed pursuant to the New Zealand Influenza Pandemic Plan that had been drafted in 2010 and revised in 2017. That plan involved a four-stage response to pandemics namely, “plan for it”, “keep it out”, “stamp it out”, and “manage it”. At the same time, the Ministry established a group of technical advisers, including epidemiologists and virologists whose role was to provide expert advice and guidance to Ministers and other officials.
On 28 January 2020, the Ministry recommended that the Governor-General by Order in Council designate the novel coronavirus as a notifiable disease under sch 1 of the Act.
By late January 2020, the Ministry was taking a number of measures to alert frontline health workers, border officials, airlines and laboratories to the risks posed by the virus and the measures that would need to be taken to mitigate those risks. On 28 January 2020, the Ministry activated its National Health Coordination Centre to take over from the Incident Management Team.
On 1 February 2020, Cabinet established a group of Ministers to take measures to respond to the virus. The name of that group of Ministers changed throughout the period covered by this judgment. We shall refer to it as the COVID Ministers Group. The Director-General provided advice to those Ministers on 2 February 2020, which resulted in temporary measures being put in place at New Zealand’s border to try to prevent the virus entering New Zealand.

On 14 February 2020 when it became apparent that COVID-19 was spreading globally, the COVID Ministers Group extended the border restrictions that had been put in place on 2 February 2020. During this time, the Director-General and his officials were becoming increasingly concerned about the risks of COVID-19 entering New Zealand from travellers arriving in this country.
In late February 2020, information from China provided Ministry officials with a more detailed appreciation of the infection and fatality rates associated with COVID‑19. At the same time, the Ministry was communicating with DHBs concerning the establishment of local assessment centres and with the Pharmaceutical Management Agency (PHARMAC) to ensure medical supplies were secure.
On 28 February 2020, in response to the WHO raising the COVID-19 threat level, New Zealand intensified its public health campaign to remind people of what they needed to do to keep themselves and their families safe.
In early March 2020, Mr John Ombler, a retired senior public servant and a former Deputy State Services Commissioner, was appointed to lead the “All of Government Response” (AOGR) to COVID-19. His appointment recognised that the Government’s management of COVID-19 would impact upon all aspects of New Zealand society and would require significant assistance from the wider public service.
The leadership team of the AOGR group comprised Mr Ombler, Dr Bloomfield, Mr Mike Bush (the then Commissioner of Police), Ms Sarah Stuart‑Black (the Director of Civil Defence and Emergency Management) and Dr Peter Crabtree, a senior official from the Ministry of Business, Innovation and Employment (MBIE). The AOGR group worked closely with Ministry officials to provide the COVID Ministers Group with a strategy on 10 March 2020 that addressed the epidemiological evidence about the transmissibility of COVID-19 and the decisions that would soon need to be made to manage the virus in New Zealand. The AOGR group recommended that New Zealand “go early, go hard, stay the course” in order to reduce the peak numbers of any outbreak and spread the burden on the health system and economy.
Mr Ombler has explained in an affidavit the extraordinary steps that officials needed to take in order to provide advice to Ministers and to give effect to decisions:
Policy advice was being formulated and decisions were being made almost at the same time as they were being operationalised and communicated to the public. We as officials were providing advice directly to the Ministers Group, and would generally be in attendance at all the Cabinet meetings. These meetings were usually held at 10.30 in the morning through to about midday, following which there were a few hours in which to set in train the decisions taken that morning and work on the issues that needed to be taken to Ministers the next day. The agenda for the next day’s Cabinet committee meeting would close at 4 pm with papers going out to Ministers at that point, though frequently there were a number of oral items and updates as well.
On 11 March 2020, the same day the WHO declared COVID-19 to be a global pandemic, New Zealand added COVID-19 to pt 3 of sch 1 of the Act as a quarantinable infectious disease. This in turn released the powers under the Act to quarantine travellers arriving into New Zealand.
On 12 March 2020 the AOGR group warned Ministers the country was rapidly approaching “a tipping point, where [Ministers’] decisions [concerning] the border will either put New Zealand on a trajectory that: manages the public health risk effectively … or isolates New Zealand from the world and results in a shock to our economy which has deep and long lasting adverse impacts”.[12]
[12]Affidavit of Dr Ashley Robin Bloomfield, 13 July 2020 at [147].
A further paper was prepared for Cabinet on 14 March 2020, in which Ministers were warned that “[o]ther countries have seen a few initial cases rapidly escalate into very high peaks of cases in a matter of days” and that New Zealand officials were seeing “an unprecedented increase in the number of cases throughout the world with significant spikes in developed and comparable countries”.[13]
[13]At [151].
Cabinet agreed on 14 March 2020 to extend the temporary border measures so that most New Zealanders and foreign nationals arriving in New Zealand over the coming weeks would be expected to self-isolate for 14 days. It was also announced that mass gatherings would be restricted and that rules would be announced on 16 March 2020 concerning cancellations and regulation of public gatherings.
On 16 March 2020, the Minister of Health authorised the Director-General and Medical Officers of Health to use the special powers contained in s 70(1) of the Act. Later that day, the Ministry issued a notice saying that it would use s 70(1)(f) to require persons entering New Zealand to face mandatory quarantine if it considered self‑isolation measures to be inadequate.
Also on 16 March 2020, Cabinet agreed to prohibit outdoor and indoor gatherings of more than 500 people. Two days later, that prohibition was extended to indoor gatherings of more than 100 people. The Government also resolved to detain and deport temporary visa holders if they failed to comply with instructions from a Medical Officer of Health.
By this time “[i]t was becoming very clear [to the Director-General] that managing the virus through ‘flattening the curve’ was not the best option: if community transmission became established, our health system would be overwhelmed. Even a flattened curve would involve numbers that were unmanageable. It was now clear that the only appropriate option was suppression, if we could achieve it”.[14]
[14]At [187]. By “flattening the curve” the Director-General meant reducing the incidence of COVID‑19 as distinct from eliminating it.
On 19 March 2020, following urgent advice to Cabinet, New Zealand’s border was closed to everyone except New Zealand citizens, permanent residents, their partners and dependent children.
During this phase of New Zealand’s response to COVID-19, the AOGR group developed a system of four alert levels. The restraints and degrees of response intensified with each escalating level:
(a)Alert Level 1 — Prepare. This recognises a situation where the disease is contained in New Zealand: the risk assessment is that COVID-19 is uncontrolled overseas and that isolated household transmission could be occurring in New Zealand.
(b)Alert Level 2 — Reduce. This recognises a situation where the disease is contained but the risk of community transmission remains: the risk assessment is that household transmission and single or isolated cluster outbreaks could be occurring.
