Stent v Attorney-General
[2025] NZHC 3185
•23 October 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-800
[2025] NZHC 3185
BETWEEN ROBYN KATHLEEN STENT
First Plaintiff
AND
BARRY EDWARD BRILL
Second Plaintiff
AND
THE ATTORNEY-GENERAL
Defendant
Hearing: 10–11 March 2025 Counsel:
B E Brill for Plaintiffs
K Laurenson, S J Jensen and E J Cameron for Defendant
Judgment:
23 October 2025
JUDGMENT OF ISAC J
Introduction
[1] On 19 March 2020 New Zealand closed its borders as part of the public health response to the COVID-19 pandemic. New Zealand was largely shut-off from the rest of the world as it pursued an elimination strategy. Entry into New Zealand from April 2020 was significantly restricted, requiring those arriving to undertake a period of isolation. Subsequently, entry into a Managed Isolation and Quarantine Facility — or MIQ — became a general requirement for those arriving in the country.
[2] A year later, in April 2021, the Government announced the opening of quarantine free travel — or QFT — between New Zealand and Australia. This became known as the trans-Tasman bubble.
STENT v ATTORNEY-GENERAL [2025] NZHC 3185 [23 October 2025]
[3] The plaintiffs, Mr Barry Brill and Ms Robyn Stent, wished to take advantage of quarantine free travel to visit family living in Western Australia. On 17 July 2021 they boarded a flight to Perth without a return ticket.
[4] Five days later, following cross-state transmission of COVID-19 in Australia, the New Zealand government suspended quarantine free travel with Australia. Travellers from Western Australia were told they could return to New Zealand on repatriation flights for a period of seven days. However, for reasons I will come to, the plaintiffs chose not to return during this window.
[5] Subsequently they found it difficult to return. They did not wish to enter airports in New South Wales or Victoria, where there were active outbreaks of the Delta strain of the virus. Nor did they have any desire to enter MIQ on returning to New Zealand using a “red flight”. As a result they remained in Australia for eight months.
[6] The plaintiffs now claim that their right to enter New Zealand under s 18(2) of the New Zealand Bill of Rights Act 1990 was unreasonably limited by the Government’s decision to suspend quarantine-free travel with Australia. They seek public law damages. They also claim they were falsely imprisoned in Australia, and that the Minister for COVID-19 Response breached a statutory duty actionable in tort to facilitate their right of return.
[7] In this judgment I first resolve preliminary and procedural issues before turning to consider the evidence and each cause of action. I will set out the relevant background and my factual findings when dealing with the plaintiffs’ claim under the Bill of Rights.
The appropriate defendant
[8] When the plaintiffs filed the proceeding in December 2022 they named the COVID-19 Response Minister as the defendant. However, that portfolio was disestablished on 1 February 2023, when the Governor-General revoked
the appointment of Hon Dr Ayesha Verrall to the office and no new appointment to the portfolio was made.1
[9] On the second day of the hearing Crown counsel, Ms Laurenson, sought an order substituting the Attorney-General as the appropriate defendant. I granted the application — without opposition — in open court.
The pleaded claims and defences
[10] As noted, the plaintiffs advance three causes of action. Their primary focus was on a breach of s 18(2) of the New Zealand Bill of Rights Act, which provides:
18 Freedom of movement
…
(2) Every New Zealand citizen has the right to enter New Zealand.
[11] The statement of claim pleads that on 22 July 2021, the Minister for COVID-19 Response “abruptly declared an eight week ‘suspension’ of [quarantine free travel] from all Australian states, including Western Australia, with effect from 30 July 2021”. This decision is defined as the “WA Voucher Decision”. Consistent with the case before me, the plaintiffs go on to plead that this decision:
…had the intended and actual effect of preventing any person who was then in Western Australia from travelling to New Zealand, except in the unlikely event that they were able to secure both an MIQ voucher and scheduled flight tickets on coincident dates.
[12] As demand for MIQ vouchers exceeded available supply “by a very wide margin”, the plaintiffs say they had no realistic prospect of securing MIQ vouchers through the allocation system that was operating during this period and, therefore, of being able to return to New Zealand.
[13] The Government then extended the suspension of quarantine free travel on two further occasions. The plaintiffs allege that as a result of these extensions, their rights of return were “unlawfully impugned by the respondent for a continuous period
1 New Zealand Gazette, Revocation of Appointments to Ministerial Office, 2 February 2023.
of eight months from 30 July 2021 to 30 March 2022”. The plaintiffs refer to this period as the “Exclusion Period”.
[14] These restrictions were not a justified limitation on the right of return in terms of s 5 of the Bill of Rights. The plaintiffs say that is because there had been a “total derogation” of the right. A total derogation could only be proportionate “if it was appropriately limited in duration, geographical coverage and material scope and replaced with less restrictive measures at the earliest possible date”. The plaintiffs further allege the WA Voucher Decisions were not demonstrably justifiable:
34.…and constituted breaches of the Respondent’s statutory duty to the Plaintiffs, in one or more of the following respects:
i)The requirement for New Zealand citizens travelling from Western Australia to produce MIQF Vouchers as a prerequisite to entering New Zealand was unreasonable, irrational and disproportionate in all the circumstances of each and all of the dates of the four WA Voucher Decisions
ii)The MIQ Voucher system applied to the Plaintiffs was itself flawed and unfit for purpose for reasons which include the following:
a.the virtual lobby did not prioritise places in MIQ on the basis of New Zealand citizenship, nor on a New Zealand citizen’s need to enter New Zealand or the delay they were experiencing in exercising their right;
b.the online system did not have an adequate mechanism for determining whether a New Zealand citizen was experiencing unreasonable delays that were disproportionate to any public health risk they might present.
c.there was no adequate offline mechanism to address the deficiency of the online system because the criteria for emergency places were inaccessible, tightly prescribed, strictly and in some respects, incorrectly and inflexibly interpreted.
