New Health New Zealand Ltd v Minister for Covid-19 Response
[2023] NZHC 2647
•21 September 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-379
[2023] NZHC 2647
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016 IN THE MATTER
of COVID-19 Public Health Response (Protection Framework) Order 2021 and COVID-19 Public Health Response (Masks) Order 2022
BETWEEN
NEW HEALTH NEW ZEALAND LTD
Applicant
AND
THE MINISTER FOR COVID-19 RESPONSE
First Respondent
ATTORNEY-GENERAL
Second Respondent
Hearing: 27 and 28 June 2023 Appearances:
C F J Reid and L M Hanson for the Applicant K B Bell and E J Cameron for the Respondents
Judgment:
21 September 2023
JUDGMENT OF COOKE J
NEW HEALTH NEW ZEALAND LTD v THE MINISTER FOR COVID-19 RESPONSE [2023] NZHC 2647
[21 September 2023]
Table of Contents
Para Nos
Preliminary issues[6]
Mr Miller’s evidence[6]
Challenge to repealed Order[11]
Earlier adjournment application[14]
Relevant background and decisions[15]
The relevant powers[21]
First and second grounds of review — ultra vires and mistake of fact[25]
Mistake of fact as a ground of review[26]
Application in the present case[32]
Randomised Control Trials[37]
The 2021 Order[46]
The 2022 Order[54]
Alternative formulation of the argument[59]
Section 14 NZBORA — Freedom of expression[70] Section 11 NZBORA — Right to refuse to undergo medical treatment[84] Irrationality[96]
Conclusion[104]
[1] The applicant is an incorporated society which describes itself as a consumer- focused health organisation with objectives to advance and protect the best interests and health freedoms of consumers. It has previously brought proceedings challenging the fluoridation of drinking water supplies.1 In this proceeding it challenges decisions made by Ministers of Health under the COVID-19 Public Health Response Act 2020 (the Act) requiring the mandatory wearing of face masks in certain circumstances. It challenges two such orders in its amended statement of claim, the COVID-19 Public Health Response (Protection Framework) Order 2021 (the 2021 Order) made on 30 November 2021, and the COVID-19 Public Health Response (Masks) Order 2022 (the 2022 Order) made on 12 September 2022.
[2] The 2021 Order introduced a series of requirements under what was known as the “traffic light” system. That included face mask requirements. Generally this required the use of face coverings on public transport, essential retail businesses,
1 New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR 948.
public facilities operated by central and local government, and healthcare services (subject to certain exemptions). The 2022 Order removed all the face mask requirements except for certain people in certain health service premises. In effect it only required face masks to be worn to visitors to health service premises, and excluded the employees of those places and the patients/residents. Subsequent to the hearing of this application the 2022 Order has been revoked. There are now no face mask requirements in place.
[3] The applicant advances six grounds of judicial review in its amended statement of claim:
(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”.
It seeks declarations that the two Orders are invalid.
[4] The applicant has filed extensive expert evidence in support of the claims. The evidence is from: Associate Professor Byram Bridle — an Associate Professor of viral immunology of the University of Guelph in Ontario Canada; Mr Tyson Gabriel — an industrial hygienist from the United States of America; Mr Ian Miller — a professional writer from the United States of America; and (in reply) Doctor Thomas Jefferson — a public health physician from Italy. The applicant’s chairman has also filed an affidavit.
[5] In response the respondents have filed affidavits from: the two Ministers who made the decision — the Honourable Christopher Hipkins and the Honourable Ayesha Verrall; the two relevant Director-Generals of Health — Sir Ashley Bloomfield and Dr Diana Sarfati; the Ministry of Health’s Chief Science Advisor — Dr Ian Town; Mr Piers Greenbrook-Held — the Principal Modeler in the Department of Prime Minister and Cabinet; Ms Lisa Rapley — the Senior Advisor of the Ministry in relation to web content; and expert evidence from Professor Michael Baker and Associate Professor Amanda Kvalsvig.
Preliminary issues
[6]There are a number of preliminary issues.
Mr Miller’s evidence
[7] The respondents formally objected to the evidence filed by the applicants from Mr Ian Miller. The applicant relied on Mr Miller’s evidence as expert evidence. I heard the objection at the commencement of the hearing and concluded that his evidence was inadmissible. I accepted that his evidence did not meet the requirements for expert evidence under s 25 of the Evidence Act 2006 or the High Court Rules 2016. I indicated I would provide my reasons in the substantive judgment.
[8] Mr Miller has a Bachelor of Arts in Cinematic Arts from the University of Southern California. He describes himself as a professional writer. His four page affidavit attached as an exhibit his book published in 2022 entitled “Unmasked: The
Global Failure of COVID Mask Mandates”.2 I understood that it was the book itself that was put forward as the expert evidence.
[9] Mr Miller has no training or experience to enable him to provide expert evidence to the Court on the effectiveness or otherwise of masks or mask mandates in relation to COVID-19. The only relevant experience he describes is the research he undertook for the purposes of his book. In describing his suggested expertise he says that his work was used by an advisor to President Trump and that it was presented to the President in meetings and COVID-19 briefings. He also says that his work has featured on national news broadcasts in the United States and has been referenced by major politicians such as the Governor of Florida.
[10] These activities do not mean that Mr Miller has “specialised knowledge or skill based on training, study, or experience” as is required by the definition of an expert and expert evidence in s 4 of the Evidence Act. Moreover the presentation of a book as expert evidence does not address the requirements for such evidence in cl 3 of the Code of Conduct for Expert Witnesses in sch 4 of the High Court Rules. That is because it does not address appropriately formulated questions of expert opinion arising from issues before the Court. It did not state the issues within the witnesses expertise that he was asked to address, the literature or other material he has taken into account to form the opinions in answer to those questions, or the facts and assumptions on which the expert opinions are based as required by the Code. These requirements are important as they are directed at ensuring that such evidence is focused on specific questions arising from the proceedings to which properly qualified expert opinion is directed. A book is not expert evidence.
Challenge to repealed Order
[11] During the course of the hearing I also raised whether the applicant’s challenge to the 2021 Order should be addressed given that the 2021 Order had been revoked, and replaced by the 2022 Order. I questioned whether the challenge to the revoked Order was necessary, or appropriate, and whether the challenge should be considered by reference to the 2022 Order only. The 2021 Order was in effect when the
2 Post Hill Press, New York, Nashville, 2022.
proceedings were first commenced, but had been replaced by the 2022 Order, following which the applicant had amended its statement of claim. There were previous orders in the nature of mask mandates in existence before the 2021 Order which were not challenged in the proceedings.
[12] Counsel for the respondents indicated that they did not intend to take any point arising from this and was content to address all aspect of the challenge on their merits. That is an understandable stance. It is nevertheless important for the Court to focus on the decisions of practical significance, particularly to ensure that judicial review remains a simple, untechnical and prompt procedure. I also do not consider this case is in the same category as other COVID-19 challenges where declaratory relief in relation to expired unlawful decisions had importance in vindicating the rights of those adversely affected by them.3 But I accept that, here the two challenged decisions were inherently interrelated. For this reason I will address the applicant’s challenges by reference to both the 2021 and 2022 decisions.