(c)Alert Level 3 — Restrict. This recognises a situation where there is a high risk that the disease is not contained: the risk assessment is that community transmission might be happening, and that new clusters may emerge but can be controlled through testing and contact tracing.
(d)Alert Level 4 — Lockdown. This recognises a situation where it is likely that the disease is not contained: the risk assessment is that community transmission is occurring and that there may be widespread outbreaks and new clusters.
On 20 March 2020, Ministry officials prepared a paper for the Prime Minister explaining the proposed alert level system and recommended New Zealand move to Alert Level 2 as soon as practicable and remain there for up to 14 days.
The COVID Ministers Group agreed to the Alert Level framework on 20 March 2020 and that New Zealand would move to Alert Level 2 as soon as possible.
On 21 March 2020, the Prime Minister announced the Alert Level system and that New Zealand was at Alert Level 2. At that time, it was thought New Zealand would remain in Alert Level 2 for two weeks.
During the ensuing two days, it became clearer to the Director-General and the leaders of the AOGR group that it was likely there were cases of community transmission of COVID-19 in New Zealand and that it was becoming increasingly imperative that the Government rethink how quickly New Zealand should move to Alert Levels 3 and 4. The Director-General has said that based upon the experience of New South Wales, “[i]f community transmission became established [in New Zealand] the number of cases would double every five days”.[15] The Director‑General thought it was no longer appropriate for New Zealand to remain at Alert Level 2 and that “New Zealand was at a critical moment” because it risked experiencing an exponential growth in cases.[16]
[15]At [221].
[16]At [223].
A paper was prepared over the weekend of 21–22 March 2020, which contained a recommendation to Cabinet for New Zealand to move to Alert Level 4. The paper explained:
Essential services
81In the case of a move to Levels 3 or 4, there is a need to maintain certain services. In deciding which services need to continue, we have been guided by the following principles:
81.1Public health is paramount, so we need to minimise risks to public health.
81.2We must continue our response to COVID-19.
81.3We must ensure the necessities of life for everyone in New Zealand.
81.4We must also maintain public health, safety and security.
The task of identifying “essential businesses” started on 22 March 2020 when Mr Paul Stocks, a senior official in MBIE, met with other officials from a range of government departments, including the Ministry, to devise a system for determining what would constitute essential businesses. That group of officials prepared a draft list of the services they considered would be essential during Alert Levels 3 and 4.
The draft list identified 12 sectors that covered both public services and private enterprises and the entities within those sectors that had been identified by officials as providing essential services. In addition to those 12 sectors, the draft list also included the “lifeline utilities” listed in sch 1 of the Civil Defence Emergency Management Act 2002, and the “essential services” in sch 1 of the Employment Relations Act 2000.
The Director-General has said in his affidavit that, to the best of his recollection, he reviewed the draft list. Mr Stocks used firmer language in his affidavit. He said the “draft list was agreed by the [AOGR] group (including the Director-General of Health and [Mr Ombler])”.[17] The draft list was then included in the appendix to the paper that went to Cabinet.
[17]Affidavit of Paul Gerard Stocks, 13 July 2020 at [16].
At the same time as the Cabinet paper was prepared, the Chief Executive of the Department of the Prime Minister and Cabinet informed heads of government departments and other government agencies that Mr Ombler would be “responsible for administering and enforcing” the list of essential businesses but that government departments and agencies would need to assist in addressing questions about what entities were essential services and in liaising with the sectors listed in the appendix to the Cabinet paper.
Cabinet accepted the recommendations in the paper at its meeting on 23 March 2020.
Also on 23 March, the Director-General recommended the Prime Minister issue an epidemic notice under the Epidemic Preparedness Act 2006. The paper recommending this course of action explained why the Epidemic Preparedness Act was relevant:
10The Epidemic Preparedness Act 2006 has powers to facilitate the management of epidemics or quarantinable diseases. These include giving an Epidemic Notice, and Epidemic Management Notices.
11Giving an Epidemic Notice provides a platform to activate additional changes, or modify existing legislation, as the situation around COVID-19 continues.
Following the Cabinet meeting on 23 March, the Prime Minister announced that New Zealand had now moved to Alert Level 3 with effect from 1.00 pm that day and that the country would move to Alert Level 4 at 11.59 pm on 25 March 2020. At her press conference the Prime Minister explained that the rapid escalation to Alert Level 4 was necessary to give New Zealand the best opportunity to break the chain of community transmission.
At approximately 3.00 pm on 23 March, the New Zealand Government COVID-19 website was updated. The website explained that New Zealand was at Alert Level 3. The website set out the following under the heading of “[e]ssential businesses”:
Essential businesses, and those that support them, will continue to provide the necessities of life for everyone in New Zealand.
This means food, medicine, healthcare, energy, fuel, waste-removal, internet and financial support will continue to be available.
Under the heading of “[w]hat are essential businesses?”, the website explained that the list may evolve over time but at the time the list was posted it comprised 15 sectors. The website identified entities within those sectors that were deemed “essential services” and that more specific information for each sector would soon be published.
Later that day, the Minister of Finance announced a number of measures to support those people whose livelihoods would be disrupted by the measures that were being taken to prevent the spread of COVID-19 in New Zealand.
On 24 March 2020, the Prime Minister issued an Epidemic Notice in accordance with the advice received by Cabinet at its meeting on 23 March 2020.
Also on 24 March, Dr Bloomfield, Mr Ombler and Ms Iona Halsted, the Secretary of Education, spoke to the public about the implications of New Zealand moving to Alert Level 4. During that press conference the concept of the “bubble” was introduced to the public to describe the physical distancing and isolation that would be required during Alert Level 4.
A state of emergency was declared on 25 March 2020. That state of emergency was extended on six occasions through to 13 May 2020. The declaration of a state of emergency was in addition to the Prime Minister having issued an Epidemic Notice and the Minister of Health having authorised the use of the special powers in s 70(1) of the Act.
On 25 March 2020, Parliament passed the COVID-19 Response (Urgent Management Measures) Legislation Act 2020. That legislation (among other things):
(a)made changes to the Local Government Act 2002 to enable members of local government bodies to attend meetings by audio or visual links;
(b)amended the Residential Tenancies Act 1986 by placing a freeze on rent increases and tenancy evictions; and
(c)amended the Education Act 1989 to enable the Secretary of Education to direct educational facilities to open or close and to direct the ways in which education could be delivered and education entities controlled and managed.