[15] Based on the same facts the plaintiffs also claim that they were falsely imprisoned in Australia until their eventual return on 30 March 2022. They also claim the Minister breached a statutory duty under s 9(1)(ba) of the COVID-19 Public Health Response Act 2020, which provides:
9 Minister may make COVID-19 orders
(1)The Minister may make a COVID-19 order 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; and
(emphasis added).
[16] Importantly, the plaintiffs have not sought declarations to vindicate their claimed breach of rights. Instead, substantial damages are sought:
As a natural consequence of being unexpectedly exiled for a lengthy period, the Plaintiffs were separated from their families and friends and deprived of the amenities and enjoyment of life; and further suffered much inconvenience, stress and anxiety that caused them fear and distress and a deterioration of the health of each of them.
[17] The damages claimed include general damages of $100,000, special damages for loss of business income suffered by a company owned by Ms Stent — The Cabbage Tree Ltd — as well as additional special damages of $130,000 for “accommodation, meals and incidentals” incurred during the eight month period the plaintiffs spent in Australia.
[18] In response the defendant pleads that the restrictions on re-entering New Zealand were reasonable limits placed on the plaintiffs’ 18(2) right, both because of the public health risk and because of the available options by which the plaintiffs could have returned to New Zealand had they wished to. While the plaintiffs argue their personal circumstances meant it would have been appropriate and safe to allow them to return without entering MIQ (pointing to the lower risk of COVID-19 in Western Australia as opposed to other states and territories, their ability to self-isolate and their general trustworthiness), the legal arrangements were naturally at a level of generality. The law applied to all New Zealanders in Australia. There was some ability for individual circumstances to be considered via the emergency allocation system, but the plaintiffs did not apply. Further, they did not make use of all of the avenues for return available to them.
[19] In response to the plaintiffs’ claims in tort the defendant advances three affirmative defences:
(a)an exclusion of liability based on public statements by the Prime Minister that those undertaking quarantine free travel did so under the guidance “flyer beware”;
(b)an assumption of risk based on the same facts, and as a result of the plaintiffs’ decision not to take a repatriation flight back to New Zealand when they were available; and
(c)contributory negligence, based on the same underlying facts.
[20] Shortly before the hearing the parties settled a comprehensive agreed statement of facts. As a result, the hearing proceeded with limited oral evidence. Ms Stent was cross-examined by the defendant’s counsel. All other evidence was received by way of affidavit and exhibits contained within a common bundle.2
The plaintiffs’ objection to evidence of Australian return flights
[21] Given the agreed facts there were very few areas of disagreement between the parties. The primary fact in contention was whether there were any flights available to Mr Brill and Ms Stent departing either from Western Australia or accessible to them from other parts of the country.
[22] At times Mr Brill in submissions, and Ms Stent in her evidence, claimed that there were no return flights at all, which is consistent with their pleaded claim of a complete derogation of their s 18(2) right. However, at other times both appeared to accept there may have been flights departing from Australia, but it had either been impracticable for them to make cross-State boarder travel to catch them, or they would have been required to enter “covid infested” areas such as Victoria or New South Wales to do so. Given their ages and health conditions they preferred not
2 Affidavits for the plaintiffs were made by Ms Stent and Mr Brill. The defendant provided affidavits from the Rt Hon Christopher Hipkins, the Minister for COVID-19 Response during the material times, and three senior officials involved in the Government’s response to COVID-19 and MIQ, Dr Harriette Carr, Mr Andrew Milne, and Mr Carl van der Meulen.
to. Even if they had been able to find a suitable flight to New Zealand, they said they could not obtain a voucher to enter MIQ, which entirely frustrated their ability to return home earlier.
[23] Despite this, Mr Brill also objected to the admission of a spreadsheet produced in evidence by one of the defendant’s witnesses, Mr Milne. The spreadsheet is said to be a record kept by MIQ officials of all flights from cities in Australia to New Zealand between October 2021 and January 2022. It discloses the number of MIQ rooms requested by travellers on those flights and the total numbers of passengers returning on them.
[24] In support of the objection Mr Brill argued the origin and authenticity of the spreadsheet was unknown, it seemed unlikely that the deponent had created the document which rendered it hearsay, and the document was not a business record because it was not identifiable on its face as an MIQ document.
[25] A hearsay statement is admissible in a proceeding if the circumstances relating to the statement provide reasonable assurance that it is reliable and either the maker is unavailable or a judge considers undue expense or delay would be caused if the maker of the statement were required to be a witness.3 Section 19 of the Evidence Act 2006 permits the admission of hearsay statements contained in a “business record”. These records include documents made in the course of a business and as a record of that business, from information supplied by a person who might reasonably be supposed to have had personal knowledge of the matters dealt with in the information.4 Under s 19(1) of the Evidence Act business records may be admitted if:
(a)the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b)the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected (having regard to the time that has elapsed since he or she supplied the
3 Evidence Act 2006, s 18(1).
4 Evidence Act, s 16(1), definition of “business record”. A “business” includes “the activities of any department of State”.
information and to all the other circumstances of the case) to recollect the matters dealt with in the information he or she supplied; or
(c)the Judge considers that undue expense or delay would be caused if that person were required to be a witness.
[26] None of the plaintiffs’ arguments in opposition to admission of the spreadsheet are persuasive. The evidence is clearly relevant to a fact in issue and Mr Brill’s criticisms of the provenance and reliability of the spreadsheet go to its weight rather than admissibility. The spreadsheet is quintessentially a business record. It comprises a record of 84 individual dates, flight numbers, airlines, departure cities, MIQ rooms requested and the number of passengers on each flight. I am satisfied the spreadsheet is therefore admissible under s 19 of the Evidence Act. No useful purpose would be served by requiring the persons who compiled the information in the record — if they could be identified — to attend as witnesses given they could not now reasonably be expected to recollect the matters recorded in the record. Accordingly, I have admitted the document into evidence.
