New Health New Zealand Incorporated v Minister for Covid-19 Response
[2025] NZCA 592
•12 November 2025 at 10.30 am
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA622/2023 CA737/2023
[2025] NZCA 592
BETWEEN NEW HEALTH NEW ZEALAND INCORPORATED Appellant AND MINISTER FOR COVID-19 RESPONSE First Respondent ATTORNEY-GENERAL Second Respondent
| Hearing: | 4 February 2025 |
| Court: | Mallon, Thomas and Woolford JJ |
| Counsel: | L M Hansen and C F J Reid for Appellant |
| K B Bell, D Jones and E J Cameron for Respondents |
Table of contents
| Introduction | [1] |
| Background | [8] |
| Is the appeal moot? | [13] |
| The appeal | [16] |
| The evidence | [18] |
| Respondents’ evidence at the High Court | [22] |
| Dr Bloomfield | [22] |
| Mr Hipkins | [27] |
| Dr Sarfati | [35] |
| Dr Verrall | [38] |
| The Otago University Report | [42] |
| The Second Otago University Report | [48] |
| Professor Baker | [51] |
| Appellant’s evidence at the High Court | [53] |
| Dr Bridle | [53] |
| Mr Gabriel | [60] |
| Dr Jefferson | [62] |
| Judgment under appeal | [66] |
| Mistake of fact (and ultra vires) | [67] |
| Section 14 of NZBORA – freedom of expression | [72] |
| Section 11 of NZBORA – right to refuse to undergo medical treatment | [74] |
| Irrationality | [79] |
| Conclusion | [81] |
| Were the Orders made in reliance on a material mistake of fact? | [82] |
| The appellant’s challenge | [82] |
| Mistake of fact as a judicial review ground | [84] |
| Evidence post-dating the Orders | [106] |
| Appellant’s submissions | [118] |
| Respondents’ submissions | [127] |
| Analysis | [131] |
| Did the Orders engage the right to refuse to undergo medical treatment? | [146] |
| Appellant’s submissions | [146] |
| Respondents’ submissions | [158] |
| Analysis | [162] |
| Was the limitation on freedom of expression justified? | [168] |
| Costs appeal | [176] |
| Judgment under appeal | [177] |
| Grounds of appeal | [183] |
| Submissions | [184] |
| The law | [188] |
| Analysis | [195] |
| Costs in the Court of Appeal | [203] |
| Result | [204] |
| Introduction |
The response of the New Zealand Government to the global COVID-19
pandemic began with a nationwide lockdown imposed in March 2020 after a state of
emergency had been declared. At that time, New Zealand’s response involved an
elimination strategy to “stamp out” COVID-19. The strategy used an alert level
system, which used measures such as lockdowns, restrictions on gatherings and
business operations, mandatory record keeping systems and physical distancing
requirements to deal with any outbreaks. On 30 August 2020, it introduced the first
legal requirement for face coverings to be worn on public transport and aeroplanes.[1]
[1] In mid-to-late 2021, a number of additional face covering requirements were brought into the alert
New Zealand’s response moved to a minimisation and protection strategy in
October 2021 due to the emergence of the Delta variant, the ongoing social and
economic impacts of lockdowns, and the availability of vaccinations. The COVID-19
Protection Framework (CPF) introduced traffic light settings to impose public health
requirements similar to those under the alert level system, with the addition of
vaccination measures. A number of orders were made by ministers under the
COVID-19 Public Health Response Act 2020 (the Act) imposing face covering
requirements.[2]
[2] Much of the evidence has used the terms “face covering” and “mask” interchangeably. We
The appellant, New Health New Zealand Inc,[3] brought judicial review
proceedings in the High Court challenging the COVID-19 Public Health Response
(Protection Framework) Order 2021 made on 30 November 2021 (the 2021 Order)
and the COVID-19 Public Health Response (Masks) Order 2022 made on
12 September 2022 (the 2022 Order) (together, the Orders). The appellant argued a
number of grounds of review in relation to the Orders’ face covering requirements,
including that those requirements breached the New Zealand Bill of Rights Act 1990
(NZBORA). The appellant’s arguments were principally based on concern about the
quality of evidence relied on as to the efficacy of face coverings. Cooke J, in the High Court, dismissed the judicial review application.[4] The appellant now appeals that
decision.
[3] An incorporated society which describes itself as a “consumer-focused health organisation” with
[4] New Health New Zealand Ltd v Minister for COVID-19 Response [2023] NZHC 2647 [judgment
The appellant says that the expert advice given to the Government, including
by the Director-General of Health, to the effect that face coverings were not effective
and provided no protection, changed in mid-2020 when the first orders requiring face
coverings to be worn in various community settings were made. The appellant claims
the Ministers were labouring under a material mistake of fact when they made the
Orders, namely that face coverings were effective to prevent or limit the spread of
COVID-19. That argument morphed into a claim that the highest quality evidence
established the fact that there was uncertainty as to whether face coverings were
effective. In the appellant’s submission, the respondents relied on the lowest quality,
lowest certainty evidence to assert face coverings were highly effective. This was
more than a contest between experts as so characterised by the High Court.[5] The
appellant says that the High Court was wrong to dismiss the ground of review of
mistake of fact.[6]
[5] At [33].
[6] At [57].
The appellant says that the High Court was also wrong to hold that face
coverings were not medical treatment and therefore that the right to refuse to undergo
medical treatment protected under s 11 of NZBORA was not engaged.[7] While the
High Court found the limitation on the s 14 right to freedom of expression was
engaged, it concluded that the limitation was justified as proportionate, a conclusion
the appellant also says was in error.[8]
[7] At [84]–[94].
[8] At [70]–[82].
The Minister for COVID-19 Response and the Attorney-General, together the
respondents, say that the two Ministers who respectively made the Orders were not
operating under a mistake of fact in considering that the wearing of face coverings can
contribute to preventing or limiting the transmission of COVID-19 and the public
health advice on which they relied was appropriate. Further, they say the rights not to
be deprived of life and to refuse medical treatment were not engaged by a legal requirement requiring face coverings to be worn in specified settings. To the extent
that the right to freedom of expression was limited, that was justified under NZBORA.
The respondents emphasise that the Government’s response to COVID-19
employed a suite of measures to prevent poor health outcomes and minimise the
escalation of COVID-19 and recognised that no single public health intervention
would be 100 per cent effective.