First Health Act Order

It was also on 25 March 2020 that the Director-General issued the first of the three Orders that are the focus of this appeal. The First Health Act Order was said to be made pursuant to s 70(1)(m) of the Act. The following five provisions of that Order are of key importance:
(a)The Order required the closure until further notice of “all premises within all districts of New Zealand except those listed in the Appendix to [the Order]”.
(b)The Order forbade people to “congregate in outdoor places of amusement or recreation of any kind or description … in all districts of New Zealand” until further notice.
(c)The Order said that “congregate” does not include people maintaining at all times “physical distancing as defined in the Appendix”.
(d)The appendix to the Order said it did not apply to “any premises necessary for the performance or delivery of essential businesses”. “[E]ssential businesses” were defined to mean:
… businesses that are essential to the provision of the necessities of life and those businesses that support them, as described on the Essential Services list on the covid19.govt.nz internet site maintained by the New Zealand government.
(e)“[P]hysical distancing” was also defined in the appendix to the Order to mean:
… remaining two (2) metres away from other people, or if you are closer than two (2) metres, being there for less than 15 minutes.
Changes were made to the COVID-19 internet site between 23 and 25 March. The key changes relating to essential businesses concerned exemptions that were made to the list of businesses that were required to close. The COVID-19 website on 25 March 2020 said, “The Tiwai Point smelter is exempt from closure”. The website recognised that NZ Steel, Methanex and pulp and paper plants were unlikely to provide essential services (except to the extent that pulp and paper plants produced essential products), but the website explained that NZ Steel and non-essential pulp and paper plants had been granted an opportunity to close gradually, and Methanex was granted an exemption to continue operating with scaled back operations in order to avoid a risk of gas supply instability.
The businesses that qualified as essential businesses were reviewed during the duration of the First Health Act Order. An example of a change made to the list of essential businesses occurred on 9 April 2020, when Ministers apparently decided to include in the list of essential businesses the maintenance of stadia turfs, bowling greens, golf courses and nurseries. It appears Ministers determined the economic impacts of not tending to these assets outweighed the public health risks, which could be adequately managed through public health measures.
The essential business list was maintained and updated on the covid19.govt.nz website until 2 April 2020 when the list was transferred to the MBIE website. From that date onwards the covid19.govt.nz website business page contained a link to the MBIE list of essential businesses. That list, and the process for reviewing and updating the list was itself reviewed by the Ministry on 9 April 2020. Following that review the Director-General satisfied himself that “the MBIE decision making process and criteria for recognising essential businesses remain[ed] fit for purpose”.
New Zealand’s first death from COVID-19 was reported on 29 March 2020. Two days later, the community saw the highest daily increase in COVID-19 cases. Thereafter however, the number of new cases of COVID-19 started to decrease in accordance with the modelling projections that had been relied upon by officials when recommending New Zealand move into Alert Level 4.