[13] Since the hearing, and while judgment was awaited, the 2022 Order has been revoked. For that reason the challenge is now moot. But given that the matters have been fully argued I will nevertheless address them.
Earlier adjournment application
[14] For completeness I also note that, leading up to the hearing of the challenge the applicant made a late application for discovery by the respondent, and also a related application to adjourn the fixture. I declined the applications for the reasons in my minute of 26 May.4 In terms of the adjournment application, the applicant’s point that the decisions were under review and could be changed did not seem to me to be a reason to adjourn the proceeding. Rather judicial review challenges of this kind should be determined as soon as practicable.
3 Borrowdale v Director-General of Health [2020] NZHC 2090, [2020] 2 NZLR 864 at [288]– [291]; Grounded Kiwis Group Inc v Minister of Health [2022] NZHC 832, [2022] 3 NZLR 19 at [430]–[432].
4 New Health New Zealand Inc v South Taranaki District Council HC Wellington CIV-2022-485- 379, 26 May 2023.
Relevant background and decisions
[15] I do not intend to describe the background to the relevant decisions that are challenged in any detail. It would unnecessarily lengthen this judgment to do so.
[16] The measures taken to address the impacts of COVID-19 were extensive and now subject to a number of decisions of the Court over the years. New Zealand’s first responses to the pandemic in early 2020 involved what was called an elimination strategy, and involved lockdowns imposed under the Health Act 1956. Those measures were addressed by a full Court of the High Court in Borrowdale v Director- General of Health.5 Shortly before the hearing of that challenge, new legislation creating powers to address COVID-19 was enacted. The Act received Royal assent on 13 May 2020. It has been subsequently amended a number of times with changing requirements. A requirement for face masks was first introduced under this legislation on 30 August 2020 with the requirement that they be used on public transport and on aeroplanes at what was then called alert level 2.6
[17] Circumstances changed over the course of the following year. They included the growing availability of vaccines and also the emergence of variants. The first vaccine mandates were introduced under the Act later in 2021, and the first challenges to those mandates were then heard.7 Subsequent High Court decisions questioned whether the Act should specifically authorise such vaccine mandates.8 The legislation was subsequently amended.9 In late 2021 the prominent variant was the Delta variant and October 2021 the Government moved to what was called a minimisation and protection strategy.
[18] It was in the context of the Government’s new strategy that the 2021 Order was promulgated as a consequence of a decision of Minister Hipkins. It came into effect on 2 December 2021 and implemented what was known as the traffic light system.
5 Borrowdale v Director-General of Health, above n 3.
6 COVID-19 Public Health Response (Alert Level Requirements) Order 2020.
7 GF v Minister for COVID-19 Response [2021] NZHC 2526, [2022] 2 NZLR 1, was heard in September 2021.
8 Four Aviation Security Service Employees v Minister of COVID-19 Response [2021] NZHC 3012, [2022] 2 NZLR 25, at [129]; Four Midwives v Minister for COVID-19 Response [2021] NZHC 3064 at [74]–[75].
9 COVID-19 Response (Vaccinations) Legislation Act 2021.
This included a number of measures including vaccine certificate requirements, passenger limits, restrictions on gatherings and business operations, physical distancing, QR codes and associated record keeping systems, the ability to impose lockdowns, and the challenged face mask requirements. The face mask requirements carried over requirements from the earlier alert system.
[19] In late January 2022 face mask requirements were then tightened — for example people in workplaces captured by vaccine requirements were required to wear a medical grade mask. At that stage the more contagious Omicron variant was emerging.
[20] At the end of June 2022 the Government then eased the COVID-19 requirements under a new strategy. Under that strategy the 2021 Order was revoked and the new 2022 Order was implemented by Minister Verrall. The face mask requirement was limited to health facilities such as rest-homes and medical centres. As indicated even these requirements have now been removed by decisions made following the hearing.
The relevant powers
[21] The Act has been amended over time as the pandemic, and the response to it has evolved. At the time of both the 2021 and 2022 Orders the empowering provision remained in the following relevant terms:
11 Orders that can be made under this Act
(1)The Minister or the 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 persons 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:
…
[22] As a consequence of amendments made to the Act on 26 November 2022 by the COVID-19 Public Health Response (Extension of Act and Reduction of Powers)
Amendment Act 2022 s 11 was replaced with a section that allowed more particular orders, including an order concerning the wearing of face masks under s 11(3). That was not in force at the time that either of the challenged Orders were made, however. This further reduces any precedent value this judgment may have.
[23]In addition, at the time of both decisions the Act had the following purpose:
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.
[24] There were also pre-requisites that are relevant to the making of Orders in s 11 set out in the Act, but they are not raised as part of this challenge.
First and second grounds of review — ultra vires and mistake of fact
[25] The applicant addressed its grounds of review based on ultra vires and mistake of fact together.
Mistake of fact as a ground of review
[26] I first refer to the overall way in which the applicant presented its case. Its challenge was based on the proposition that face masks have no material benefit in preventing the spread of COVID-19 and have health disadvantages. Its arguments were based on the opinion evidence from the applicant’s witnesses and other evidence
which was addressed at some length by counsel. The first 71 pages of the applicant’s written submissions focussed on that evidence, and the reasons why face masks were said to be both ineffective and potentially harmful. The grounds of review were then addressed relatively briefly. For example the ultra vires/mistake of fact ground was addressed over only one page in the written submissions.
[27] No discernible argument was advanced on the ultra vires ground. Rather the written submissions, and Ms Hansen’s oral submissions, focused on the medical/scientific evidence and the alleged mistake of fact. I understood that the alleged mistake was as pleaded — that the decision-makers thought that face coverings were an effective measure to contributing, preventing, or limiting the spread of COVID-19 when this was not true.
[28] The applicant did not refer me to any authorities concerning mistake of fact as a ground of judicial review in support of these arguments. The respondent referred to authorities, including Woods v Legal Complaints Review Officer where Kós J said:10
Error of fact is a problematic concept in the spectrum of judicial review grounds. Factual challenge is more normally the subject of appellate rather than review jurisdiction. Where review is concerned, the courts take a circumspect view of factual error. But the courts will intervene where factual error undermines jurisdiction, where the factual inquiry was clearly inadequate or otherwise the product of an unfair process or where a finding of fact is utterly unsupportable on the evidence.
[29] Mistake of fact can be a ground to successfully challenge a discretionary decision by way of judicial review. The English and Welsh Court of Appeal outlined a test for mistake of fact as a ground of appeal in E v Secretary of State for Home Department.11 That approach has been applied in New Zealand.12 In Queenstown Lakes District Licencing Agency Inspector v Turnbull Group Ltd Whata J adapted this approach when formulating a test for mistake of fact as a ground of appeal on a
10 Woods v Legal Complaints Review Officer [2013] NZHC 674 at [39] (footnote excluded). I do not consider the concept of jurisdictional error to be of assistance, however – see Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thompson Reuters, 2021) at [23.5.3].