Background
The World Health Organisation (WHO) declared the global outbreak of
COVID-19 a pandemic on 11 March 2020. COVID-19 is a viral infectious disease
that can cause severe acute respiratory syndrome and death. While most people
recover fully over time, a significant proportion suffer ongoing and long-lasting health
effects. The WHO estimated that for 2020 and 2021, there were 14.83 million excess
deaths associated with the COVID-19 pandemic globally.
The 2021 Order introduced a series of requirements under the traffic light
system. That included that face coverings were generally required to be worn on
public transport and at the premises of retail businesses, public facilities operated by
central and local government, and healthcare services. Exemptions applied. The 2022
Order removed all face covering requirements except in certain health service
premises wherein visitors were required to wear face coverings but patients/residents
and employees were not.[9] In addition to blanket exemptions for certain classes of
individual (for example, those under the age of 12 years), a person could apply for an
individual exemption pass.[10]
[9] COVID-19 Public Health Response (Masks) Order 2022, cl 5.
[10] Clauses 6 and 7.
Both Orders were made pursuant to s 11 of the Act which provided as follows:
11 Orders that can be made under this Act (1) The Minister or Director-General may, in accordance with section 9 or 10 (as the case may be), make an order under this section for 1 or
more of the following purposes:
(a) To require a person to refrain from taking any specified actions or to take any specified actions, or comply with any
specified measures, so as to contribute or be likely to
contribute to either or both of the following:
(i) preventing, containing, reducing controlling, managing eliminating, or limiting the risk of the
outbreak or spread of COVID-19:
(ii) avoiding, mitigating, or remedying the actual or
potential adverse public health effects of the outbreak
of COVID-19 (whether direct or indirect).
(b) by way of example under paragraph (a), requiring persons to do any of the following:
(i) stay in any specified area, place, or premises or refrain from going to any specified area, place, or premises
(including in specified circumstances or unless in
compliance with specified measures):
(ia) permit entry to any specified areas, places, or premises only in specified circumstances or in compliance with specified measures: (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 or place, or refrain from travelling to or from any specified area or place in specified circumstances or unless in compliance with specified measures (for example, refrain from leaving an area unless the person has a COVID-19 vaccination certificate): (v) refrain from carrying out specified activities (for example, business activities involving close personal contact) or carry out specified activities 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: …
The purpose of the Act was:
4 Purpose The purpose of this Act is to support a public health response to
COVID-19 that—
(a) prevents, and limits the risk of, the outbreak or spread of COVID-19 (taking into account the infectious nature and
potential for asymptomatic transmission of COVID-19); and
(b) avoids, mitigates, or remedies the actual or potential adverse effects of the COVID-19 outbreak (whether direct or
indirect); and
(c) is co-ordinated, orderly, and proportionate; and (ca) allows social, economic, and other factors to be taken into account where it is relevant to do so; and
(cb) is economically sustainable and allows for the recovery of MIQF costs; and (d) has enforceable measures, in addition to the relevant voluntary measures and public health and other guidance that also support that response.
Face coverings were not explicitly provided for, although a later amendment
to s 11 of the Act provided for more particular orders, including an order about the
wearing of face coverings.[11]
Is the appeal moot?
[11] COVID-19 Public Health Response (Extension of Act and Reduction of Powers) Amendment Act
[13] The 2021 Order and the 2022 Order have been revoked and the primary legislation under which the Orders were made has been repealed. It follows that the appeal is moot. However, when we raised the issue of mootness at the hearing,
Ms Cameron for the Crown explained that the respondents did not want to rely on
mootness, given the significant powers exercised by the Crown during the COVID-19
pandemic.
When an appeal is moot, the Court has a discretion whether to hear the
appeal.[12] Though a decision to hear a moot appeal should be made only in exceptional
circumstances, broader public interest can justify the hearing of a moot appeal.[13] In
particular, questions of mootness may be less compelling in public law cases.[14]
[12] Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [32], citing R v Gordon-Smith [2008]
[13] Baker v Hodder, above n 12, at [33]. See also Regina v Secretary of State for the Home
[14] Baker v Hodder, above n 12, at [33].
Notwithstanding that the appeal is moot, we consider the issues it raises are of
sufficient legal and public importance that it is right for the matter to be heard and
determined by this Court. The Act reserved extensive powers to the Government and
were exercised in a manner that affected all New Zealanders, with implications for
rights protected under NZBORA. Though the face covering requirements were less
restrictive than some of the other measures taken by the Government in response to
COVID-19, the requirements were a key aspect of the restrictions imposed under the
Act, were in force for almost two years, and applied (albeit subject to exceptions) to
everyone in New Zealand.
The appeal
The grounds of appeal are extensive:
1. The judge was wrong to find that the Minister was not labouring under a material mistake of fact, namely that masks and community mask
mandates were an effective measure to contribute, prevent or limit the
spread of COVID-19 in the community.
1.1. The judge acknowledged that the evidence about the effectiveness of masks was uncertain. 1.2. The judge failed to take into account that none of the types of face coverings mandated by the first respondent were designed to prevent the transmission and spread of respiratory viruses, and especially of aerosols, and by their design and function could not prevent transmission and
spread of aerosols. 1.3. The judge failed to take into account that face coverings such as cloth masks and medical/surgical masks are designed for single use (after which the cloth mask can be washed but the surgical mask must be disposed of) and not designed to be put on and touched and removed multiple times and stored (such as in pockets, bags and glove boxes, and on potentially contaminated surfaces). Further the judge failed to take into account that N95 respirators must be used only after a medical evaluation and be properly fitted and then disposed of in accordance with the regulatory standard. 1.4. The judge failed to correctly consider and apply the hierarchy of scientific evidence by wrongly subordinating the highest level of scientific evidence (such as systematic reviews and meta-analysis of randomised control trials) and accepting low quality levels of scientific evidence (such as observational studies which have inherent biases) which are not suitable to justify coercive public health measures. 1.5. The highest quality scientific evidence in relation to mask effectiveness is the Cochrane Reviews 2020 and 2023 which found that masks could not be shown to make a significant difference in preventing transmission, even in healthcare settings where staff are trained in mask use and undertake fit testing. 1.6 The judge failed to acknowledge that the evidence of effectiveness relied on by the first respondent was low certainty and low quality. 1.7 The judge was wrong to reduce the appellant's case to a difference of expert opinion. Expert opinion is one of the lowest levels of scientific evidence. 1.8. The judge was wrong to hold that the views of the WHO beginning from June 2020 were a complete answer to the mistake of fact ground of review. 1.9. The judge was wrong to hold that there are practical or ethical difficulties with undertaking randomised control trials in relation to face coverings during COVID-19. 1.10. The judge was wrong to find that the first respondent took into account the evidence that had developed over time about the effectiveness of masks and mask requirements before making the Orders. 1.11. The judge was wrong to find that the fact that there was uncertainty about the effectiveness of face masks given the available scientific evidence was part of the advice to the first respondent prior to making to the Orders. 1.12. The judge was wrong to find that the disadvantages of masks and mask requirements for proper use were considered by the first respondent prior to making the Orders. They had not been considered after September 2020 at a time when the mandates were limited to public transport only. 1.13. The judge was wrong to speculate that Minister Verrall would have been unaware that the effectiveness of face masks had uncertainties or that there were disadvantages in requiring them. Minister Verrall made her decision on the basis there was no uncertainty in the evidence about effectiveness and no disadvantages in terms of potential harms to the wearer. 2. The judge was wrong to find that the first respondent was not acting
ultra vires in making the mask mandate Orders.