Second Health Act Order

The Second Health Act Order issued by the Director-General came into effect on 3 April 2020. That Order was said to have been made under s 70(1)(f) of the Act. The key provisions of the Second Order required all persons within all districts of New Zealand to be isolated or quarantined:
(a)by remaining at their current place of residence, except as permitted for essential personal movement; and
(b)by maintaining physical distancing, except—
(i)from fellow residents; or
(ii)to the extent necessary to access or provide an essential business.
The Second Health Act Order specified what was permitted as “essential personal movement”. That concept included:
(a)accessing essential businesses;
(b)providing essential businesses;
(c)limited recreational purposes;
(d)shared bubble arrangements;
(e)emergencies and complying with court orders; and
(f)authorised travel.

The Second Health Act Order adopted the same meanings of “essential businesses” and “physical distancing” as in the First Health Act Order.

Third Health Act Order

On 20 April 2020, Cabinet agreed to move New Zealand from Alert Level 4 down to Alert Level 3 with effect from 11.59 pm on 27 April 2020. At that time, the Third Health Act Order, which was said to have been issued pursuant to both s 70(1)(f) and (m) of the Act, came into force. That Order remained in force until 14 May 2020.

As we have noted at [9], the Third Health Act Order revoked the two previous Orders and required all persons in all regions to be isolated or quarantined by remaining at their current places of residence. The Third Health Act Order also required all people to maintain physical distancing with the exceptions that were essentially the same as those set out in the earlier Orders. The Order specified instances of essential personal movement that were permitted and required the closure of “restricted premises” with certain exceptions. The Order also continued the prohibition on congregating in outdoor places of amusement or recreation.
By the time Alert Level 4 ended on 27 April 2020, New Zealand had reported 1,469 confirmed and probable cases of COVID-19, and 19 people had died from the virus. By 4 May 2020, when New Zealand was in Alert Level 3, there were no new cases of COVID-19 in the country.
On 13 May 2020, the COVID-19 Public Health Response Act came into force. We explain the key provisions of that legislation at [101] to [103]. The new legislation rendered it unnecessary for further notices to be issued in reliance upon the special powers contained in s 70(1) of the Act.
For completeness, we note in this overview that New Zealand moved from Alert Level 3 to Alert Level 2 on 14 May 2020. By that stage New Zealand had reported no COVID-19 cases during the previous three days. New Zealand moved to Alert Level 1 on 8 June 2020 and aside from some further occasions in which higher Alert Levels were imposed, New Zealand remained at Alert Level 1 up until the hearing of the appeal in July 2021, by which time New Zealand had reported fewer than 2,800 cases of COVID-19 and 26 deaths from the virus.