First cause of action: breach of the right of return in s 18(2) of the Bill of Rights
Quarantine free travel with Australia
[27] From the outset of the pandemic (and until October 2021), the New Zealand Government adopted what became known as the elimination strategy, with a goal of removing COVID-19 entirely from the community. This was considered the best way in the early stages of the pandemic to minimise the social, economic, cultural and physical harm to New Zealanders until vaccines and other therapeutic interventions could reduce the harm likely to be caused by COVID-19 freely circulating in the community.
[28] Once community transmission of COVID-19 was first eliminated from New Zealand a central element of the strategy was to reduce the risk of its reintroduction by rigorous control of the border. Immigration instructions were altered to allow only New Zealand citizens, residents and other specified classes of people to enter the country. All people entering were also subject to isolation, quarantine and
other measures at the border before being permitted to enter the community. These measures were implemented through orders made under the COVID-19 Public Health Response Act 2020. The purpose of the Act was to:5
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.
[29] To achieve this purpose the Act empowered the Minister of COVID-19 Response to make various orders, including:
(a)to require persons to satisfy specified criteria before entering New Zealand, including being registered to enter an MIQ facility on arrival in New Zealand;6 and
(b)to prohibit “things” from entering ports only if specified measures were
complied with.7
[30]The pre-requisites for making an order were set out in s 9(1) of the Act:
5 This version of the section was unchanged between 6 August 2020 and 26 November 2022. Other provisions relevant to this decision, such as s 9 were amended but those changes are not material to the issues in this case.
6 COVID-19 Public Health Response Act 2020, s 11(1)(a)(x) (inserted on 6 August 2020, by s 7(3) of the COVID-19 Public Health Response Amendment Act 2020).
7 Section 11(1)(b)(ii).
9 Minister may make COVID-19 orders
(1)The Minister may make a COVID-19 order in accordance with the following provisions:
(a) the Minister must have had regard to advice from the Director- General about—
(i)the risks of the outbreak or spread of COVID-19; and
(ii)the nature and extent of measures (whether voluntary or enforceable) that are appropriate to address those risks; and
(b) the Minister may have had regard to any decision by the Government on the level of public health measures appropriate to respond to those risks and avoid, mitigate, or remedy the effects of the outbreak or spread of COVID-19 (which decision may have taken into account any social, economic, or other factors); and
(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; and
(c) the Minister—
(i)must have consulted the Prime Minister, the Minister of Justice, and the Minister of Health; and
(ii)may have consulted any other Minister that the Minister (as defined in this Act) thinks fit; and
(d) before making the order, the Minister must be satisfied that the order is appropriate to achieve the purpose of this Act.
[31] On 4 September 2020, the Minister made two orders which had the effect of placing conditions on entry into the country. The first — referred to as the Air Border Order — required a person arriving in New Zealand by air to have a confirmed allocation to enter a managed isolation and quarantine facility.8 A confirmed allocation could be obtained through an online portal or by applying to the Chief Executive of the Ministry for Business, Innovation and Employment (known as an “offline application”, and included emergency allocations). The second was the Isolation and Quarantine Order (or IQ Order).9 This required relevant persons to isolate or quarantine in a quarantine facility for a fixed period of time.
8 COVID-19 Public Health Response (Air Border) Order (No 2) 2020
9 COVID-19 Public Health Response (Isolation and Quarantine) Order 2020.
[32] Against this over-arching regulatory framework, quarantine free travel with Australia was established following extensive consideration and policy work on 18 April 2021. It was achieved through the promulgation of the COVID-19 Public Health Response (Exemption for Quarantine-free Travel) Notice issued under the Air Border Order. Clause 4 exempted a person arriving in New Zealand on an aircraft undertaking a quarantine free travel flight from the requirements of the Air Border Order.
[33] Quarantine free travel was complex and in practice fraught. It required a response framework in the event that community transmission occurred within one of the states of Australia. Each state and territory also had different public health responses to COVID-19, including in relation to internal state borders.
[34] On 26 June 2021 the Minister paused all quarantine free travel with Australia. There were significant outbreaks in Victoria, New South Wales, South Australia and Queensland. Except for Queensland, each state had imposed lockdowns. The New South Wales outbreak involved the Delta variant, which increased the risk of transmission. Between 4 July and 12 July the Minister reopened quarantine free travel with individual states as the Government became satisfied particular outbreaks were under control. This reopening applied to all states and territories other than New South Wales.
[35] Ultimately, between 18 April and the pause, quarantine free travel had only been available with all of Australia between:
(a) 18–23 April 2021;
(b)28–30 April;
(c)2–5 May; and
(d)9–24 May.
The plaintiffs’ case in more detail
[36] Against this regulatory backdrop the plaintiffs claim their right of return in s 18(2) of the Bill of Rights was infringed by Government action in three ways.
[37] The first concerns the COVID-19 Public Health Response (Exemptions and Conditions for Quarantine-free Travel) Amendment Notice (No 15) 2021 (referred to as Notice 15).
[38] Notice 15 was issued on 30 July 2021 and suspended quarantine free travel with Australia for an initial period of eight weeks. The plaintiffs describe Notice 15 as a “ban on Repatriation Flights”. They say, following the Hansen rights analysis, the ban was not a justified limitation on the plaintiffs’ 18(2) right.10 First, the defendant pleads the Minister agreed not to extend the period for New Zealanders to return quarantine free from Australia beyond 29 July 2021 because “there was no evidence there was demand [after that date] for those people to return”. This pleading is a “clear admission” that the Minister failed to address the relevant legal question, namely whether the limitation was justified on public health grounds (as he was required to do) pursuant to s 9(1)(ba) of the Act. Second, the Notice had no sufficient objective or purpose. In reality it was not driven by public health concerns. The Notice was instead “enacted for administrative convenience”. Third, Notice 15 was not rationally connected with any useful purpose. The same function could have been achieved by an executive decision and a media statement. Enacting “amending legislation” to prohibit all future repatriation flights was “a gross overkill”. Finally, there was no necessity to impair the plaintiffs’ right to return in any way. The Notice had the effect of indefinitely extinguishing the right to return for the plaintiffs and thousands of other New Zealand citizens.