3. The judge erred in his understanding and application of the
precautionary principle and reduced it to the proposition “better safe
than sorry”.
3.1. In any case the precautionary principle was not applied by the first respondent at the time of making the mask mandate
Orders because although the judge accepted that the evidence
on mask effectiveness was uncertain, the first respondent did
not consider there was any scientific uncertainty about the
effectiveness of masks.
3.2. The precautionary principle if it applied required the first respondent to consider a cost benefit assessment of mask mandates including considering harms, and the first respondent did not do this. 4. The judge was wrong to hold that the mask mandate was a
demonstrably justified limitation under s 14 of the New Zealand Bill
of Rights Act 1990 (NZBORA).
5. The judge was wrong to hold that a mask mandate did not constitute
medical treatment without consent for the purposes of s 11 of the
NZBORA.
6. The judge was wrong to hold that the first respondent considered the
substance of the right in s 11 and wrong to hold that a mask mandate
would nonetheless be justified under the NZBORA.
7. The judge was wrong to hold that s 8 of the NZBORA was not
engaged by the mask mandate.
8. The judge was wrong to find that the Orders were not irrational given
the scope and scale of the exemptions permitted.
9. Although the judge permitted counsel to refer to certain charts and
graphs contained in Ian Miller’s book “Unmasked: Global Failure of
COVID Mask Mandates”, the judge was wrong when he failed to take
them into account in his judgment.
The appellant seeks a decision allowing the appeal and setting aside the
judgment under appeal, a declaration that the Orders were invalid and a declaration
that the respondent's decision to implement a face covering mandate constitutes
medical treatment without consent for the purposes of s 11 of NZBORA. It also seeks
costs.
The evidence
We begin with an overview of the extensive evidence filed in the High Court
as it provides the necessary context for a discussion of the judgment under appeal.
The appellant’s evidence consisted of evidence from:
(a) Associate Professor Byram Bridle — an Associate Professor of Viral Immunology at the University of Guelph in Ontario, Canada;
(b) Mr Tyson Gabriel — an industrial hygienist from the United States; (c) Mr Ian Miller — a professional writer from the United States;[15] (d) Dr Thomas Jefferson (in reply) — a public health physician from Italy; (e) Mr Terry Anderson (in reply) — a retired engineer from Christchurch; [15] The Judge ruled the evidence of Mr Miller inadmissible as it did not meet the requirements for
and
(f) the appellant’s chairman.
In response the respondents had filed affidavits from:
(a) the two Ministers who made the 2021 Order and the 2022 Order respectively — the Rt Hon Christopher Hipkins and the Hon Ayesha
Verrall (together, the Ministers);
(b) the two relevant Directors-General of Health — Dr Ashley Bloomfield and Dr Diana Sarfati;
(c) the Ministry of Health’s Chief Science Advisor — Dr Ian Town; (d) the Principal Modeler in the Department of the Prime Minister and Cabinet — Mr Piers Greenbrook-Held;
(e) a Senior Advisor in relation to COVID-19 related web content — Ms Lisa Rapley; and
(f) Professor Michael Baker and Associate Professor Amanda Kvalsvig, who provided expert evidence, including the Otago University Report
and the Second Otago University Report (discussed further below).
We will first outline the evidence from the Directors-General and the Ministers,
given their evidence is central to understanding the decision to include face covering
requirements in the Orders. We will also outline the Otago University Report, the
Second Otago University Report and the evidence of Professor Baker.[16] Then, we will
summarise the appellant’s evidence.[17]
Respondents’ evidence at the High Court
Dr Bloomfield
[16] We do not consider it necessary to discuss the evidence of Dr Town, Dr Greenbrook-Held and
[17] We do not discuss the evidence of Mr Miller, Mr Anderson or the appellant’s chairman.
Dr Bloomfield was the Director-General of Health and Chief Executive of the
Ministry of Health (the Ministry) from 11 June 2018 to 29 July 2022. He was therefore
responsible for advising the Minister for COVID-19 Response at the time the
2021 Order was made.
Dr Bloomfield’s evidence that COVID-19 placed a significant strain on the
New Zealand healthcare system is not disputed. Dr Bloomfield described COVID-19
as representing “an unprecedented public health challenge”, saying “at various points during the pandemic, I was required to advise the government on the basis of less than
perfect information”. He explained that the speed of development of the pandemic
precluded the exclusive reliance on peer reviewed literature. He said that the Science
and Technical Advisory team regularly reviewed the available literature, drawing on
their familiarity with the process of peer review and expertise in relevant fields,
including statistics, epidemiology, clinical and laboratory medicine, vaccinology and
microbiology.
Multiple sources of information were used to inform advice to ministers. This
included: scientific literature; local data; external experts who were consulted or
coopted onto advisory groups; international relationships; government organisations,
particularly those in the United States and United Kingdom; and information provided
by Airfinity, an organisation specialising in the collection and collation of COVID-19
(and other) data.
Dr Bloomfield discussed the evolving advice and evidence on the use of face
coverings to limit COVID-19 transmission:
(a) 6 April 2020: The WHO advised that there was at that time no evidence that wearing a face covering could prevent a healthy person in the wider
community setting from becoming infected.
(b) 6 May 2020: The Ministry completed a review of the science and policy around face coverings and COVID-19, noting there were no clinical
trials of their efficacy and the WHO found no current evidence to
recommend their use. The potential benefits of their use were
identified, as were their risks and potential downsides.