Legislative framework

In explaining the provisions of s 70(1) of the Act, it is helpful to first explain the public health provisions that preceded the key provisions of the Act. The history of public health legislation shows that generally, officials have responded to pandemics by relying on general provisions such as those contained in s 70(1) of the Act. Bespoke legislation has only been invoked on the rare occasions that general powers, such as those in s 70(1), have proven to be inadequate.
The first efforts in New Zealand to manage the spread of infectious diseases can be traced to the Harbour Regulations Ordinance 1842.[18] More wider measures were incorporated into the Public Health Acts of 1872 and 1876, which authorised a Central Board of Health to issue regulations to guard against the spread of disease.[19]
[18]Harbour Regulations Ordinance 1842 5 Vict 15, cls 3–6. This is also referred to as the Harbours Act 1842.
[19]Public Health Act 1872, s 21; and Public Health Act 1876, s 20.
In 1900, the Bubonic Plague Prevention Act 1900 was passed. It conferred upon the Governor a wide range of powers “to promptly and effectively deal with bubonic plague”.[20] That Act was repealed by the Public Health Act 1900.
[20]Bubonic Plague Prevention Act 1900, s 4(8).
The Department of Public Health was created by the Public Health Act 1900. The same Act established the roles of the Chief Health Officer and District Health Officers and authorised the making of regulations for “preventing or checking the spread of infectious disease”,[21] including regulations “[f]or the isolating or disinfecting of persons, houses, buildings, places, and things”.[22] District Health Officers were, if authorised by the Governor to do so, able to exercise special powers, including the ability to “forbid persons to leave the … place in which they [were] isolated or quarantined until they [had] been medically examined and found to be free from dangerous infectious disease”.[23]
[21]Public Health Act 1900, s 14.
[22]Section 14(5).
[23]Section 19(8).
The relevant provisions of the Public Health Act 1900 were consolidated into the Public Health Act 1908. The powers conferred on District Health Officers were invoked during the smallpox outbreak in 1913 and during the 1918 influenza pandemic, commonly referred to as the “Spanish Flu” which caused the deaths of approximately 9,000 New Zealanders between October and December 1918.
Concerns about the way the powers conferred by the Public Health Act 1908 were exercised during the 1918 influenza pandemic led to the establishment of a Royal Commission of Inquiry in 1919 called the Influenza Epidemic Commission that was chaired by Sir John Denniston, a retired Supreme Court Judge.[24] The terms of reference of the Commission included that it report on the best methods of preventing or dealing with another pandemic and of administering public health services.
[24]As a High Court Judge was then known.
The Commission was concerned by the fractured nature of public health laws in New Zealand. In particular, the Commission said there were unnecessary overlaps between the powers conferred upon local bodies under the Municipal Corporations Act 1908 and those vested in District Health Officers under the Public Health Act 1908. The Commission described public health laws as being extremely complex and diffuse and recommended that there be consolidation and reform of those laws. The Commission recognised that preventing and managing future pandemics required a unified community response and adopted language that echoed the sentiments of utilitarian philosophers such as John Stuart Mill.[25] The Commission said:[26]
Just as the war called for general recognition of responsibility on the part of all who wished for the preservation of justice and liberty, so does the warning of a great and devastating epidemic call upon all who desire the great benefits of health and well-being to bear their share ungrudgingly in any work that is necessary for the protection of the lives of our people.
[25]John S Mill On Liberty (4th ed, Longmans, Green, Reader and Dyer, London, 1869) at 21–22:
“the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others”.
[26]Influenza Epidemic Commission “Report of the Influenza Epidemic Commission” [1919] II AJHR H-31A at 13.
The Commission’s recommendations led to Parliament passing the Health Act 1920 under which the Chief Health Officer became the Director-General of Health and District Health Officers became Medical Officers of Health.[27]
[27]Health Act 1920, s 5.
Section 76 of the Health Act 1920 contained provisions that carried over some sections in the 1908 Act and created other new special powers. Section 76 of the 1920 Act contained many of the provisions that can now be found in s 70 of the Act that are relevant to this proceeding. For example, under s 76 of the Health Act 1920, the Minister of Health could authorise a Medical Officer of Health to exercise a number of special powers for the purpose of preventing the outbreak or spread of any infectious disease. Those special powers included the authority to:
(f)… require persons, places, buildings, ships, animals, and things to be isolated, quarantined, or disinfected …
…
(n)… prohibit until further order or for any fixed period, … the congregation of people at any racecourse, recreation-ground, or other place within the health district …
The special powers contained in s 76 of the Health Act 1920 were invoked in response to the polio pandemic of 1925 and were used, for example, to prohibit children throughout the North Island attending “Theatres … Schools … Recreation and Sports Grounds … Racecourses and all other places of public assembly, including public picnics”.[28]
[28]“Order under s 76 of the Health Act 1920” Northland Age (Kaitāia, 15 January 1925) at 5.
In 1948, Parliament responded to the spread of tuberculosis by passing the Tuberculosis Act 1948 which empowered Medical Officers of Health to require persons suspected of having tuberculosis, and who refused or failed to undergo medical examination, to undergo an examination.[29] The Tuberculosis Act also authorised Medical Officers of Health to apply to a Magistrate for orders compelling sufferers of tuberculosis who were in an infectious condition to be detained for up to three months in an “institution or some other suitable place” where they could be “properly attended and treated”.[30]
[29]Tuberculosis Act 1948, s 9.
[30]Section 16(1).
The Tuberculosis Act, like the Bubonic Plague Prevention Act, was a bespoke statute designed to address a specific public health crisis. Unlike the Bubonic Plague Prevention Act, however, the Tuberculosis Act remained in force for many years. It was not repealed until 2017.

Health Act 1956

The Act, which came into force on 1 January 1957, aimed to “consolidate and amend the laws relating to public health”. The Act deals with a wide range of public health matters, including drinking water, sanitation and the national cervical screening programme. Medical Officers of Health are appointed to health districts by the Director-General of Health.[31] Section 22(1) of the Act enables the Director-General to exercise all of the functions of a Medical Officer of Health “in any part of New Zealand”.
[31]Health Act 1956, s 7A.
At [4] we have set out the essential parts of s 70(1)(f) and (m) of the Act. We now set out those paragraphs in full:
70 Special powers of medical officer of health
(1)For the purpose of preventing the outbreak or spread of any infectious disease, the medical officer of health may from time to time, if authorised to do so by the Minister or if a state of emergency has been declared under the Civil Defence Emergency Management Act 2002 or while an epidemic notice is in force,—
…
(f)require persons, places, buildings, ships, vehicles, aircraft, animals, or things to be isolated, quarantined, or disinfected as he thinks fit:
…
(m)by order published in a newspaper circulating in the health district or by announcement broadcast by a television channel or radio station that can be received by most households in the health district, do any of the following:
(i)require to be closed, until further order or for a fixed period, all premises within the district (or a stated area of the district) of any stated kind or description:
(ii)require to be closed, until further order or for a fixed period, all premises within the district (or a stated area of the district) of any stated kind or description in which infection control measures described in the order are not operating:
(iii)forbid people to congregate in outdoor places of amusement or recreation of any stated kind or description (whether public or private) within the district (or a stated area of the district):
(iv)forbid people to congregate in outdoor places of amusement or recreation of any stated kind or description (whether public or private) within the district (or a stated area of the district) in which infection control measures described in the order are not operating.
…
Section 70(1) of the Act identifies three possible prerequisites to the exercise of the special powers by a Medical Officer of Health or the Director-General:
(a)an authorisation from the Minister of Health to exercise the powers in s 70(1) of the Act; or
(b)a declaration of a state of emergency under the Civil Defence Emergency Management Act; or
(c)the existence of an epidemic notice.
The reference to an epidemic notice in s 70(1) of the Act is to a notice issued under the Epidemic Preparedness Act. That Act was passed at a time when there were growing concerns about the spread of the Human Avian Influenza (H1N1). The Prime Minister is authorised under s 5 of the Epidemic Preparedness Act to issue epidemic notices in circumstances where specific criteria are satisfied.
All three prerequisites we have referred to at [98] were in place at the time the First Health Act Order was issued.