[39] The second breach of the right of return is said to arise from the alleged failure of the Minister to review the ongoing need for Notice 15. Section 14(5) of the COVID-19 Public Health Response Act 2020 states that “the Minister must keep their COVID-19 orders under review.”11 From August to December 2021 there were various
10 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.
11 The plaintiffs also rely on the discussion of this requirement in Free to be Church Trust v Minister for COVID-19 Response [2024] NZCA 81 at [121]–[125].
changes in circumstances that should have caused the Minister to review Notice 15. For example, during August, New Zealand shifted border settings and experienced community outbreaks of the Delta variant. Also at this time the Minister was aware that an estimated 15,700 “ex-bubble New Zealanders” were yet to return from Australia. These changes in circumstance should have triggered a review. However, the plaintiffs claim the Minister did not review the Notice, nor did he in any subsequent month. This resulted in five separate breaches of the review obligation each month from August to December 2021.
[40] The final form of claimed breach is that after the “ban” on repatriation flights, the plaintiffs were prevented from returning to New Zealand by cl 2A of the Air Border Order. Clause 2A required the plaintiffs to produce an MIQ Voucher for the date of their arrival flight. They say it was never possible to obtain such a voucher. This was because, before 20 September 2021, no vouchers were available. Then, after 20 September, the defendant adopted the lobby allocation system, which “was … rejected by the High Court as being in breach of s 18(2) of BORA”.12 In addition, the defendant failed to arrange any “accessible” red flights between 30 July and 24 November. The plaintiff defines “accessible red flights” as “a red flight to New Zealand from an international airport in any COVID-free state”.13 Therefore, they say there was no pathway for New Zealand citizens to return, meaning that the MIQ order was ultra vires.
The right of return and the Bill of Rights
[41] The right of a citizen to enter to their country is fundamental. Without the right to enter one’s country, “the ‘right to have rights’ cannot be fully exercised”.14 It supplements the basic civil liberties of every person15 and its denial can affect other rights.16
12 The plaintiff refers to the decision of Mallon J in Grounded Kiwis Group Inc v Minister of Health
[2022] NZHC 832, [2022] 3 NZLR 19 [Grounded Kiwis substantive decision].
13 They say this is because “COVID-infested states were “routinely inaccessible” and, the plaintiffs were “unwilling” to travel into cities with a high risk of infection.
14 Divito v Canada 2013 SCC 47, [2013] 3 SCR 157 at [21], cited in Grounded Kiwis substantive decision, above n 12, at [168].
15 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, Lexis Nexis, Wellington, 2015) at 16.4.
16 At 16.1.1.
[42] The Bill of Rights applies to acts of the legislature, executive and judiciary and any person in the performance of any public function.17 Central to the present case is s 5, which provides that the rights and freedoms affirmed in the Bill “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”18
[43] Both parties accepted that whether this requirement is satisfied should be determined using the well-known criteria in Hansen v R, recently endorsed by the Supreme Court again in Attorney-General v Chisnall and Chief of Defence Force v Four Members of the Armed Services.19 Having established that the measure concerned limits a protected right, the Court carries out a structured proportionality assessment by asking:
(a)Does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom?
(b)Is the limiting measure rationally connected with its purpose?
(c)Does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose?
(d)Is the limit in due proportion to the importance of the objective?
[44] The Crown bears the onus of showing that a limiting measure meets these requirements. Under this approach, the Court also affords the legislature a reasonable margin of appreciation in the choice of measure; it suffices if the measure does not exceed reasonable limits.20 The extent of any reasonable limits is a legal standard, and the application of that standard in any given case is a question of mixed fact and law.21
17 Section 3.
18 Section 5.
19 Hansen v R, above n 10, at [64] per Blanchard J and [104] per Tipping J; Attorney-General v Chisnall [2024] NZSC 178, [2024] 1 NZLR 768, at [195]; Chief of Defence Force v Four Members of the Armed Forces [2025] NZSC 34, [2025] 1 NZLR 21 at [96].
20 Hansen, above n 10, at [64] and [79] per Blanchard J and [104], [118]–[119], [123] and [126] per Tipping J. See also Chisnall, above n 19, at [248]–[251] per Winkelmann CJ, O’Regan, Williams and Kós JJ; Chief of Defence Force, above n 19 at [99]–[100].
21 Chief of Defence Force, above n 19, at [99], citing Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, [2022] 1 NZLR 459 at [8].
However, the Court may defer to the decision-maker’s assessment, within limits. The Supreme Court recently reaffirmed that in decisions with a large policy content, the Court may provide the decision-maker with a margin of appreciation. Doing so recognises the limits on the courts’ institutional capabilities relative to those of other institutions:22
[102] Mr Butler, for the Human Rights Commission, invited us to eschew the terms “deference” and “margin of appreciation”, using instead “latitude” (or “leeway”) and “weight” (or “regard”) respectively for room afforded to decision-makers to choose among options and the amount of regard shown for their evaluations. Courts sometimes speak of leeway and weight, but we do not find it appropriate to insist that they do so. This Court has used the term “deference” in the past and sometimes speaks, as we do in this judgment, of a margin of appreciation. These terms do not signify that the Court is abandoning its duty to make its own assessment. They signify rather that the Court may accept a decision which it is reviewing for reasonableness, so long as the decision-maker has satisfied it that the decision lies within a range of reasonable alternatives.
[103] One reason for allowing a decision-maker a margin of appreciation is that courts recognise limits on their own institutional capabilities, relative to those of other institutions. As Sir Jack Beatson and others put it in Human Rights: Judicial Protection in the United Kingdom:
… it is necessary in every case for the court to be satisfied that it is appropriate for it to afford weight to the view of the primary decision maker, for instance because the court itself suffers from some constraint that does not hamper the primary decision maker.