11 E v Secretary of State for Home Department [2004] 2 WLR 1351,[2004] EWCA Civ 49, [2004] 1 QB 1044 at [61]–[66].
12 See Zafirov v Minister for Immigration [2009] NZAR 457 at [79]–[80]; Thorndon Quay Collective Inc v Wellington City Council [2022] NZHC 2356 at [148]–[150].
question of law.13 As a ground of judicial review I consider that the following further adjustment may be consistent with the simple, untechnical and prompt approach to judicial review in New Zealand:
(a)There must be a mistake in relation to a matter of established fact. Judicial review is not an appropriate procedure for addressing factual contests, and the mistake of fact ground of review does not arise simply because the decision-maker could have reached a different conclusion on the facts.
(b)The mistake must be of sufficient importance to lead the Court to conclude that there has been a failure by the decision-maker to exercise the discretionary power in a lawful way.
[30] When applying the second of those steps considering other grounds of judicial review by analogy may be of assistance. The distinction between error of law and error of fact “… is the sole dichotomy to survive the purge on formalist legal method during the closing decades of the last century” and its existence is “unstable”.14 Indeed it is not unusual for the Court to describe the Court’s intervention when there has been a mistake of fact by reference to other grounds of review. In Ririnui v Landcorp Farming Ltd, for example, the Supreme Court upheld a judicial review challenge because the relevant decision-making Ministers had understood that a Treaty claim had been settled when it had not. Whilst the ground of review was not described as “mistake of fact” it was this factual error led the Court to conclude there had been an unlawful decision.15
[31] Not all mistakes of fact will lead to the discretionary power being improperly exercised. The mistake must effect the legality of the decision. So mistake of fact in relation to a mandatory relevant consideration might be of sufficient importance to warrant the Court’s intervention, whereas a mistake in relation to a permissive
13 Queenstown Lakes District Licencing Agency Inspector v Turnbull Group Ltd [2011] NZAR 554 at [35]–[36]. See also Zhao v The Legal Complaints Review Officer [2012] NZHC 3247 at [66]– [83].
14 Philip A Joseph “Administrative Law Retrospective” [2023] 30 NZULR 387 at 406–407.
15 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [93]–[95] and [98]– [99].
consideration might not. In the end the mistake of fact must be sufficiently significant to warrant the intervention of the Court in its role of supervising the legality of discretionary decision-making.
Application in the present case
[32] The fundamental difficulty with the applicant’s challenge is that the effectiveness of face coverings as a measure to address the risk of the spread of COVID-19 is a matter of medical or scientific opinion rather than a matter of fact. It is not always easy to identify the point where matters of opinion become matters of fact. There is a continuum where, at some point, one becomes the other. Where that point is reached is itself a matter of opinion. An applicant cannot establish this ground of review simply by establishing that alternative opinions, or that an alternative view of the facts is available. Here the Act itself expressly recognises that the decisions here are to be based on expert opinion as s 9 obliges the Minister to seek the advice of the Director-General of Health on such matters.
[33] During the pandemic experts in particular fields, such as epidemiology, have been required to form views, and advise decision-makers, on measures to address COVID-19. Whilst consensus has formed on many issues it is inevitable that there will be differences of opinion, sometimes strongly expressed. Disagreement can become more firmly felt when measures are imposed that restrict individual rights. That has been particularly evident with vaccine mandates, but this is not limited to that issue. This case involves another contest of this kind. The evidence filed by the applicant, and the other sources it has relied upon, show that there is a body of expert opinion that disagrees with the proposition that face coverings assist in reducing the risk of spread of COVID-19. But equally there is a body of expert opinion that face coverings do so assist. And it is this body of expert opinion, including from the New Zealand Director-Generals of Health, that have been relied upon by the Ministers, as is contemplated by s 9(1)(a) of the Act. The fact that the applicant disagrees with these views, and is able to present alternative opinions to the Court, does not establish a ground of judicial review.
[34] What the applicant sought to do was persuade the Court that its experts were right, and that the Ministers, the Director-Generals of Health, and the experts they relied on were wrong. By itself that would be difficult task, especially given the procedural limits of judicial review. But for this ground of review the applicant would need to go further to the point of establishing that their experts’ opinions were matters of established fact.16 It has not done so.
[35] I should briefly explain why this approach might be seen to be different from other COVID-19 related judgments. The Court has been required to reach conclusions on matters of disputed medical scientific opinion in some of the previous COVID-19 judicial review challenges. But that has been required because a right under the NZBORA has been engaged — the right to refuse medical treatment under s 11. So in the vaccine mandate cases the Court was required to address whether the limitation of that right arising from the vaccine mandates was demonstrably justified in accordance with s 5 of the NZBORA.17 In the applicant’s previous judicial review challenges to the fluoridation to drinking water supplies a similar issue arose.18 So the Court was required, as a matter of law, to address the question of disputed medical opinion to assess whether the measures were demonstrably justified. Even in that context, however, the Court has noted the difficulty involved in it reaching conclusions on disputed matters of medical opinion.19
[36] Here the applicant argues that s 14 is engaged. It also raises other rights under the NZBORA. I address those particular grounds of challenge below. But when addressing the applicant’s challenge based on mistake of fact the fundamental difficulty referred to above arises. A difference of opinion is not a mistake of fact.
16 In Queenstown Lakes District Licencing Inspector v Turnbull Group Ltd, above n 13, Whata J referred to this as showing that the “error is one of verifiable or established fact” at [35(b)].
17 See Four Aviation Security Service Employees v Minister of COVID-19 Response, above n 8; Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291, (2022) 19 NZELR 125; NZDSOS Inc v Minister for COVID-19 Response [2022] NZHC 716, (2022) NZELR 833.
18 New Health New Zealand Inc v South Taranaki District Council, above n 1.
19 NZDSOS Inc v Minister for COVID-19 Response, above n 17, at [86]–[91]; New Health New Zealand Inc v South Taranaki District Council, above n 1, at [121]–[122].
Randomised Control Trials
[37] I illustrate the point by addressing one of the key contests referred to in the evidence and submissions.
[38] One of the difficulties in addressing whether face coverings are an effective measure are that it is usually necessary to undertake randomised control trials (RCTs) to establish whether a particular intervention can be proved to be effective. These are trials in which the particular measure — here face coverings — is used in a controlled trial environment to ascertain whether the measure is effective. This involves participants in the trial being exposed to COVID-19 where some had the protection of face masks and others did not. The results of the testing can then ascertain whether face masks are effective. RCTs are a superior form of evidence for ascertaining the effectiveness of particular measures. That was the thrust of the evidence of Mr Gabriel filed by the applicant, and I do not understand that to be disputed, although the respondents’ experts point out that it is not the only evidence.
[39] There is a practical difficulty in undertaking RCTs in this context, however. There has not been time to undertake substantial testing of this kind before measures have to be taken. There are also ethical considerations involved in exposing participants in the testing to what can be a deadly illness.
[40] There is some evidence of this quality however. Not all of it involves RCTs with COVID-19, but have involved other respiratory viral diseases. There is a particular report called the Cochrane Review that addresses this evidence.20 Cochrane is a not for profit organisation in the health area based in the United Kingdom. The conclusions of the Cochrane Review are based only on RCTs. The overall conclusion of this Review included the following:21
There is uncertainty about the effects of face masks. The low to moderate certainty of evidence means our confidence in the effect estimate is limited, and that the true effect may be different from the observed estimate of the effect. The pooled results of RCTs did not show a clear reduction in respiratory viral infection with the use of medical/surgical masks. There were no clear
20 Tom Jefferson, Liz Dooley, Eliana Ferroni et al Physical interventions to interrupt or reduce the spread of respiratory viruses (Cochrane Database of Systematic Reviews 2023, Issue 1).