COVID-19 Public Heath Response Act 2020

The COVID-19 Public Health Response Act was passed in order to provide further powers to prevent and limit the outbreak and spread of COVID-19. The types of orders that can be made under that Act include requiring people to:[32]
[32]COVID-19 Public Health Response Act 2020, s 11(1)(a).
…
(i)stay in any specified place or refrain from going to any specified place:
(ii)refrain from associating with specified persons:
(iii)stay physically distant from any persons in any specified way:
(iv)refrain from travelling to or from any specified area:
(v)refrain from carrying out specified activities (for example, business activities involving close personal contact) or require specified activities to be carried out only in any specified way or in compliance with specified measures:
(vi)be isolated or quarantined in any specified place or in any specified way:
(vii)refrain from participating in gatherings of any specified kind, in any specified place, or in specified circumstances:
(viii)report for and undergo a medical examination or testing of any kind, and at any place or time, specified and in any specified way or specified circumstances:
(ix)provide, in specified circumstances or in any specified way, any information necessary for the purpose of contact tracing:
(x)satisfy any specified criteria before entering New Zealand from a place outside New Zealand, which may include being registered to enter an MIQF on arrival in New Zealand:
Orders may also be made in relation to, amongst other things, “places … or other things” in order to:[33]
[33]Section 11(1)(b).
…
(i)require things to be closed or only open if specified measures are complied with:
(ii)prohibit things from entering any port or place, or permit the entry of things into any port or place only if specified measures are complied with:
(iii)prohibit gatherings of any specified kind in any specified places or premises, or in any specified circumstances:
(iv)require things to be isolated, quarantined, or disinfected in any specified way or specified circumstances:
(v)require the testing of things in any specified way or specified circumstances.
…
Section 12(1) of the COVID-19 Public Health Response Act makes clear that orders issued under s 11 may apply generally to all people in New Zealand or to any specified class of people in New Zealand and may apply generally throughout New Zealand or to any area in New Zealand.

Rights instruments

In his third amended statement of claim, Dr Borrowdale said six rights in the NZBORA were breached by the three Health Act Orders in issue. The rights identified by Dr Borrowdale were:
(a)Section 14 — Freedom of expression.
(b)Section 15 — Manifestation of religion and belief.
(c)Section 16 — Freedom of peaceful assembly.
(d)Section 17 — Freedom of association.
(e)Section 18(1) — Freedom of movement.
(f) Section 22 — Liberty of the person.
The High Court held that the rights affirmed by ss 14 and 22 of the NZBORA were not engaged in this case and preferred to focus on ss 16, 17 and 18.[34] We do not understand Dr Borrowdale to be challenging that aspect of the High Court’s judgment. In any event, we agree with the approach taken by the High Court and will proceed on the basis that it is the rights affirmed by ss 16, 17 and 18 of the NZBORA that are engaged in this case.
[34]High Court judgment, above n 4, at [88]–[89].
Those three rights reflect arts 12, 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR).[35] Those rights are also affirmed in provisions in comparable instruments to the NZBORA, such as ss 2(c) and (d) and 6 of the Canadian Charter of Rights and Freedoms 1982.
[35]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976), arts 12, 21 and 22.
Articles 12, 21 and 22 of the ICCPR contain provisions that say those rights may be restricted by law in circumstances where it is necessary to do so in the interests of protecting public health or the rights or freedoms of others.
Article 4(1) of the ICCPR also acknowledges that:
In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
Certain rights may not be derogated. The rights in the ICCPR that are treated as being sacrosanct include the rights to life, religion, and freedom from torture and slavery. On the other hand, the rights to freedom of movement, assembly and association in arts 12, 21 and 22 of the ICCPR may be derogated.
For completeness, we record the rights contained in the NZBORA include the right in s 8 not to be deprived of life. No counsel suggested the NZBORA right not to be deprived of life was engaged in this case. The position taken by counsel accurately reflects the narrow meaning that has been given to s 8 of the NZBORA.[36]
[36]Shortland v Northland Health Ltd [1998] 1 NZLR 433 (CA); AR (India) v Attorney-General [2021] NZCA 291; Lawson v Housing New Zealand [1997] 2 NZLR 474 (HC); and S v Midcentral District Health Board HC Wellington CP237/02, 18 March 2003. See also Soobramoney v Minister of Health (Kwazulu-Natal) (1998) 1 SA 765 (ZACC).
There are, however, broader “rights to health” contained in international instruments that are relevant to the issues raised by this appeal.
The first such instrument can be found in the Constitution of the WHO.[37] That Constitution was signed by New Zealand and 60 other countries in 1946.
[37]Constitution of the World Health Organization 14 UNTS 185 (opened for signature 22 July 1946, entered into force 7 April 1948).
The preamble to the WHO Constitution provides that:
THE STATES Parties to this Constitution declare, in conformity with the Charter of the United Nations, that the following principles are basic to the happiness, harmonious relations and security of all peoples:
Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.
The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.
The health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States.
The achievement of any State in the promotion and protection of health is of value to all.
…
Informed opinion and active co-operation on the part of the public are of the utmost importance in the improvement of the health of the people.
Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.
(emphasis added)
Article 1 of the WHO Constitution provides that the objectives of the WHO include “the attainment by all peoples of the highest possible level of health”. This is supplemented by the International Health Regulations (IHR) adopted by the World Health Assembly in 1969.[38]
[38]International Health Regulations (2nd ed, World Health Organization, Switzerland, 2005).
The stated purpose of the IHR is to:
prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade.