[104] Decisions with a large policy content may fall into that category. So may judgments about the likely future effectiveness of measures taken by one of the political branches, and the potential effectiveness of alternatives. Such decisions may rest on risk assessments which must employ imperfect information. They may not be well-suited to adjudicative decision-making.
The decision in Grounded Kiwis and its connection to the plaintiffs
[45] In 2022 this Court heard a judicial review challenge by Grounded Kiwis Group Inc to the MIQ system. The proceeding focused on restrictions over the period 1 September 2021 and 17 December 2021, requiring a person entering New Zealand to have a voucher obtained through the virtual (online) lobby system for a place in a quarantine facility, or to obtain an emergency (offline) place. During this period the system operated as a lottery, there were low odds of securing a place and the results were wholly randomised. The system did not factor in the length of time a person had
22 Chief of Defence Force, above n 19, footnotes omitted.
been waiting to enter New Zealand and length of wait was not a criterion for an emergency allocation, and it did not prioritise entry for New Zealand citizens ahead of other visitors.
[46] Both plaintiffs were part of the Grounded Kiwis litigation and provided affidavits in support of the proceeding.23
[47] Mallon J ultimately accepted that the purpose of the requirement to enter MIQ was to reduce the likelihood of a community outbreak seeded from overseas to as close to zero as possible. Later, after the elimination strategy came to an end, its purpose was to limit the extent of the Delta outbreak and prevent outbreaks of the Omicron variant.24 The Judge considered these purposes were “sufficiently important to justify the curtailment of citizens’ right to return to New Zealand.”25 She went on to find that MIQ continued to be justified on public health grounds at least for arrivals who would not be self-isolating in Auckland:26
The risks of transitioning to a self-isolation model too quickly were too high in a country that was still trying to control the Delta outbreak in Auckland and keep it out of other areas of the country and to increase its vaccination coverage, including in vulnerable communities. The emergence of the Omicron variant bears that out. The issue is whether those compelling interests of society were proportionate to the interests of individual New Zealand citizens unable to return to New Zealand. In principle it may have been in many cases, but the particular circumstances of individuals matter. While a more proportionate alternative may have been to permit individuals returning to New Zealand on a case-by-case basis if they had satisfactory self-isolation arrangements in place in Auckland, the Court’s decision in Bolton provided scope for this after October 2021 anyway.
[48] However, Mallon J also held the MIQ system did not sufficiently allow for individual circumstances to be considered and prioritised where necessary. It was therefore inevitable that it would operate unjustly in individual cases where demand significantly exceeded supply. The “virtual lobby” lottery system was not a mechanism that could appropriately give effect to the rights of citizens to enter. The emergency allocation process was too narrow to ameliorate this effect. Therefore,
23 The plaintiffs’ evidence is summarised in appendix four of Grounded Kiwis substantive judgment,
above n 12.
24 At [253].
25 At [254].
26 At [361].
the combination of the lobby and the emergency allocation system operated as an unjustified limit on the right of New Zealand citizens to enter their country.
It “inevitably meant that in some instances that right could be breached.”27
[49]The Court subsequently granted declaratory relief in the following terms:28
The combination of the virtual lobby and the emergency allocation system meant that the MIQ system, because and to the extent that it did not allow New Zealand citizens facing unreasonable delays to be considered and prioritised where necessary, operated as an unjustified limit on the right of New Zealand citizens to enter their country. It inevitably meant that in some instances that right could be breached.
The evidence and my findings
[50] Following the birth of a grandchild Ms Stent flew to Perth in Western Australia on 13 March 2020. Six-days later, on 19 March 2020, the New Zealand Government closed the borders to non-residents. Ms Stent caught the last direct flight from Perth to Auckland on 22 March 2020.
[51] For the following year, New Zealand remained largely closed to the outside world. Returning citizens were initially required to self-isolate at home for a period before they were free to go. In September 2020 the Air Border Order and the IQ Order were promulgated, requiring those entering the country to secure an MIQ voucher before boarding a flight and to enter an MIQ facility on arrival for their period of isolation.
The plaintiffs’ travel to Australia in July 2021
[52] As noted, quarantine free travel with the whole of Australia began in April 2021. A graphic issued by the New Zealand Government that month warned travellers that a COVID outbreak in Australia could disrupt their plans. They were advised that they may be required to stay longer than planned in Australia, and to “be aware additional costs and getting home [will be] your responsibility”.29 In the
27 Grounded Kiwis Group Inc v Minister of Health [2022] NZHC 1407, [2022] 3 NZLR 19 [Grounded Kiwis relief decision], at [8].
28 At [8]
29 Ms Stent accepted that she and her husband had seen that document.
event the travel bubble was suspended, New Zealand travellers were warned that return flights “may be suspended for an extended period”.
[53] On 6 April 2021 the Minister and Prime Minister issued a press release concerning quarantine free travel arrangements. It also warned those travelling under the quarantine free travel arrangement that they did so “under the guidance of ‘flyer beware’”.
[54] As I have noted, the arrangement was fraught with pauses and was ultimately only in place for limited periods until it was suspended entirely on 26 June 2021 following outbreaks in a number of cities. After 26 June quarantine free travel occurred with individual states and territories only.30
[55] The plaintiffs were aware of the risks of quarantine free travel. In evidence Ms Stent accepted they had seen the official advice to prepare for possible travel disruptions and that return flights might be suspended. The plaintiffs had also experienced firsthand the changeability of the international travel. Their initial flight to Perth via Sydney in July was cancelled when quarantine free travel was suspended with New South Wales.
[56] Against that background, the plaintiffs flew to Perth on 17 July 2021 to see family and have a holiday in Western Australia. While it appears they planned to stay for a month, they had not booked a return flight.31 Their first destination was Dunsborough, where they stayed with family for five days in timeshare units, returning to Perth on 23 July 2021.
The plaintiffs’ decision not to take a green flight to New Zealand
[57] By 22 July there were significant outbreaks of the more transmissible Delta variant in New South Wales, Victoria, South Australia and Queensland.