21 As at 30 January 2023.
differences between the use of medical/surgical masks compared with N95/P2 respirators in healthcare workers when used in routine care to reduce respiratory viral infection. Hand hygiene is likely to modestly reduce the burden of respiratory illness, and although this effect was also present when ILI and laboratory‐confirmed influenza were analysed separately, it was not found to be a significant difference for the latter two outcomes. Harms associated with physical interventions were under‐investigated.
There is a need for large, well‐designed RCTs addressing the effectiveness of many of these interventions in multiple settings and populations, as well as the impact of adherence on effectiveness, especially in those most at risk of ARIs.
[41] There are various authors of this particular Cochrane Review. The lead author, Dr Jefferson provided evidence in reply. He described the conclusions of the Review a little differently in the following way:
… 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 of 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 all give much the same result - that is the nature of the agent does not affect the outcome.
[42] RCTs are not the only form of evidence, however. There are other forms of study, such as observational studies that have addressed the efficacy of face masks. The respondents filed evidence from Associate Professor Kvalsvig and Professor Baker of the University of Otago. They provided a report on the available evidence more broadly, dated 20 January 2023.22 That report concludes that face masks are effective in reducing transmission of COVID-19. It says:23
· 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.
22 Amanda Kvalsvig, Marnie Prickett, Dr Lucy Telfar Barnard, and Michael Baker The role of masks and mask mandates in protecting public health during a pandemic: A summary of the scientific evidence (Health, Environment & Infection Research Unit, Department of Public Health, University of Otago, 2023).
23 At 8.
· 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.
· We do not observe the same coherence in the pleadings and associated evidence provided by the applicant.
[43] Professor Baker’s evidence is of interest because he has changed his view over the course of the pandemic. He said:
Early in 2020 (and as set out in the statement of claim) I publicly commented in respect of face masks that “they're not very effective. After all the virus can also infect you via your eyes. It basically likes to land on mucous membranes and then from your eyes go down into your nose anyway. So I think people should not bother with face masks.” This is no longer my view. Over the course of the pandemic the scientific knowledge around both transmission and the use of face coverings as a public health strategy and control measure has evolved and the effectiveness of face masks as a prevention measure is now widely accepted by the scientific community. My view of the public health benefit of face masks has also changed and aligns with that evidence which is set out in the report …
[44] A further report dated 20 April 2023 was also provided by Associate Professor Kvalsvig and Professor Baker focused on the Cochrane Review.24 This was provided in response to the applicant’s focus on this Review in its amended statement of claim. It was critical of some aspects of the Cochrane Review and the way its results have been presented. It was this evidence that led to Dr Jefferson’s evidence in reply.
[45] Were this an ordinary civil proceeding such a contest of expert evidence would be addressed by a requirement for expert conferral, joint reports, and cross- examination. But this is not an ordinary civil proceeding, it is an application for judicial review. The best the applicant can do is establish that there are experts who hold contrary opinions to the experts that have been relied upon by the decision- makers. That does not establish mistake of fact as a ground of judicial review.
24 Amanda Kvalsvig and Michael Baker Commentary and critique of the 2023 Cochrane Review ‘Physical Interventions to interrupt or reduce the spread of respiratory viruses’ by Jefferson et al (Health, Environment & Infection Research Unit, Department of Public Health, University of Otago, 2023).
The 2021 Order
[46] It is appropriate to address the alleged error of fact more generally in light of the particular decisions that are challenged. Both Ministers have given evidence describing the approach that they adopted and a number of advice papers were formulated in the decision-making processes. Both Director-Generals of Health have also provided evidence and described the material taken into account and the advice provided to the Ministers.
[47] Dr Bloomfield explains the background to the development of the views on the use of face masks during the pandemic in light of the evolving evidence that COVID- 19 was transmitted by aerosol transmission. At the outset of the pandemic response face mask requirements were not part of the measures imposed. For example, the Ministry conducted a review in 2020 and found there were no clinical trials on the efficacy of face masks as a protective measure. It noted the World Health Organisation (the WHO) had found there was insufficient evidence to make a recommendation for or against their use.
[48] Evidence continued to become available over the course of the pandemic, however. In June 2020 the WHO changed its advice.25 It now included the following:
However, taking into account the available 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 …
[49] Amongst the scientific literature relied upon by the WHO in providing this advice was the Cochrane Review. This information was then part of the evidence that was relied upon when the first face mask requirement was imposed on public transport and planes under alert level 2 was decided upon in August 2020. The advice regularly
25 World Health Organization Advice on the use of masks in the context of COVID-19 (Interim guidance, 5 June 2020).
provided by the WHO from that time by way of updates remained consistent with the above advice.
[50] The first challenged decision was made in November 2021. As at the beginning of August 2021 there were no cases of COVID-19 within New Zealand, and the vaccination rates were high. But New Zealand suffered its first Delta outbreak later in August. Lockdowns were originally imposed in response, but following decisions made by the Cabinet at the end of September the Government decided to move to what was called the traffic light framework. Advice from a number of sources was received in deciding upon the measures that would be imposed under this framework. Minister Hipkins describes the process under which the traffic light system, which included the requirement for face masks, was agreed upon by Cabinet. The decisions were not focused on face masks as the new framework involved a range of measures to be applied across New Zealand at the various traffic light settings — red, orange or green. It was agreed that face covering requirements would alter depending on the settings applicable in each geographic area. At green face coverings were mandatory only on flights, and at orange and red they are mandatory on flights, public transport, taxis, retail and public venues. There had been ongoing advice throughout the Government’s COVID-19 response, and the face covering elements were carried over from the previous decisions which required masks to be worn. This included advice from Dr Bloomfield on 13 September 2021 concerning face covering requirements under the previous framework.
[51] I accept that the Minister considered that the face mask requirements were appropriate as part of the measures covered by the 2021 Order when he made his decision on 30 November to introduce the Order, and that he considered that they contributed to inhibiting the transmission of COVID-19. He had received detailed advice from the Director-General over a considerable period, including the advice under the previous framework that it was appropriate to require face mask coverings on public transport and domestic flights. Given that advice, and the expert views provided, there is no basis for a challenge based on mistake of fact. I also accept the respondents’ submission that the views of the WHO beginning from June 2020 are a complete answer to this ground of review.
[52] I also note that the advice provided to the Minister was balanced. For example the September 2020 report from Dr Bloomfield had advised that there was “some evidence” that the use of masks as part of a comprehensive package of measures could limit the spread of COVID-19, but the use of masks alone was insufficient. It also identified disadvantages of requiring the wearing of masks. The Minister then described his own evaluation of the position in his evidence. So the uncertainties that the applicant relies upon in its evidence were recognised in the decision-making process. This confirms there can be no real basis for a challenge based on mistake of fact.