A valid sub-delegation of powers should not, however, be conflated with situations where the law considers there to have been no sub-delegation at all. Two such situations have been recognised in the law. First, Ministers and other public officials are frequently asked to make decisions based upon recommendations that have been prepared by other officials. The Minister or public official who reads an executive summary and ticks the recommendation “has neither delegated nor failed personally to take relevant considerations into account, if he or she in fact read and considered the department’s summary, and if that summary contained all the salient material facts, however briefly”.[87]
[87]Aronson, Groves and Weeks, above n 80, at [6.80], citing Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24; and Sita Queensland Pty Ltd v Beattie [2000] 2 Qd R 433 (QSC) at 438–439.
Second, there is the Carltona agency principle.[88] This holds that statutory powers may be exercised by departmental agents, and the agent’s acts will be deemed to be the acts of the power-holder on the basis that “[t]he agent is the principal’s ghost writer”. Although the Carltona agency principle normally applies to the powers given to Ministers, it may also apply “to office-holders within the public service structure [who are] accountable to Ministers”.[89]

Analysis

The High Court approach

[88]Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (CA).

[89]Aronson, Groves and Weeks, above n 80, at [6.130] and [6.140], citing Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [58].

We disagree with the High Court when it bifurcated the definition of essential businesses and concluded:
(a)the definition of “essential businesses” was contained in the words “businesses that are essential to the provision of the necessities of life and those businesses that support them”; and that
(b)the balance of the sentence, “as described on the Essential Services list on the covid19.govt.nz internet site …” was merely advisory.[90]
[90]High Court judgment, above n 4, at [268].
While those two parts of the sentence were separated by a comma, we do not think the sentence can be split into two disconnected parts. The definition is contained in the entire sentence. Furthermore, when the definition of “essential businesses” is read in the context of other information on the website, it is apparent the public was being told that a business was essential if it was included in the list of essential services on the website. The website expressly said that if a business “isn’t on the list of essential services” then it “must close”. This conclusion is reinforced when regard is had to the threats of enforcement contained on the website. Through the website the Government said that “[e]nforcement measures may be used” to stop non-essential businesses from operating.
The text of the definition of essential businesses and the prescriptive and mandatory way in which essential businesses were identified on the website are difficult to reconcile with the view that the words after the comma were merely advisory.
Our conclusion the High Court erred when it said half of the definition of “essential businesses” was advisory does not, however, determine the second ground of appeal.
There are two limbs to the second ground of appeal that we shall address:
(a)was there a delegation of statutory powers by the Director-General? If so;
(b)was that delegation unlawful?

Was there a delegation of statutory powers by the Director-General?

The question posed at [183(a)] requires consideration as to whether or not the Director-General made the decision as to what constituted essential businesses within the meaning of the First Health Act Order when he adopted the recommendations prepared by other officials.
The answer to this question requires a careful evaluation of the affidavit evidence and the drawing of reasonable inferences. Following that approach we draw the following conclusions:
(a)The Director-General turned his mind to the draft list of essential businesses when he considered and agreed to that draft list on 22 March.
(b)Even if the Director-General’s consideration of the draft list of essential businesses was not sufficient for him to have retained control over deciding what would constitute essential businesses, any deficiencies at that stage in the Director-General’s decision-making were remedied when, on 25 March, he adopted the definition of essential businesses and the list of those businesses that had been posted on the covid19.govt.nz website on 23 March.
The Director-General was entitled to rely on the advice prepared by Mr Stocks and his team concerning the meaning and scope of “essential businesses”. The fact others, including Cabinet Ministers, also agreed to the list of essential businesses does not detract from the fact that the Director-General retained control over what constituted essential businesses. He exercised that control when he adopted the recommendations of other officials when he issued the First Health Act Order. We emphasise the following three points:
(a)The definition of essential businesses in the First Health Act Order is crucial and takes precedence over the draft definitions that preceded the signing of the First Health Act Order.
(b)It is reasonable to infer, and there is no reason to doubt, the Director‑General fully appreciated and agreed with the terms of the First Health Act Order when he signed that Order on 25 March.
(c)The fact Ministers and other officials previously agreed with the definition of essential businesses reflected the reality that the Director‑General needed to ensure Cabinet and other officials were aware of and fully supported the terms of the First Health Act Order before it was issued on 25 March.