30 Resumption occurred for New South Wales, Tasmania, Australian Capital Territories, Victoria and South Australia from 4 July 2021; Western Australia and Northern Territories from 9 July 2021; Queensland from 12 July 2021. Quarantine free travel was again paused on 16 July 2021 from Victoria and 20 July 2021 from South Australia.
31 In Court, Ms Stent said that they intended to be on holiday for three to four weeks. In the Safe Travel Declaration, Ms Stent entered 15 October 2021 as the end date.
South Australia, New South Wales and Victoria had all imposed lockdowns. The pattern suggested the virus was moving across states and territories quickly.
[58] In response to the growing risk, on 23 July — the day the plaintiffs arrived back in Perth — the New Zealand Government announced that from 31 July, quarantine free travel was suspended for “at least” eight weeks. To facilitate the return of New Zealanders in Australia, the Government arranged repatriation or “green flights” that would not require eligible travellers from Western Australia to enter the MIQ system:32
For the next seven days there will be managed return flights for New Zealanders from all states and territories that will require proof of a negative pre-departure test. Additionally, those who have been in NSW will still have to go into MIQ for 14 days. And those who have been in Victoria must self isolate upon return and have a negative Day 3 test.
The Government is working closely with airlines to ensure there are flights available over this period, and extend it for a few days if necessary.
[…]
Managed return green flights, without a requirement to enter MIQ, will be facilitated for travellers in low-medium risk states from 11.59pm on Friday 23 July to 11:59pm on Friday 30 July initially.
[59] As this advice indicated, travellers wishing to return to New Zealand on a green flight had a limited window to do so. Consistent with this advice, Radio New Zealand reported that New Zealanders wishing to return home had “until [31 July] to avoid the official start of the suspension”.33 The Prime Minister “implore[d] anyone who is currently in Australia, even if your plans are uncertain, if there’s a likelihood you need to be back in New Zealand, I would encourage you to come back”. People were advised that, “[u]ntil the bubble reopens, the only way for people to get back to New Zealand will be to book a red flight once they become available”. While the advice said green flights might be extended, this would only be for “a few days” and only “if necessary”.
32 Emphasis added.
33 Radio New Zealand, “Jacinda Ardern commits to getting NZers back from Australia within deadline”(26 July 2021), contained in common bundle.
[60] Over the next seven-days, 12,753 people returned to New Zealand on green flights. While demand in the first few days was substantial, as the week wore on there was a noticeable decline in the allocation of seats. Most flights operated at no more than 60 per cent capacity. In the last three days of the green flight period, there were 3,860 empty seats across scheduled flights. For the entire seven-day period there were 9,665 empty seats. With the drop in demand airlines expressed concern that flights after 31 July would not be commercially viable. As a result of the lack of demand, on 29 July 2021 the acting Minister for COVID-19 Response determined not to extend the period for available green flights.
[61] The plaintiffs were aware of the seven-day window and the official advice but decided not to return to New Zealand. Ms Stent said that while she did give serious thought to taking the first flight home, “we had come to Perth for a purpose that we had not completed and the reasons we had been given for just dropping everything seemed pretty thin.” The plaintiffs “assumed that [the official advice] was just a ‘hurry up’ to get people moving”. She expected she and Mr Brill would be able to get a flight back to New Zealand in August, “as long as we had not been affected by a future COVID outbreak in Western Australia”.34 She deposed:
Although [Mr Brill] was adamant that the inclusion of Western Australia in the Bubble suspension was a bureaucratic and legal error that would soon be found out, I had less confidence as, in my opinion, the State of Emergency had allowed the Government to make up its own rules as it went along. But there was certainly a fair chance that the Health Ministry would wake up to the fact that there was no risk from Western Australia
If for some reason we could not get an August flight home, we might have to wait out the eight weeks of Bubble suspension. This is what we thought of as the worst case scenario. I was not okay with that scenario but I could put up with it, if I must.
[62] Having considered the risks the plaintiffs continued with their planned holiday in Western Australia. They left on 26 July — three days into the seven-day window for green flights —and flew to Broome, over 2,000km north of Perth. Once there they rented a camper van and purchased a car for approximately $17,000. Over the next
34 In answer to a question from the bench asking her why the plaintiffs did not return in the first week, Ms Stent said that “I stupidly, stupidly thought that they would assess and see that there was no COVID, it’s as simple as that, So I regret it and I regret it and I regret it, there’s nothing I can do so. It was a bad mistake.”
six weeks they travelled slowly back to Perth, staying at cabins, road houses, hotels and motels. They were in Geraldton — 400km north of Perth — on 1 September, and had returned to Perth by 5 September 2021. The next day the plaintiffs flew to Cairns in Queensland, where they purchased another vehicle and spent the next month travelling around the state.35 Ms Stent explained they wished to move out of Western Australia:
…because the lockdowns of Victoria and New South Wales had meant that there were many under occupied resorts that were offering specials. In addition, we were now waiting for a Red Flight that would eventually get us home, and this seemed to be a better prospect on the Eastern seaboard rather than Perth.
[63] Following their travels in Queensland, the plaintiffs toured the Northern Territory between 23 October to 4 November.36 They returned to Western Australia, spending another month visiting locations in the state, before returning to Perth 21 November 2021.37 The plaintiffs remained in Perth for a period while one of them had a medical procedure. However, from December 2021 until their eventual return, they continued with their travels.38
[64] While the plaintiffs were travelling around parts of Australia with significant freedom, New Zealand was under restrictive COVID-19 settings. As a result of a substantial Delta outbreak in August 2021, a nationwide lockdown was imposed. On 31 August 2021 all of New Zealand south of Auckland moved to alert level three. Auckland, into which the plaintiffs would likely have to transit, and Northland, where they lived, remained under highly restrictive settings for the rest of 2021.39 The Delta outbreak in Auckland was never brought under control.