(c) 10 May 2020: Based on the 6 May 2020 review, the Ministry recommended medical/surgical face coverings for use in contexts
where the risk of exposure to COVID-19 was higher, including
healthcare settings and border management of people coming into
New Zealand from overseas.
(d) 5 June 2020: The WHO updated its advice in the context of the growing recognition of airborne transmission of COVID-19, saying:
Many countries have recommended the use of fabric masks/face
coverings for the general public. At the present time, the widespread
use of masks by healthy people in the community setting is not yet
supported by high quality or direct scientific evidence and there are
potential benefits and harms to consider …
However, taking into account the available scientific studies
evaluating pre- and asymptomatic transmission, a growing
compendium of observational evidence on the use of masks by the
general public in several countries, individual values and preferences,
as well as the difficulty of physical distancing in many contexts, WHO
has updated its guidance to advise that to prevent COVID-19
transmission effectively in areas of community transmission,
governments should encourage the general public to wear masks in
specific situations and settings as part of a comprehensive approach
to suppress SARS-CoV-2 transmission …
(e) 5 August 2020: The Ministry and Dr Bloomfield provided advice based on the WHO’s guidance that face coverings would be most useful when
COVID-19 was present in the community and people were mingling in
close proximity with each other. The advice recommended requiring
face covering usage at Alert Levels 3 and 4 and encouraging face
covering usage at Alert Level 2.
(f) 31 August 2020: It became compulsory for everyone aged 12 or over to wear a face covering on public transport and planes under Alert Level 2.
(g) 10 September 2020: Dr Bloomfield’s advice to Mr Hipkins in a joint report with the All-of-Government COVID-19 Group was that, due to
increasing evidence supporting the use of face coverings where there
was widespread community transmission, face coverings should be
mandated at Alert Level 4 and strongly recommended at Alert Level 3
in public enclosed spaces. The Minister was advised that, as well as
source control and protection, face coverings were associated with
wider societal benefits that could help the broader COVID-19 response.
The advice discussed the effectiveness of different grades of face
coverings, together with the potential harms of face covering use. The
advice was based on advice from the WHO:
83. … suggesting that where there is known or suspected widespread community transmission, wearing masks or face
coverings can reduce the risk of infected people spreading
COVID-19, particularly in situations where people are in
close proximity to each other, and especially when they are
unable to physically distance (such as on public transport).
The WHO also made clear:
83.1 The use of face coverings and masks should be proportionate to the public health risk; 83.2 Face coverings were not recommended for everyone and exemptions should apply in some circumstances (e.g. for children aged under 12 or those with a physical or mental health illness, condition, or disability that makes wearing a face covering unsuitable); 83.3 Clear guidance on the proper use of masks and mask hygiene (including settings where they are to be used) is essential for them to be effective. Incorrect use was considered to undermine the public health benefits of face coverings and exacerbate health risk (e.g. due to the risk of contamination).
(h) 1 December 2020: The WHO updated its interim guidance on face covering use in the context of COVID-19, advising the use of face
coverings as part of a comprehensive package of prevention and control
measures to limit the spread of COVID-19. Face coverings could be
used for protection of healthy persons or to prevent onward
transmission.
(i) April and May 2021: The WHO further updated its advice. Shortly
after, the Centers for Disease Control and Prevention in the United
States (CDC) published a scientific brief on transmission of
COVID-19, which concluded community use of well-fitting face
coverings was an effective tool to prevent transmission.
(j) Mid-2021: By this time, Dr Bloomfield considered the clear trend of the evidence was that physical distancing was of lower effectiveness to
mitigate airborne transmission. He considered it “now widely
recognised” that face coverings were effective at limiting the spread of
COVID-19. Given the high transmissibility of the Delta variant and the speed at which an outbreak could get out of hand, he considered it
important to use all effective and non-invasive measures, including face
coverings, to mitigate potential spread to the greatest extent possible.
(k) 6 August 2021: Cabinet received a briefing on mandatory face coverings.
(l) 13 September 2021: Dr Bloomfield advised the Minister on proposals for interim changes to Alert Level 1 in the context of Delta, including
maintaining the requirement for face coverings on public transport
only. This was on the basis that face covering requirements on public
transport would ensure people remained accustomed to face covering
etiquette, provide additional protection in crowded indoor spaces with
limited ventilation and mitigate the difficulty of contact tracing on
public transport.
(m) 2 December 2021: The 2021 Order came into force. At this time, the Omicron variant was first appearing in South Africa and New Zealand
was moving from the alert level framework to the CPF mitigation
strategy.
(n) 22 December 2021: The WHO published a new guideline on face covering use in community settings, recommending their use as part of
a comprehensive package of control measures. It identified the
advantages as reducing the spread of potentially infectious aerosols or
droplets, including from infected people before they were symptomatic,
encouraging concurrent transmission prevention behaviours and
preventing transmission of other respiratory illnesses. It also
considered potential disadvantages of face covering use by healthy
people. The WHO noted that, given the increased transmissibility of
Delta, most Guidance Development Group members agreed that the
benefits of face covering wearing in the community setting outweighed
potential harms.
(o) 25 January 2022: Mr Hipkins proposed changes to strengthen face covering requirements at “red” in the traffic light framework, including
requiring face coverings to be attached to the head via an ear or head
loop, as well as updating public messaging to encourage the use of
higher-grade face coverings. The strengthened face covering
requirements came into effect on 3 February 2022 but were not subject
to a specific challenge in these proceedings.
(p) March 2022: The Ministry advised that a requirement to wear face coverings be maintained based on “the significant body of available
international evidence on their efficacy around reducing the spread of
COVID-19”. Cabinet relaxed certain other restrictions, at which point
face coverings became the key tool in mitigating transmission of
COVID-19 in New Zealand.
Dr Bloomfield emphasised:[18]
[18] Footnote omitted.
127. At the outset I note that the Ministry of Health consistently advised the adoption of a layered response to COVID-19, as reflected in the
strategy of minimisation and protection. In this multi-layered
approach, measures contained in the CPF sit alongside high levels of
vaccination, good hygiene, physical distancing, the wearing of masks,
testing and where appropriate, personal protective equipment, in
order to minimise spread of COVID-19. The more layers of
protection in place, the harder it is for the virus to spread. Slowing
down the spread of the virus is an important public health objective
to help ensure the health system does not become overwhelmed by a
high number of cases requiring hospitalisation at the same time.