Was there an unlawful delegation in any event?

The approach we have explained at [184] to [186] disposes of the second ground of appeal. There is, however, an alternative reason why we believe the second ground of appeal cannot succeed. That reason focuses upon the actual guidance given to Mr Stocks’ team by the Director-General and others for them to take into account when compiling the draft list of essential businesses. The paper that was presented to Cabinet on 23 March explained four principles that were to guide decisions as to what constituted essential businesses:
(a)Public health was paramount.
(b)The Government’s response to COVID-19 must continue.
(c)The Government “must ensure the necessities of life for everyone in New Zealand”.
(d)Public health, safety and security needed to be maintained.

A draft list of essential service providers was set out in annex 5 of the Cabinet paper.

While the guidelines were cast in broad terms, the criteria the Director-General approved were sufficient for other officials to carry out the administrative task of identifying what businesses were essential. This places the circumstances of this case in a vastly different category from the facts of F E Jackson and Co Ltd v Collector of Customs, in which the terms of the purported delegation provided absolutely no guidance on who could qualify for an import licence.[91] Rather, the circumstances with which we are dealing are more closely aligned to those in Mackay v Adams and Hookings v Director of Civil Aviation, in which standards and principles were given to the sub-delegate.[92]
[91]F E Jackson and Co Ltd v Collector of Customs, above n 71.
[92]Mackay v Adams, above n 76; and Hookings v Director of Civil Aviation, above n 78.
The Supreme Court’s judgment in Cropp v Judicial Committee was also referred to in the High Court judgment and relied upon by counsel in relation to the delegation issue.[93] As we have stated, that case concerned the interpretation of the Racing Act 2003 and did not engage questions of delegation. However, the Supreme Court also held that rules made under a statutory power do not have to be detailed provided the rules are sufficiently clear that Parliament would have intended the statutory power to authorise the rules in question.[94]
[93]Cropp v Judicial Committee, above n 51. See High Court judgment, above n 4, at [263]–[264].
[94]At [40].
We are also reinforced in our approach by the fact that the special powers in s 70(1) of the Act are emergency powers that may be exercised at very short notice and in circumstances where the full magnitude of the emergency is not appreciated.

Exemptions

We agree with the Law Society that the evidence tends to show that the Director-General did not appear to be involved in the decisions concerning the exemptions provided to the Tiwai Point Smelter, other large industrial plants and the maintenance of stadia turfs, bowling greens, golf courses and nurseries. Those decisions appear to have been made by Ministers on the recommendations of advice that probably came from Mr Stocks’ committee.
It is possible that the decision to exempt those businesses from the non‑essential businesses that had to be closed was made without the approval of the Director-General, or without any other lawful authority. If that was the case, then the exemption decisions were likely to have been ultra vires.
While there is frequently a close link between an unlawful delegation of a statutory power and decisions that are ultra vires, the two concepts should not be conflated. Unlawful delegation occurs where a statutory power that is conferred upon A is unlawfully delegated to B. In the context of this case, the decisions that are likely to have been ultra vires occurred when C assumed authority to create exemptions in circumstances where those exemptions, if they were to have been made, should have been made by A.
We do not think any unlawful decision to exempt non-essential businesses from closure could be retrospectively authorised when the Director-General satisfied himself on 9 April 2020 that the decisions made by Ministers in response to recommendations from Mr Stocks and his team were “fit for purpose”.[95]
[95]The High Court found that the Director-General’s powers under s 70(1) could not be exercised retrospectively. See High Court judgment, above n 4, at [216]. This is consistent with the presumption against retrospectivity. See Pora v R [2001] 2 NZLR 37 (CA) at [40]; and Official Assignee v Petricevic [2011] 1 NZLR 467 (HC) at [31].
This case has been argued on the narrow basis that the Director-General (A) unlawfully delegated his powers under s 70(1)(m) of the Act to other officials (B). The case has not been argued on the basis that Ministers (C) made exemption decisions that were beyond their lawful powers although it does appear that Ministers and other officials probably acted ultra vires when directing that certain businesses be exempt from those that were required to close.

Conclusions: Second ground of appeal

Our conclusions in relation to the second ground of appeal are:
(a)The Director-General did not unlawfully delegate decisions concerning what businesses were essential businesses.
(b)The subsequent exemptions to the First Health Act Order that allowed some businesses to remain open were probably ultra vires.

Result

The appeal is dismissed.

Costs

Normally costs would be awarded to the respondents. We are, however, departing from the usual practice in this case because the issues raised by the appeal engage matters of significant public importance. Dr Borrowdale and his counsel have provided an important service to the community by presenting the Court with the issues that we have addressed. In those circumstances we decline to make any order for costs.

Solicitors:
Francis J Handy, Wellington for Appellant
Crown Law Office, Wellington for Respondents
New Zealand Law Society, Wellington for Intervener

[2021] NZCA 520

2 November 2021 at 2.00 pm