35 Their travels took them to Palm Cove, Port Douglas, Mission Beach, Townsville, Airlie Beach, the Whitsundays, Dolphin Heads, Yeppoon, Bargara, Noosa Heads, Roma, Charleville, Winton and Mount Isa.
36 Here they visited Daly Waters, Pine Creek, Darwin, Katherine and Timber Creek.
37 Including Kununurra, Halls Creek, Broome, Port Hedland, Newman, Meekatharra, Sunset Beach and Cervantes.
38 Travelling around Western Australia, South Australia, Victoria and New South Wales.
39 Northland and Auckland remained at alert level four until 3 September 2021, when Northland moved to alert level three. From 8 September all of New Zealand, except for Auckland moved to alert level two. However, because of Northland’s border with Auckland, the region was effectively blocked off to the rest of the country by land. From 9 October to 20 October, Northland returned to alert level three settings. From 3 December 2021, a new system was implemented called the traffic light system which utilised various protective measures including vaccine passports, capped numbers within venues, mandatory record keeping/contact tracing and face coverings. Northland and Auckland remained in “red” level for December, with Northland only moving to orange on
[65] At the same time Western Australia remained largely covid-free, and its residents enjoyed comparatively little restriction on their freedom of movement.40
The plaintiffs’ engagement with the MIQ lobby system
[66] After 30 July 2021 no further green flights took place from Australia to New Zealand. However, managed or red flights, which required travellers to enter managed isolation facilities on arrival into New Zealand, were available. In July and August a number of red flights were scheduled from New South Wales. Further red flights were subsequently arranged from Sydney to Auckland on 5 and 15 September 2021 for those with an urgent need to return to New Zealand. In addition, the spreadsheet produced in evidence by the defendant indicates flights departed from Perth for New Zealand on 11, 18 and 25 October 2021 — while the plaintiffs were in Queensland and the Northern Territory. Overall, the evidence suggests a total of 84 flights were available from various airports across Australia between 9 October 2021 and 30 January 2022. While the flights in October and early November 2021 often carried hundreds of passengers, from early December most had fewer than 50, and some less than 10. The pattern suggests diminishing demand for red flights over this period.
[67] The plaintiffs did not pursue the opportunity to take a red flight with any enthusiasm. They preferred to explore avenues which avoided the need to go through managed isolation in New Zealand or that might require them to enter an Australian city with an active COVID-19 outbreak. For example, on 17 August 2021 Ms Stent wrote to the Director-General of Health requesting permission to return home on the same plane as the All Blacks, who were flying to Perth for a test against the Wallabies. This approach was unsuccessful.
[68] On 15 September 2021 the New Zealand government decided to extend the suspension of quarantine free travel for a further eight weeks, from 24 September.
21 January. The entire country returned to the red setting three days later, where it remained until 30 March 2022.
40 On 29 June 2021, a four-day lockdown was imposed in Western Australia on detection of community transmission. On 18 August 2021 a single case was discovered, but no lockdown was imposed. Apart from these brief instances, those in Western Australia, including the plaintiffs, were largely free from restriction in 2021.
At the same time MIQ moved to a virtual lobby system, using a lottery to allocate room vouchers.
[69] Travellers from Australia were able to access the first virtual lobby in a release on 20 September 2021. This was a matter of two weeks after the plaintiffs had returned to Perth from Broom.
[70] Information about the lobby system and room releases was available on a “Unite Against Covid-19” website, which travellers were encouraged to check regularly. It is unlikely that the plaintiffs did so.41 During this time, flights were leaving from Brisbane, Melbourne, Sydney and Perth.42
[71] In evidence the plaintiffs said that flights out of Melbourne or Sydney were not accessible to them given cross-state border restrictions and were “patchy and unpredictable”. However, in cross-examination Ms Stent accepted that interstate travel was not impossible, as the plaintiffs own experience had demonstrated. In submissions Mr Brill said that even if a flight to New Zealand had been available the plaintiffs would have been very reluctant to run the risk of infection from travelling through a domestic airport in either Sydney or Melbourne. Ms Stent deposed that red flights “always seemed to fly from COVID-heavy cities like Melbourne and Sydney where we really did not want to go”. Overall, the evidence satisfies me the plaintiffs did not wish to take a red flight to New Zealand and were not prepared to enter Sydney or Melbourne for that purpose. Nor did they wish to enter an MIQ facility on their return.
[72] The plaintiffs’ reluctance to use a red flight also explains why their engagement with the lobby system was, at best, half-hearted. During this period, they were situated variously in Western Australia, Queensland, or in the Northern Territory. There were 15 lobby entry opportunities. The plaintiffs entered four.43 While Ms Stent was able to
41 Under cross examination, Ms Stent said she did not see the lobbies held on the 5 and 21 October 2021 on the COVID-19 website.
42 The agreed facts records that red flights were arranged from Sydney to Auckland on 5 and 15 September for those with an urgent need to return to New Zealand. On 17 September 2021, the Minister announced that a third red flight was planned. The spreadsheet adduced in evidence records that from 9 October 2021, flights were leaving Brisbane, Melbourne, Perth and Sydney to New Zealand.
43 20 September 2021: Ms Stent said she entered this lobby, however, there is no record of her having done so; 28 September 2021: Ms Stent entered the lobby and reserved a room. However, the booking was not confirmed as she did not find a flight that coincided with the date; 5 October
reserve a room in MIQ for 28 September 2021, the booking was not confirmed as she was unable to find a suitable flight that coincided with the date.
[73] Following the announcement on 24 November 2021 that vaccinated New Zealanders in Australia could return to New Zealand without entering MIQ from 17 January 2022, the plaintiffs booked flights to travel from Perth to Auckland on 17 January 2022. As a result, the plaintiffs said they “lost interest” in entering the MIQ lobbies. Even so, on 21 December 2021 the Minister announced the border reopening would be delayed due to the arrival of Omicron in New Zealand. This did not cause the plaintiffs to re-engage with MIQ lotteries.