[53] I note that there was no formal decision paper leading to the decision made by the Minister to impose the 2021 Order. There is a paper to Cabinet from the Minister in support of the decision to introduce the traffic light framework, but no formal decision paper for the making of the order itself. The Minister describes the process of establishing the content of the 2021 Order as an “iterative” one involving officials and advisers. It is a very detailed order running to 58 pages addressing many requirements within geographic boundaries. Neither was there any formal advice from the Director-General with respect to the 2021 Order provided in evidence, and Dr Bloomfield does not suggest there was any such formal advice in his affidavit. The Minister says, however, that “the order was accompanied by formal Director-General advice”. The position is accordingly not entirely clear from the evidence. But s 9(2) provides that nothing in s 9 requires the Minister to receive specific advice from the Director-General about the content of a proposed order, so nothing turns on this.
The 2022 Order
[54] The second challenged decision was made by Minister Verrall. She took over from Minister Hipkins as the Minister for COVID-19 Response on 14 June 2022. In addition Dr Diana Sarfati took over from Dr Bloomfield as the Director-General of Health from 29 July 2022.
[55] Following a meeting with officials on 8 August Minister Verrall requested a briefing from the Ministry on the value of ongoing mask requirements. Later in August she received that briefing and further advice from Dr Sarfati to the effect that
mask requirements for public transport and in healthcare settings should be retained, but to remove it in other settings. This briefing advised that “the evidence that mask wearing decreases the rate of transmission of COVID-19 (and other airborne respiratory viruses) is substantial”. Minister Verrall explains in her affidavit, however that she decided against maintaining requirements for public transport, but agreed that they should be retained in healthcare settings. This led to the promulgation of the 2022 Order.
[56] In her evidence the Minister describes the decision as an appropriate step-down option which was commensurate with the risk profile in her evidence. She indicates that the recommendation for healthcare settings was accepted due to the unique nature of those settings. She explains that vulnerable people at greater risk of severe consequences of COVID-19 meant there was value in minimising the infection risk as far as possible, and to give those people greater security in accessing healthcare. Dr Sarfati says in her evidence that although the Minister departed from the full recommendation in making the challenged decision, that the Minister’s views were consistent with the other advice that the effectiveness of mask mandates waned over time.
[57] Once again there is no basis for judicial review based on mistake of fact. The advice provided to the Minister was consistent with the requirements of the Act, and took into account the evidence that had developed over time about the effectiveness of masks and mask requirements.
[58] It is also to be noted that the Minister was discerning in forming her views. She did not accept the advice to continue with a mask requirement on public transport, for example. Later, in the context of reviews, she did not accept the recommendation in March 2023 that the mask requirement in the healthcare sector be removed. This further reflects an understanding in the decision-making process that the questions required balancing, and an overall evaluation in the circumstances.
Alternative formulation of the argument
[59] During oral submissions an alternative formulation of the applicant’s case was advanced by Mr Reid. Indeed he commenced the case with this reformulation and was followed by Mr Hansen who largely advanced the case as pleaded.
[60] Mr Reid argued that the focus of the challenge was not mistake of fact, but related more on the adequacy of the advice that had been given to the Ministers. He relied on the principles explained by the Court of Appeal in Air Nelson Ltd v Minister of Transport where the Court held that there are circumstances that require Ministers making decisions to 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.26 He argued that this had not occurred.
[61] I accept that Air Nelson is a well-recognised situation where judicial review has been granted. That is primarily because there will be circumstances where considerations must be taken into account by the decision-maker. In Air Nelson the Court of Appeal referred to CREEDNZ Inc v Governor-General which is the leading authority on mandatory relevant considerations, although the Carltona principle was also alive in that case.27
[62] There are difficulties with this reformulation of the applicant’s case, however. First it is not what the applicant pleaded, or advanced in its written submissions. In particular the considerations that were allegedly not taken into account were not identified so that the respondents had an opportunity to respond to this contention. The respondents did not object to this line of argument when it was advanced — again, as I understand it, the respondents did not want to be seen to be taking procedural objections but rather wished to respond to the challenge on its merits. But it is difficult for the Court, and potentially procedurally unfair, to address an argument that was a failure to take into account mandatory relevant considerations in the advice to Ministers when that has not been squarely pleaded or otherwise identified.
26 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [41]–[56].
27 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA); Carltona Ltd v Commissioners ofWorks [1943] 2 All ER 560 (CA).
[63] The second, and related, concern is that the considerations not taken into account by the Ministers were not clearly identified. Mr Reid argued that the applicant’s case was not so much based on a mistake of fact concerning the efficacy of face masks, but rather a failure to put to the Minister particular evidence relevant to efficacy. In oral submissions these appear to have been the following matters:
(a)The Cochrane Review, and the conclusions that it had reached.
(b)The advice that face masks have potential adverse effects, including as summarised by the WHO in its reports.
[64] I do not accept that it can be established on the evidence that these matters were not taken into account. I accept that the Cochrane Review itself was not placed before either Minister. But the fact that there was uncertainty about the efficacy of face masks given the available scientific evidence was clearly part of the advice. This, in substance, would be the relevant consideration, rather than particular pieces of evidence relating to it. As indicated above the Cochrane Review was one of the papers that was referred to in the WHO advice which was relied on in the decision-making process. For example, in the summary of the evidence provided by Dr Bloomfield to the Minister in September 2020, when the face mask requirements were being first concentrated on, the WHO advice was specifically referred to. The advice papers did not refer to all the underlying scientific papers that had been used as part of the formulation of the advice to the Ministers. That would be an entirely unrealistic expectation. In terms of the summary principles from Air Nelson all that could be required was a fair, accurate and adequate report. This does not require all evidential material to be identified and supplied.
[65] Equally, in relation to the disadvantages of masks, and accordingly mask requirements, that was also part of the advice. The WHO advice had listed increased risk of self-contamination, headaches and breathing difficulties, skin difficulties, communication difficulties, discomfort, a false sense of security, poor compliance, waste management issues, and difficulties with wearing face masks (particularly for children) as amongst the disadvantages. Those are the kind of disadvantages that Dr Bloomfield had summarised to the Minister in his paper of 10 September 2020.
[66] It is also apparent that Minister Hipkins was aware of these issues. He refers to the WHO advice of June 2020 in his evidence. He also specifically refers to the fact that it was unlikely that evidence on the efficacy face coverings would reach the gold standard of RCTs. The applicant argues that the Minister’s views in this respect were wrong because there was such evidence in the form of the Cochrane Review. But given the conclusion of the Cochrane Review was that the limited RCT evidence was inconclusive and that there was a need to get more comprehensive evidence I consider this criticism to be misguided.
[67] By the time of the decisions made by Minister Verrall the information referred to in the advice papers was less extensive. That is not to say it was not sufficiently comprehensive, however particularly given the ongoing analysis and advice that had been provided from 2020. The Minister herself had not had the extensive history of briefings over the period of the pandemic. But at that stage the decision-making process involved the relaxing of the requirements. I also consider it unrealistic to suggest that Minister Verrall, who herself is a practicing infectious diseases physician prior to becoming a Member of Parliament in 2020, was unaware that the evidence about the efficacy of face masks had uncertainties, or that there were disadvantages in requiring them. This had been a matter of reasonably prominent public debate particularly amongst the medical experts. She would have been aware of sources such as the WHO advice, for example. In any event it would be unjustified to reach a conclusion that she had not taken into account particular considerations without that allegation being formally raised so that the respondents had an opportunity to respond to it.