Mr Hipkins
Mr Hipkins was the Minister for Health from 2 July 2020 to 6 November 2020
and then Minister for the COVID-19 Response until 14 June 2022, when he was
succeeded by Dr Verrall. As both Minister of Health and Minister for COVID-19
Response, he acted under the authority of the Prime Minister in administering the Act
and making orders pursuant to ss 9 and 11, including the 2021 Order. He received
public health advice from the Director-General of Health and a wide range of officials.
Mr Hipkins emphasised that his decision-making was carried out in accordance
with s 9 of the Act,[19] and, when assessing relevant considerations, he kept in mind that
no one public health measure is a failsafe but together they add to the overall
effectiveness of the response. He was also mindful that there were a lot of unknowns
during the course of the pandemic, with information relating to COVID-19 and the
effectiveness of various public health measures evolving over time.
[19] Set out below at [131].
Mr Hipkins was mindful that not acting could result in significant and
potentially irreversible consequences to the public health of everyone in New Zealand
and, in assessing the impact of public health measures, he gave weight to the interests
of protecting public health because of the significant and potentially irreversible
consequences of not sufficiently doing so.
In all his decisions, he was satisfied the impacts were proportionate and
justified in the circumstances that existed at the time of the relevant decision/review.
Mr Hipkins’ evidence covered the development of advice he received on the
effectiveness of face coverings and their pros and cons, beginning 6 May 2020. This
included advice from the Director-General in early August 2020, which referenced the
updated WHO advice of 5 June 2020. The advice he received from the
Director-General indicated that: the early deployment of face coverings could help
reduce further transmission, particularly by reducing the risk of infected people
spreading COVID-19 (source control); face coverings were particularly useful if there
was known community transmission and people were in close proximity; promoting
the appropriate use of face coverings by the general population could help reinforce
other public health measures, such as physical distancing; face coverings
complemented other public health measures; and, to be effective, face coverings
needed to be used correctly.
Mr Hipkins discussed the orders he made and the exemptions which applied.
He noted the continual reviews and advice received from the Director-General, for
example in September 2020, that there was increasing evidence supporting the use of
face coverings when there was widespread community transmission.
Mr Hipkins’ evidence covered the various shifts between alert levels and the
impact of the Delta outbreak, including the implementation of the traffic light
framework which came into force on 2 December 2021. He discussed the health and
non-health considerations relevant to that decision. There were regular reviews of the
settings informed by advice from the Director-General and a wide range of officials.
Crown Law provided NZBORA assessments to provide assurance that the proposals
were a justified limit on rights.
The Minister discussed the ongoing review of the public health measures,
which ensured measures remained fit for purpose based on available evidence. The
ongoing review eventually led to the removal of more rights-limiting measures like
COVID-19 vaccination certificates and capacity limits, as well as changes to the
requirements for face coverings. He referred to the reviews and changes made to the
face covering requirements up until June 2022.
Dr Sarfati
Dr Sarfati was the Director-General of Health and Chief Executive of the
Ministry after Dr Bloomfield. She was the Acting Director-General of Health from
29 July 2022 and was appointed to that position full-time from 1 December 2022. As
Dr Bloomfield was before her, Dr Sarfati was responsible for providing advice to the
Minister in respect of COVID-19. She received advice from officials within the
Ministry and the Public Health Agency.
Dr Sarfati explained that the Ministry conducted regular public health risk
assessments (PHRAs) undertaken by a committee of experts drawn from across the
health system. She discussed the PHRA procedure, which involved the Director of
Public Health providing the Director-General with a memorandum containing the
recommended response and advice Crown Law had given on any NZBORA
implications.
Dr Sarfati discussed the PHRA held on 17 August 2022, which recommended
maintaining face covering requirements on public transport and in healthcare settings
but removing them in other settings. Dr Sarfati’s resulting recommendation to the Minister was in line with that. Following that recommendation, the 2021 Order was
revoked and the 2022 Order was made.
Dr Verrall
Dr Verrall was Minister for COVID-19 Response from 14 June 2022 to
1 February 2023. She has a Bachelor of Medicine and a Bachelor of Surgery, a PhD
in tuberculosis epidemiology and was an infectious diseases physician prior to being
elected a Member of Parliament.
Dr Verrall considered all the orders and amendments made by her were
appropriate to achieve the purpose of the Act and either did not limit or justifiably
limited the rights and freedoms affirmed in NZBORA.
On 8 August 2022, Dr Verrall requested a briefing from the Ministry on the
value of ongoing face covering mandates and the potential public health risk of
removing them. Dr Verrall received Dr Sarfati’s advice following the 17 August 2022
PHRA but considered face covering requirements should be retained only in
healthcare settings rather than also on public transport. She was conscious of face
covering fatigue and that face coverings were a key measure that would be looked to
if COVID-19 risk increased and measures had to be tightened. As to the retention of
the face covering requirements in healthcare settings, she considered face coverings
were a tool that could reduce the transmission of COVID-19; adherence to wearing
them was higher when it was a legal requirement as opposed to guidance; and
healthcare settings were particularly vulnerable.
Dr Verrall advised Cabinet of this and, on 12 September, Cabinet formally
agreed to revoke the 2021 Order and implement the face covering settings
recommended by Dr Verrall. That led to Dr Verrall making the 2022 Order.
The Otago University Report
The Otago University Report dated 20 January 2023 was produced for the
purpose of these proceedings. The report aimed to present and critique scientific
evidence relating to the rationale, benefits and adverse effects from population face covering. It stressed the specific strengths of wearing a face covering as a COVID-19
protection measure but also referred to limitations, saying face coverings should be
considered and used as part of a suite of public health measures, including
vaccinations, indoor air ventilation and testing.
From its review of the evidence, the Otago University Report answered the
following questions, “Yes, at a very high level of scientific certainty.”:
| • | Whether face covering reduces transmission at the individual or population |
level.
| • | Whether population face covering has a health advantage over individual face |
covering.
| • | Whether asymptomatic persons can transmit the infection to others. |
The response to the question whether face covering requirements have a health
advantage over advice to the public to wear a face covering was, “Yes, at a high level
of scientific certainty.”; and whether the risks of infection outweigh the adverse effects
of population face covering, “Yes, at a high level of scientific certainty from a health
perspective.”