[68] Overall there is no basis to say that there was a failure to take into account mandatory relevant considerations, or a failure to provide adequate advice to the Ministers in the decision-making process.
[69]For these reasons these grounds of review are dismissed.
Section 14 NZBORA — Freedom of expression
[70] I deal next with the applicant’s challenge based on the right to freedom of expression.
[71] As the Supreme Court has most recently explained in Moncrief-Spittle v Regional Facilities Auckland Ltd discretionary decision making is constrained in two separate ways when a NZBORA right is being limited:28
(a)subjectively: the decision-maker must be satisfied that a limitation of the right is justified; and
(b)objectively: the Court must assess whether there has been an unjustified limitation of the right.
[72] In this case the requirement that the decision-maker turn their mind to the limitation of such a right is also expressly set out as a requirement of the Act. Section 9 materially provides:
9 Requirements for making COVID-19 orders under section 11
(1)The Minister may make a COVID-19 order under section 11 in accordance with the following provisions:
…
(ba)the Minister must be satisfied that the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990;
…
[73] It was not clear from the applicant’s submissions which of the two related elements the challenge focused on, but it appeared to be primarily based on the ground described in [71](b) above. Reliance was placed on art 19 of the International Covenant on Civil and Political Rights and other international instruments, as well as cases where non-verbal activities have been held to engage the right of freedom of expression including the burning of flags,29 wearing gang insignia,30 and running in a wooded area wearing only running shoes.31 The decision of the Court of Appeal addressing whether the wearing of a hair piece was encompassed within the freedom
28 Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, [2022] 1 NZLR 459, at [81]–[86].
29 Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.
30 Schubert v Whanganui District Council [2011] NZAR 233.
31 Pointon v Police [2012] NZHC 3208.
of expression was also the focus of argument.32 The respondents duly engaged with the applicant’s arguments about whether non-verbal activities fell within the right, relying on overseas case law addressing when it did so.33
[74] I do not consider that the application of s 14 in the case turns on debates about these outer margins of freedom of expression. In my view s 14 is clearly engaged in a more direct way by a face mask requirement. That is because:
(a)Requiring a person to wear a face mask interferes with their ability to verbally communicate. It inhibits the physical mechanics of speaking. As the WHO said in its advice on the negative aspects of face masks, one disadvantage was “difficulty with communicating clearly”. Rights are limited when they are made more difficult to exercise in a material way.
(b)Verbal communication can also be assisted by the physical presentation of the face, and particularly the mouth. That is plainly so for those who rely on lip reading, but it is also manifested through facial expression and other non-verbal indications of meaning.
(c)The presentation of the face can also portray meaning in the absence of verbal communication. That could be so in relation to a tā moko or other facial tattoo, but also the wearing of make-up or jewellery etc.
[75] The third of these features raises the arguments about non-verbal modes of expression that was the subject of argument by the parties. But given that a face mask requirement clearly limits the first two aspects of verbal communication it seems to me that the right in s 14 was plainly limited by the challenged measures.
[76] Both Ministers proceeded on the basis that the face mask requirement limited the freedom of expression. Minister Hipkins said in his affidavit he considered the requirement for face coverings was a justified limit on the individual’s right of freedom
32 Attorney-General v Smith [2018] NZCA 24, [2018] 2 NZLR 899.
33 Attorney-General (Quebec) v Irwin Toy Ltd [1989] 1 SCRA 927; Karr v Schmidt 460 F 2d 609 (5th Cir 1972).
of expression. In his second affidavit he explains that he did not receive specific advice about the NZBORA when he made the decision to implement the challenged order, but that he was familiar with the NZBORA considerations relating to face covering requirements from earlier decisions. He explained that he considered the limitation on freedom of expression minor and in any event justified. He said that it “… was one of the least rights-intrusive measures and it was the measure that I was least concerned about from a Bill of Rights perspective.”
[77] The applicant argued that this view was “extraordinary” given the broad nature of the right. The applicant argued that an unduly narrow view of the right had been taken. I do not accept this. There is nothing in the Minister’s affidavit that suggested the right of freedom of expression was being given a narrow interpretation. It was accepted that the right was being limited. The view taken, however, was that the limitation of the right was justified. This involves a different question.
[78] Similarly Minister Verrall was advised that the face mask requirement limited the right of freedom of expression, albeit at a low level. She said in her affidavit she considered this was a minimum intrusion that was easily justified given the ability of masks to reduce transmission of COVID-19.
[79] I note that there is some reference in the advice papers at the time of the decision by Minister Verrall that a requirement to wear a face mask did not, in principle, engage the right of freedom of expression other than in exceptional cases. I suspect that this was based on the more esoteric debates about non-verbal modes of expression. To the extent that was the advice given to Minister Verrall it was not correct for the reasons I have identified at [74] above. But based on the evidence of the two Ministers I do not apprehend that this view was held by them when they made their decisions. Rather they proceeded on the basis there was a limitation of the right, but that the limitation was justified.
[80] As indicated the Court itself must assess whether the limitation of the right is demonstrably justified under s 5 of NZBORA. Whether a limitation on a right is
justified can be addressed by the structured steps outlined by the Supreme Court in
Hansen v R,34 or by a less structured approach along the same lines.35
[81] The arguments advanced by the applicant on this issue returned to its criticism of the view that face masks were effective at permitting the spread of COVID-19, and repeated the argument that the Minister was labouring under a mistake of fact. For the reasons outlined above I do not accept these arguments. In any event I accept that the limitation of the right of freedom of expression was demonstrably justified. That is so for the following reasons:
(a)Whilst there is legitimate debate about the effectiveness of face masks in restricting the spread of COVID-19, there is a substantial body of expert opinion that they are so effective. This included the advice from the WHO, and New Zealand experts such as Professor Baker and Associate Professor Kvalsvig.
(b)The restriction on the right of freedom of expression is a confined one. It only applies to the effects described in [74] above which is only a restriction of the right of expression to a limited extent. It did not prevent expression. It only applied to certain environments, and only for certain periods of time. It was also proportionate to the need for which it was imposed.
(c)As a number of COVID-19 decisions have now concluded, a precautionary approach is permitted when making decisions addressing a need to minimise the spread of a potentially deadly illness.36 Where evidence is uncertain such an approach can legitimately be applied. It was so appropriate here. Better safe than sorry.
34 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [104].
35 Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 28, at [85]–[92].
36 Orewa Community Church v Minister for COVID-19 Response [2022] NZHC 2026, [2022] 3 NZLR 475; Four Aviation Service Employees v Minister of COVID-19 Response, above n 8, at [111]–[112]; GF v Minister of COVID-19 Response, above n 7, at [84]–[86].
[82] As explained above, when discretionary decisions restrict a fundamental right in the NZBORA the decision-maker must address that restriction and consider whether it is demonstrably justified, and the Court must also be satisfied that any restriction is so justified. It is clear that both Ministers accepted that the mask mandate limited the freedom of expression, but concluded that this limitation was justified. The first requirement was accordingly met. As to the second requirement I essentially agree with the Ministers that the restriction was demonstrably justified for the reasons just addressed.
[83]For these reasons this ground of review is dismissed.
Section 11 NZBORA — Right to refuse to undergo medical treatment
[84] The applicant next argued that the challenged decisions limited the right to refuse to undergo a medical treatment guaranteed by s 11 of the NZBORA.
[85] The respondents’ position was that this right was not engaged by the challenged decisions. Mr Hipkins explained in his affidavit that he had not been advised that s 11 was relevant. Minister Verrall does not address this right in her evidence. The advice papers to both Ministers did not suggest that this right was engaged. The applicant argued, however, that the right was engaged. If the applicant is right, then the decisions may have been unlawful given the requirement of s 9(1)(ba) of the Act.
[86] Because the right to refuse a medical treatment is not referred to in other international instruments it has been necessary for New Zealand to develop its own approach to this right. That approach is explained by the Supreme Court in New Health New Zealand Inc v South Taranaki District Council.37 A majority of the Court held that the fluoridation of drinking water supplies did engage the right. The Court did not apply definitions provided in medical dictionaries.38 It also rejected the argument that there needed to be a relationship between a medical practitioner and an individual where consent could be given and withdrawn before a measure could be regarded as a medical treatment.39 Neither did the Court see an important difference
37 New Health New Zealand Inc v South Taranaki District Council, above n 1.
38 At [73]–[74].
39 At [88]–[90].
between the word “undergo” in s 11 and the use of the word “subjected to” in ss 9 and 10 of the NZBORA.40 O’Regan J concluded:41
We conclude that s 11 of the Bill of Rights Act applies to any compulsory medical treatment, whether provided in the course of a practitioner/patient relationship or as a public health measure. We consider that this represents a generous interpretation of s 11 but does not “overshoot” the purpose of the s 11 right.
Reading down s 11 to exclude public health measures would leave open the possibility that compulsory mass medication as a public health measure would not be within the scope of s 11. There is nothing in the wording of s 11 or evident from the statutory purpose to justify such a reading down of the provision. We accept that this interpretation of s 11 may bring within its net some public health measures that are obviously necessary and justified, but such justification is better dealt with under s 5 than in the exercise of interpreting s 11.
Applying this approach, we find that fluoridation of drinking water is the provision of medical treatment. It involves the provision of a pharmacologically active substance for the purpose of treating those who ingest it for dental decay. We agree with the Courts below that people who live or work in areas where fluoridation occurs have no practical option but to ingest the fluoride added to the water. So the treatment is compulsory. While drinking water from a tap is not an activity that would normally be classified as undergoing medical treatment, we do not consider that ingesting fluoride added to water can be said to be qualitatively different from ingesting a fluoride tablet provided by a health practitioner.
[87]Elias CJ said:42
Section 11 applies in its terms to all medical treatment. It seems to me irrelevant that the medium through which fluoride is delivered is water supply and that it is therefore administered “indirectly”. Medical treatment which is delivered in water supply is treatment even if it is administered indirectly, in the sense that the supply of water itself is for other purposes. The fluoride supplied through the water is the relevant treatment. The water is simply the medium used to treat the population with fluoride. The issue in the case does not concern water, but fluoride administered through water without the consent of those to whom drinking water is reticulated.
Although fluorides may be medicines (prescription, restricted, pharmacy-only or general sale) depending on their concentration and intended use, fluoridating agents and fluoridated drinking water are specifically declared not to be medicines by reg 58B of the Medicines Regulations 1984. “Medical treatment” does not, however, need to involve the supply of a medicine, as the White Paper’s reference to psychological treatment makes clear. The definition of “medicine” used in the Medicines Act is for a distinct regulatory purpose which does not bear on the values protected by s 11. I consider
40 At [96].
41 At [97]–[99] for himself and Ellen France J, Glazebrook J agreeing at [172].
42 At [232]–[234]. Glazebrook J agreeing at [172].
whether or not the fluoride supplied in water would be classified as a “medicine” for the purposes of the Medicines Act does not determine the interpretation of s 11 of the New Zealand Bill of Rights Act.
The scope of s 11 is not properly cut down because fluoride occurs naturally in water and, in other countries, at levels which the addition of fluoride as recommended by the Ministry of Health may replicate. In the case of naturally occurring fluoride, there may be no “treatment” imposed by a public authority. But if, as the evidence suggests, treating a population with fluoride is a “public health measure that works in a prophylactic or preventive way”, that seems to me to be “treatment” which requires consent under s 11. The same conclusion might well apply to imposed addition of folic acid or iodine if there is no practical way for consumers to avoid consuming food to which these elements have been added.
[88] The applicant argued that the requirement to wear a face mask involved a medical treatment. As with the fluoridation case it relied on a definition provided in Mosby’s Dictionary of Medicine which referred to treatment as any method of preventing a disease.43 It said that face coverings fell within the definition of “medical device” in s 3A of the Medicines Act 1981. It referred to provisions in the Code of Health and Disability Services Consumers’ Rights.44 It also referred to authorities that held a medical treatment could include a medical examination,45 confinement in an abortion clinic,46 an assessment of children taken to a doctor for the purpose of investigation into their safety,47 and a psychological assessment of a prisoner.48 It relied on the view that the right was part of a group of rights whose purpose was to protect both bodily integrity and human dignity.49 The applicant argued that all of these sources exemplified that the right was engaged when something was being applied to, or with one’s body for a medical purpose.
[89] I consider that the definition of the right in s 11 must be considered purposively, and that the application of s 11 ultimately involves questions of degree. That is how I understand the Supreme Court’s approach in New Health. In assessing
43 Peter Harris, Sue Nagy and Nicholas Vardaxis Mosby’s Dictionary of Medicine, Nursing and Health Professions – Australian and New Zealand edition (2nd ed, Elsevier, Chatswood (NSW), 2009).
44 Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996.
45 M v Attorney-General [2006] NZFLR 181 at [107].
46 Re Abortion Supervisory Committee [2003] 3 NZLR 87.
47 M v Attorney-General, above n 45.
48 Smith v Attorney-General HC Wellington CIV-2005-485-1785, 9 July 2008.
49 Relying on Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary
(2nd ed, Lexis Nexis, Wellington, 2015) at [11.6.2]–[11.6.4].
the applicant’s argument, and the various sources it relied upon, it seems to me that there are three factors that can be advanced in support of the idea that a face mask requirement involves a compulsory medical treatment:
(a)It is a public health measure imposed to inhibit the transmission of a known disease.
(b)It involves those subject to the requirement to apply something to a part of their body.
(c)The item so applied is commonly a standard piece of medical equipment — a surgical mask — although other forms of mask can be used.
[90] Notwithstanding these factors I do not accept that requiring face masks to be worn involves a compulsory medical treatment within the meaning of s 11.
[91] I accept it is a public health measure. But not all public health measures involve medical treatments. I see the requirement to wear a face mask as similar in character to a requirement to wash hands, or maintain physical distancing. It is a preventative measure rather than a treatment. Whilst I accept that some preventative measures can become medical treatments — illustrated by the conclusion in relation to the fluoridation of water supplies — this is because of particular features. Fluoridation crossed the line into a medical treatment because it effectively involved the compulsory ingesting of a pharmacologically active substance to treat dental decay. Here there is no requirement to ingest or apply such a substance. It is purely a preventative step which involves no treatment.