It concluded:
Evaluating the evidence as a whole
• The evidence we have examined indicates that there is a coherent and consistent body of high quality evidence to support community mask
mandates as an effective contribution to measures to prevent the
transmission and spread of respiratory viruses including Covid-19.
• As shown in this review, the totality of evidence across multiple fields and studies constitutes high-quality evidence in support. The
evidence does not and should not rely on any single study.
• Instead, our review shows strong and consistent evidence in favour of population masking, with additional effectiveness when masking is
mandated in high-risk public settings. The evidence is consistent with
public health principles and the evidence that we have reviewed
shows coherence across multiple fields of investigation including
virology, physics, engineering, and epidemiology.
…
The report noted that in the earlier stages of the pandemic some major policy
decisions had to be made before there had been sufficient time to develop a body of
high-quality, established evidence specific to COVID-19. The need to make policy
decisions in an evolving emergency with high evidence uncertainty was an important
challenge.
The report acknowledged there was no shortcut to a robust assessment of study
quality and said:
Uncritically applying the hierarchy of evidence framework to the body of
published evidence about masks would lead to reliance on a sparse literature
of poor-quality or non-relevant randomised controlled trials. Instead, we have
applied a critical approach based on the principles of causal epidemiology. We
found a body of evidence that, although challenging to produce during an
active pandemic, nevertheless demonstrates consistent findings and coherence
with the principles and rationale of public health.
The Second Otago University Report
The respondents’ evidence included a second report from Otago University
dated 20 April 2023 (the Second Otago University Report). It contained a
methodological critique of the Cochrane Review concerning the effectiveness of
physical interventions to interrupt or reduce the spread of acute respiratory viruses that
was published on 30 January 2023 (the 2023 Cochrane Review). The plain language
summary of the 2023 Cochrane Review was:
Medical or surgical masks
Ten studies took place in the community, and two studies in healthcare
workers. Compared with wearing no mask in the community studies only,
wearing a mask may make little to no difference in how many people caught
a flu-like illness/COVID-like illness (9 studies; 276,917 people); and probably
makes little or no difference in how many people have flu/COVID confirmed
by a laboratory test (6 studies; 13,919 people). Unwanted effects were rarely
reported; discomfort was mentioned.
N95/P2 respirators
Four studies were in healthcare workers, and one small study was in the
community. Compared with wearing medical or surgical masks, wearing
N95/P2 respirators probably makes little to no difference in how many people
have confirmed flu (5 studies; 8407 people); and may make little to no
difference in how many people catch a flu-like illness (5 studies; 8407 people), or respiratory illness (3 studies; 7799 people). Unwanted effects were not
well-reported; discomfort was mentioned.
The Second Otago University Report noted that the studies included in the
2023 Cochrane Review could be vulnerable to selection bias, measurement error and
random error arising from a lack of study power,[20] as well as discrepancies in how the
[20] We understand “study power” to refer to the likelihood of detecting an effect if an effect actually
findings were reported and disseminated. It noted that, on 10 March 2023, Cochrane
issued a public statement and apology, saying the review had been “widely
misinterpreted”:
Many commentators have claimed that a recently-updated Cochrane Review
shows that ‘masks don’t work’, which is an inaccurate and misleading
interpretation.
It would be accurate to say that the review examined whether interventions to
promote mask wearing help to slow the spread of respiratory viruses, and that
the results were inconclusive. Given the limitations in the primary evidence,
the review is not able to address the question of whether mask-wearing itself
reduces people’s risk of contracting or spreading respiratory viruses.
The review authors are clear on the limitations in the abstract: ‘The high risk
of bias in the trials, variation in outcome measurement, and relatively low
adherence with the interventions during the studies hampers drawing firm
conclusions.’ Adherence in this context refers to the number of people who
actually wore the provided masks when encouraged to do so as part of the
intervention. For example, in the most heavily-weighted trial of interventions
to promote community mask wearing, 42.3% of people in the intervention arm
wore masks compared to 13.3% of those in the control arm.
The original Plain Language Summary for this review stated that ‘We are
uncertain whether wearing masks or N95/P2 respirators helps to slow the
spread of respiratory viruses based on the studies we assessed.’ This wording
was open to misinterpretation, for which we apologize. …
The Second Otago University Report concluded:
The Cochrane review can be read as a statement that the RCT component of
the evidence about the effectiveness of mask use is small and inadequate to
support robust conclusions. That leaves the large volume of other
higher-quality scientific evidence about the effectiveness of mask use.
Consequently, the summary contained in our previous report still stands:
“...our review shows strong and consistent evidence in favour of population
masking, with additional effectiveness when masking is mandated in high-risk
public settings. The evidence is consistent with public health principles and
the evidence that we have reviewed shows coherence across multiple fields of
investigation including virology, physics, engineering, and epidemiology.”
Professor Baker
Professor Baker, of the Department of Public Health at the University of Otago,
was the Director of the Health Environment & Infection Research Unit (HEIRU) at
the University of Otago. The HEIRU was a collaboration of researchers focused on
reducing the impact of infectious diseases and adverse environmental factors on
population health. It aimed to provide evidence-based recommendations and advice
to support New Zealand and international agencies and practitioners in their disease
prevention and control activities. Professor Baker worked with members of HEIRU
to prepare the Otago University Report and, later, the Second Otago University Report.
Professor Baker acknowledged that, in early 2020, he publicly commented that
he did not consider face coverings very effective, particularly given the virus could
infect via a person’s eyes but said that was no longer his view and the effectiveness of
face coverings as a prevention measure “is now widely accepted by the scientific
community”.
Appellant’s evidence at the High Court
Dr Bridle
Dr Bridle is an Associate Professor of Viral Immunology at the University of
Guelph in Ontario, Canada. He has a PhD in immunology and is both an immunologist
and virologist.
Dr Bridle acknowledged the value of wearing medical grade surgical face
coverings to reduce the transmission of respiratory pathogens from individuals who
have signs and symptoms of illness. However, in his opinion, policies that require
asymptomatic people to face cover results in net harm. His view is that the way testing
was conducted in many countries, including New Zealand, led to erroneous labelling
of asymptomatic people as potential spreaders of COVID-19. This, he considered,
resulted in inappropriate mandating of face covering for people who do not represent
a risk to the health of others.
Dr Bridle referred to the recognition that COVID-19 was effectively spread via
aerosols coming from the respiratory system and that the face coverings in common
usage (surgical and cloth face coverings, and even KN95 masks) lacked the ability to
prevent the spread of aerosols. In any event, he said that it was “futile” to wear a mask
covering the nose and mouth, given the infectious agent can enter the body via the
eyes.
Dr Bridle conducted a search of the published peer-reviewed scientific
literature, describing that as the gold standard of evidence. He reviewed one study in
Bangladesh and another conducted in Denmark, concluding that there was no
trustworthy evidence to suggest a benefit of face covering in preventing infection with
COVID-19 specifically. Discussing recent pre-pandemic randomised controlled trials
(RCTs) conducted in the context of other respiratory pathogens, he stated that two
supported face covering but 14 did not. He said meta-analyses published during the
pandemic were contradictory, 10 not supporting face covering, five reporting it was
effective and one being equivocal.
Dr Bridle regarded the peer reviewed scientific publications suggesting
low-cost face coverings are effective at reducing the transmission of COVID-19 as
flawed because the publications argued that asymptomatic people are a substantial
source of transmission. Dr Bridle said most of the studies that claimed to report a
benefit of face coverings were based on experiments conducted in highly controlled
and artificial laboratory environments. They failed to capture the many nuances of
real-world face covering, for example non-sealing facial features like beards.
Dr Bridle then critiqued the WHO’s advice and said:
132 … the interim guidance documents provided by the WHO did build up a reasonable, yet limited number of peer-reviewed studies that
focused on face masks, not just respirators. However, they seem to
have been selective in their disclosure of the literature, with an
apparent bias towards only citing ones that supported their
recommendations. … There was no discussion about the severe
limitations, nor fatal flaws of any of the studies.
Dr Bridle concluded that “based on the overwhelming rate of the evidence…
face coverings cannot achieve the purpose of the [A]ct and [the Orders]”. He
explained:
210 In my professional and expert opinion, it is reasonable to require
people who are sick with the disease known as COVID-19, meaning
that they have signs and/or symptoms of illness, to wear a mask if
they must go into public places. Better yet, staying home and away
from public places would be the ideal way for these individuals to
practice respectful social hygiene.
211 It is also my professional and expert opinion, based on the overall
weight of the scientific evidence as provided in this affidavit, that
requiring asymptomatic individuals to wear masks, regardless of their
age, is non-sensical and causes net harm to the individual, those
around them, the environment, and wildlife. In some cases, such as
young children whose immune systems are rapidly maturing,
prolonged masking can cause irreparable immunoregulatory damage
that will increase the suffering of this demographic from allergies,
asthma and/or autoimmune diseases throughout their lifetimes. The
environmental impact of masking could take hundreds of years to
resolve.
Mr Gabriel
[60] Mr Gabriel is an industrial hygienist, occupational safety and health
professional based in the United States. In his professional opinion, any competent
response to dealing with COVID-19 would be focused on dilution, filtration and
destruction of the pathogen, and that face coverings do not seal to the face and cannot
offer protection.
In Mr Gabriel’s opinion, face covering does not work to prevent infectious
disease transmission. He concluded that the face covering mechanism studies, such
as the Bangladesh study, always assumed that face coverings had efficacy that met
scientific standards and best practice, and did not address the alternative position. He
considered that the face covering health studies did not emulate the real-world
scenarios of children and adults wearing face coverings for hours in a day and that the
public were not informed of the health risk in wearing face coverings. In his opinion,
the WHO cherry-picked studies by scientists who “lacked integrity and the proper
expertise” and studies did not evaluate when face coverings became a source of
contamination.
Dr Jefferson
Dr Jefferson is a medically qualified public health physician and a clinical
epidemiologist. His past roles include being a medical advisor to the WHO and
Medical Officer to the United Nations. Dr Jefferson was the lead author of the
2023 Cochrane Review, introduced above, as well as earlier Cochrane reviews on
influenza vaccines and antivirals.[21]
[21] See above at [48]–[50].
Dr Jefferson addressed the 2023 Cochrane Review, which is the fifth update of
prior reviews on physical interventions to interrupt the spread of respiratory viruses
published in 2007, 2009, 2010, 2011 and 2020. The update included an additional
11 RCTs, bringing the total number of RCTs to 78. Dr Jefferson summarised the
results as follows:
13. However, by way of summary, in terms of the effects of wearing
medical or surgical masks, the results show that compared to no
masks, the 12 trials in the review found that wearing masks in the
community probably makes little or no difference to the outcome of
influenza-like o[r] covid-19 like illness. Equally masks showed no
effect on laboratory-confirmed influenza or SARS-COV-2 outcomes.
The five further included trials showed no difference between one
type of mask over the other. In addition, the differences between the
trials’ results that identified the agent and those that did not are low,
indicating the[y] all give much the same result — that is the nature of
the agent does not affect the outcome.
14. The overall conclusion is that [we] are uncertain whether wearing
masks of N95/P2 respirators helps to slow the spread of respiratory
viruses based on the studies we assessed. Hand hygiene programmes
may help to slow the spread of respiratory viruses. However, as soon
[as] a structured programme ends, the effects disappear.
Dr Jefferson did not consider there was good data to support face covering
mandates. He said the review findings report relatively low adherence to face covering
wearing, akin to what happens in the real world. With better adherence and
high-quality face coverings, there might be a reduction in risk in specified settings.
He noted that data over the lifetime of the pandemic showed that mandates which
affected the whole population did not work. Even in high adherence populations such
as Japan and China they have not changed the viral circulation or stopped a rise in
infections.
Dr Jefferson critiqued the Otago University Report, for example saying that
what the report described as certainty was the product of beliefs based on poor quality
studies. In his opinion, when higher quality evidence was assessed, no effect of face
coverings in any setting was visible. Over 20 years of evidence from RCTs in different
settings, populations and agent circulation has failed to find any evidence of effect.
Judgment under appeal
Six grounds of judicial review were advanced by the appellant in the
High Court:[22]
[22] Judgment under appeal, above n 4, at [3].
(a) Ultra vires — that the Orders were unlawful “because face coverings are largely ineffective at contributing to preventing or limiting the risk
of the outbreak or spread of COVID-19”.
(b) Mistake of fact — that the relevant Ministers were “labouring under a material mistake of fact, namely that face coverings are an effective
measure to contribute to preventing or limiting the risk of the outbreak
or spread of COVID-19”.
(c) Breach of s 11 of the New Zealand Bill of Rights Act 1990 (NZBORA) — that the decisions infringed the right to refuse to
undergo a medical treatment.