[92] There is a further point. As the passages from Butler and Butler relied upon by the applicant say, the s 11 right is amongst a family of rights that have personal autonomy and human dignity as their underlying purpose. When identifying whether there has been compliance with fundamental rights the decision-maker must turn their mind to the question in a substantive sense. It is not necessary that they make explicit reference to the particular section of the NZBORA provided the substantive right, or
the limitation of that right, is addressed.50 Even if I had accepted the applicant’s arguments that the measure here met the definition of medical treatment it seems to me that the limitation of rights was addressed in a substantive sense. Minister Hipkins said in his second affidavit:
I also considered generally the issue of restriction on autonomy (although not explicitly a right guaranteed) on the basis the requirements limited a person’s autonomy to choose what they put on their face and when. I considered these concerns were mitigated by the flexibility of the face covering requirements at the time, and the evidence supporting the effectiveness of face coverings in reducing the spread of infectious diseases.
[93] Although there is no explicit reference of this kind in Minister Verrall’s affidavit I consider that both Ministers were conscious that they were making decisions that were rights restrictive in this more general sense. So even if the applicant’s definitional argument had succeeded it may well be that the Ministers met the requirements for addressing the restriction of rights in a substantive way. And for the reasons I have already outlined in relation to freedom of expression I consider the limitation of rights to be demonstrably justified. The same conclusion arises even if the measure had crossed the definitional boundary such that s 11 was engaged as well.
[94] In any event I do not consider that s 11 is engaged. The applicant’s challenge on this ground is dismissed.
[95] The applicant also argued that the decisions breached the right in s 8 of the NZBORA to the right not to be deprived of life. Although there are arguments concerning a wider meaning of this right I do not see any basis for contending that a face mask requirement engaged it. I consider that the challenge based on this right can be dismissed out of hand.
Irrationality
[96] Finally the applicant challenges the relevant decisions on the grounds of irrationality.
50 Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA) at 514.
[97] Irrationality and unreasonableness are closely related grounds of judicial review. Unreasonableness arises when the Court determines that the substantive decision was not reasonably open to the decision-maker. It is usually possible to identify a more particular ground of judicial review with such decisions — for example taking into account irrelevant considerations, or failing to address mandatory relevant ones. The Court will always seek to identify as precisely as possible the particular basis for finding a decision was not lawfully made. But occasionally there will be situations where a failure to exercise a decision lawfully is inferred from the decision itself. Indeed a lack of reasons and of reasoning, which might otherwise be scrutinised on the other grounds of review, may be part of the unreasonableness found by the Court. Indeed, some argue that a lack of reasons or reasoning is at the heart of this ground of review.51 The more surprising the decision is the more it needs to be explained by the decision-maker.
[98] Irrationality has a similar foundation. Irrationality arises when a decision does not make sense — where there are gaps in reasoning, or the decision appears to be illogical. Again the reasoning provided — the rationalisation — may be very important. As with unreasonableness, however, this ground of review arises when the Court infers that the decision reached cannot be considered to be in accordance with the empowering provision because of a lack of rational basis for it.
[99] The applicant’s arguments here again returned to its key theme. It argued that the measures “lacked efficacy of purpose” because there was no reliable high quality scientific evidence to justify them, that the rapid spread of COVID-19 demonstrated their ineffectiveness, and that the measures were not coordinated, orderly or proportionate.
[100] I have already addressed and rejected many of these substantive points above in relation to the challenge based on mistake of fact, the re-formulated argument based on the alleged failure to adequately take into account the underlying evidence, and the
51 See Canada (Minister of Citizenship and Immigration) v Vavilov [2019] SCC 65, [2019] 4 SCR 653 at [86]; Lord Woolf, Jeremy Jowell, Catherine Donnelly and Ivan Hare De Smith’s Judicial Review (8th ed, Sweet & Maxwell Ltd, London, 2018) at [1-037].
challenges based on the NZBORA. There are only two additional matters that I consider necessary to address.
[101] The first is the applicant’s argument that the rules and guidance relating to the mask requirements were inconsistent and contradictory and accordingly lacked rationality. It referred to public advice on the government’s website which addressed the encouragement for wearing face masks as well as the rules. I do not address whether these criticisms are made out on the facts. That is because I do not consider that such criticisms can be relevant to a challenge to the decisions to promulgate orders made under the Act. Whether there have been confusing messages is a criticism of a communication strategy. It is not a ground of review of the statutory decisions. Background of this kind might be relevant to a judicial review challenge in some circumstances, but I do not see how that can be so here. I see no substance to this ground of challenge.
[102] Finally I address the point, most squarely advanced by Mr Reid, that the extent of the exceptions provided for the mandate, particularly the more limited mandate arising from Minister Verrall’s decision, meant that there was no longer a rational basis for the order. It was argued that the exceptions were so extensive (and confusing) that they deprived the order of any potential efficacy. So, for example, when the mandate applying in a rest home did not apply to the residents or to the staff and only to visitors, and it had an exception (for example) that a face covering could be removed because of hearing difficulties, this led to a situation where the mandate could realistically not be effective. Put another way, the exceptions had overwhelmed the purpose of the measures imposed by the Orders.
[103] I accept that the effectiveness of a mask covering to prevent transmission will likely be reduced the less extensive it is, and the more exceptions that there are. But I see this argument as essentially circular. If the mandate is limited, and subject to significant exceptions, it is less rights intrusive. It is not the Court’s function to make the public policy decisions. The Court’s role is to ensure the decisions are lawful. And in this context what is important to legality is proportionality. The fact that the Ministers imposed less restrictive mandates, or made them subject to reasonably extensive exceptions, does not make them unlawful.
Conclusion
[104]For the above reasons the applicant’s challenges are dismissed.
[105] During the course of the pandemic there have been a number of challenges to COVID-19 related decisions. Many of those cases have involved important issues concerning the protection of the rights of the individual when the state has exercised coercive powers for the greater good. It is of real importance that individuals have access to the Court to ensure that their rights and liberties are adequately protected in such circumstances. During the pandemic the Court has not hesitated to set aside decisions, or to declare them to have been made unlawfully.52
[106] I do not consider this challenge to be of that kind, however. Whilst there are views held by some scientists that face coverings are not likely to be effective, that does not mean that it is unlawful to require them. The debate about efficacy might be more relevant if a mask mandate involved a significant transgression of individual rights. But it does not. It is a precautionary step that Ministers decided to take when the pandemic was at its most threatening. I do not consider this judicial review challenge to be well founded.
[107] The respondents will be entitled to costs. My preliminary view is that they should be awarded on a 2B basis. If costs cannot be agreed I will receive a memorandum from the respondent within 15 working days (no more than five pages plus a schedule) to be responded to within 10 working days thereafter (no more than five pages plus a schedule).
Cooke J
Solicitors:
Graeme Reeves, Barrister & Solicitor, Wellington for the Applicant Crown Law, Wellington for the Respondents
52 Grounded Kiwis Group Inc v Minister of Health, above n 3; Yardley v Minister for Workplace Relations and Safety, above n 17; Te Pou Matakana Ltd v Attorney-General [2021] NZHC 2942, [2022] 2 NZLR 148; Christiansen v Director-General of Health [2020] NZHC 883; Borrowdale v Director-General of Health, above n 3.
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