(d) Breach of s 14 of NZBORA — that the decisions breached the right of freedom of expression.
(e) Breach of s 8 NZBORA — that the decisions breached the right to life.
(f) Irrationality — that the Orders were irrational “as they lacked efficacy of purpose and the reasoned decision-making necessary for validity”.
Mistake of fact (and ultra vires)
As to the ultra vires and mistake of fact grounds,[23] the Judge described the
challenge as based on the proposition that face coverings have no material benefit in
preventing the spread of COVID-19 and have health disadvantages.[24] He noted the
extensive opinion evidence from the appellant’s witnesses and the focus of counsel’s submissions on the reasons why face coverings were said to be both ineffective and
potentially harmful.[25]
[23] At [27], the Judge noted that no discernible argument was advanced on the ultra vires ground but
[24] At [26].
[25] At [26].
The Judge accepted that mistake of fact can be a ground of challenge to a
discretionary decision by way of judicial review.[26] He canvassed the evidence of the
[26] At [29].
Ministers and the Directors-General of Health.[27] He accepted that Mr Hipkins
considered that the face covering requirements were appropriate as part of the
measures covered by the 2021 Order and that he considered they contributed to
inhibiting the transmission of COVID-19.[28] The Minister had received detailed advice
from the Director-General over a considerable period.[29] In light of that advice and the
expert views provided, the Judge concluded there was no basis for a challenge to the
2021 Order based on mistake of fact and that the views of the WHO beginning
June 2020 were a complete answer to this ground of review.[30] Referring to the
evidence from Dr Sarfati and Dr Verrall, the Judge found there was also no basis for a
challenge to the 2022 based on mistake of fact.[31]
[27] At [46]–[58].
[28] At [51].
[29] At [51].
[30] At [51].
[31] At [57].
In the Judge’s view, the best the appellant could do was establish there were
experts who held contrary opinions to those relied upon by the Ministers and that, he
said, did not establish mistake of fact as a ground of judicial review.[32]
Reformulation of the argument
[32] At [45].
It appears that the appellant’s argument in the High Court morphed into a
submission that the focus of challenge was not mistake of fact but rather the adequacy
of the advice given to the Ministers.[33] This line of argument relied on the principle
that, in certain circumstances, ministers must have particular matters drawn to their attention by way of a fair, accurate and adequate report before a legitimate decision
could be said to have been made.[34]
[33] At [59]–[60].
[34] At [60], citing Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at
The Judge noted the difficulties with the reformulation.[35] Not only was it not
pleaded or advanced in written submissions, but the considerations allegedly not taken
into account were not identified to enable the respondents an opportunity to respond
to the contention.[36] He regarded it as difficult and potentially procedurally unfair for
the Court to address the argument.[37] In any event, he dismissed the argument on its
merits, finding the advice to the Ministers was adequate and that the Ministers were
aware that face coverings had potential disadvantages.[38]
Section 14 of NZBORA – freedom of expression
[35] Judgment under appeal, above n 4, at [62]–[68].
[36] At [62]. See CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA); and Carltona Ltd v
[37] Judgment under appeal, above n 4, at [62].
[38] At [63]–[69].
The Judge concluded s 14 was clearly engaged by the face covering
requirement because:[39]
[39] At [74].
(a) requiring a person to wear a face covering interferes with their ability to verbally communicate — the WHO had noted a disadvantage of
“difficulty with communicating clearly”;
(b) verbal communication can be assisted by the physical presentation of the face and particularly the mouth; and
(c) the presentation of the face can portray meaning in the absence of verbal communication.
However, the Judge was satisfied the limitation was demonstrably justified.[40]
Section 11 of NZBORA – right to refuse to undergo medical treatment
[40] At [81]. See below at [173]–[175] for a summary of the Judge’s reasons for this finding.
The Judge noted that Mr Hipkins had not been advised that s 11 was relevant
mistake of fact.
[41]–[56].
Commissioners of Works [1943] 2 All ER 560 (CA) for discussions on mandatory relevant
considerations.
[2018] 1 NZLR 948.
(2nd ed, LexisNexis, Wellington, 2015) at [11.7.2]–[11.7.4].
Disability Commissioner v S (CA231/2023) [2025] NZCA 190 at [154]; Winton Property
Investments Ltd v Minister of Finance [2023] NZCA 368 at [103]; Charter Holdings Ltd v
Commissioner of Inland Revenue [2016] NZCA 499, (2016) 27 NZTC 22-075 at [76]; and Taylor
v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [94].
[2004] EWCA Civ 49, [2004] QB 1044. See also Ririnui v Landcorp Farming Ltd, above n 61,
at [54], n 58; Smith v Attorney-General [2017] NZHC 136, [2017] NZAR 331 at [55]; Zhao v
Legal Complaints Review Officer [2012] NZHC 3247, [2013] NZAR 193 at [70]; and Zafirov v
Minister of Immigration [2009] NZAR 457 (HC) at [80].
on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021)
at 1062–1063.
of Immigration, above n 62; and Regina v Criminal Injuries Compensation Board, Ex parte A
[1999] 2 AC 330 (HL).
(HC) at 637.
Sweet & Maxwell, United Kingdom, 2023) at 333–337, which suggests there is a similar
distinction in England and Wales; and Administrative Decisions (Judicial Review) Act 1977 (Cth),
s 5, which establishes a similar distinction in Australian federal law.
above n 62, at [61]–[66].
Zafirov v Minister of Immigration, above n 62.
to be Church Trust v Minister for COVID-19 Response [2024] NZCA 81, [2024] 2 NZLR 746.
omitted).
Bioethics and Human Rights SHS/EST/BIO/06/1, SHS.2006/WS/14 (19 October 2005).
following per William Young J dissenting.
2026, [2022] 3 NZLR 475; Four Aviation Security Service Employees v Minister of COVID-19
Response [2021] NZHC 3012, [2022] 2 NZLR 26; and GF v Minister of COVID-19 Response
[2021] NZHC 2526, [2022] 2 NZLR 1.
judgment].
NZCA 141, (2014) 21 PRNZ 753 at [24].
25 PRNZ 637 at [45] per McGrath, Glazebrook and Arnold JJ.
per McGrath, Glazebrook and Arnold JJ.
[2006] NZSC 63, [2006] 3 NZLR 523 at [15].
[223]–[224].
and Chief of Defence Force v Four Members of the Armed Forces [2025] NZSC 34, [2025] 1
NZLR 21 at [157].
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