New Zealand re-opens on 28 February 2022 — the plaintiffs return on 30 March
[74] From 28 February 2022, as fully vaccinated New Zealanders, the plaintiffs were free to return to New Zealand and isolate at home.44 At this point, however, the plaintiffs continued “driving slowly” to Victoria where they stayed for a week before entering New South Wales on 8 March 2022. The plaintiffs spent two weeks driving north before entering Queensland again on 20 March 2022. There, they sold their vehicle before flying from the Gold Coast to Auckland on 30 March 2022. By this time, they were no longer required to self-isolate on their return.
[75] Ms Stent said the reason for the plaintiffs’ delay in returning after the border had reopened was that that they had to relicense their vehicle before selling it and because they “didn’t want to go back to 10,000 cases every single week” in New Zealand. She accepted they could have returned at any point after the 27 February.
2021: neither plaintiff entered the lobby; 12 October 2021: Ms Stent entered and was unsuccessful; 21 October 2021: neither plaintiff entered the lobby; 2 November 2021: Ms Stent entered but was unsuccessful; 9 November 2021: neither plaintiff entered the lobby; 18 November 2021: Ms Stent entered but was unsuccessful; 25 November 2021, 30 November 2021, 7 December 2021,
16 December 2021, 6 January 2022, 17 February 2022, 24 February 2022: neither plaintiff entered the lobby.
44 The reopening of the border for travellers from New Zealand was announced on 3 February 2022.
Was there an unjustified limit on the plaintiffs’ right of return?
[76] While the plaintiffs both pleaded and argued the public health measures in place during their time in Australia amounted to a “total derogation” of their right to return, the allegation is inconsistent with the evidence and is not made out.
[77] That said, there is no argument the restrictions on the plaintiffs’ ability to return to New Zealand constituted a limitation on the right in s 18(2). The real issue in this case is whether their inability to return was the result of Government action, or a consequence of personal choices in response to that action.
[78] As noted, in Grounded Kiwis this Court rejected a challenge to the MIQ system as a whole. It found that the purpose of the requirement to enter MIQ for a prescribed period addressed a legitimate public health purpose. However, in a narrower finding the Court concluded the combination of the virtual lobby and the emergency allocation system meant that the MIQ system operated as an unjustified limit on the right of New Zealand citizens to enter their country. It inevitably meant that “in some instances that right could be breached”.45
[79] The italicised words identify an important qualification. Mallon J did not find the system operated unlawfully for all travellers. During the two-year period of border restrictions, almost 230,000 people entered New Zealand through MIQ. The real question in the present case is therefore not whether the restrictions generally were unlawful but whether the plaintiffs’ rights in particular were infringed.
[80] The evidence does not satisfy me the delay in the plaintiffs’ return to New Zealand is entirely attributable to the public health measures the plaintiffs have sought to impugn. Rather, it appears some or all the delay arose from choices they made in response to those measures, or due to their own risk preferences in relation to COVID-19. I have reached this conclusion for the following reasons.
45 Grounded Kiwis relief decision, above n 27, at [8], emphasis added.
[81] First, To the extent the plaintiffs’ claim involves a challenge to the operation of the MIQ lobby system in general, their position has already been vindicated by the declarations made in Grounded Kiwis.
[82] Second, like Mallon J the evidence satisfies me the restrictions on entry and the requirement to enter MIQ served reasonable public health outcomes. Those purposes changed over time between elimination as a preliminary strategy, limiting the extent of the Delta outbreak, delaying the arrival of Omicron and providing a window for completion of a vaccination programme.
[83] Keeping a form of restriction at the border was a legitimate purpose throughout the period of the plaintiffs’ time in Australia, and at each decision point under challenge.46 Until 18 October 2021, the Government had been pursuing an elimination strategy, which had previously been successful in protecting the New Zealand public while rolling out the COVID-19 vaccination programme. At the time the trans-Tasman bubble was first suspended COVID-19 was spreading in Australia, and New South Wales in particular, but there were also cases in Queensland, Victoria and South Australia. The state borders in Australia were porous; travellers within Australia had been crossing them to fly to New Zealand. They would also be incentivised to travel to Western Australia had green flights continued there. The government was concerned that the cumulative risk presented by COVID-19 in Australia as a whole meant that quarantine free travel could not be continued. The evidence satisfies me that was an assessment of public health risk open to the Minister in an area of policy calling for a margin of appreciation. After the Delta outbreak in New Zealand in August 2021, Australian states such as Western Australia formed their own view about the continuing viability of quarantine free travel with New Zealand. From 24 August the Government of Western Australia decided to require all visitors from New Zealand to enter a State quarantine facility.
46 These were the 23 July 2021 suspension of QFT with green flights for a week; the 15 September 2021 decision to further suspend QFT; the 15 November decision to end QFT for the Reconnecting New Zealanders strategy (which was designed to open the borders); and the 20 December decision to extend restrictions given the impact of Omicron and the rapid dismantling of the border restrictions during February 2022.
[84] Similarly, I am satisfied that officials and ministers regularly reviewed the appropriate border settings and MIQ requirements in line with the applicable statutory criteria, contrary to the plaintiffs’ contention. What is clear from the evidence is that the situation during the later part of the pandemic in both Australia and New Zealand changed constantly, and often monthly. This reflected the arrival of new and increasingly transmissible forms of the virus in the second half of 2021 and early 2022. By way of illustration, on 15 November 2021 the Government agreed to move forward with the “Reconnecting New Zealand” strategy. The elimination strategy was to be abandoned in favour of a minimisation and protection approach. Officials provided advice to Ministers on the border settings, recommending a move away from MIQ. But the arrival of Omicron as a variant of concern on 26 November altered the calculus and meant there was an ongoing need for border restrictions, delaying the proposed timeframe for opening the border.
[85] Third, as the evidence establishes the plaintiffs imposed conditions on their return to New Zealand, I am not left satisfied that their right under s 18(2) was unreasonably limited by the Government measures and decisions they challenge.
[86] Quarantine free travellers, including the plaintiffs, were aware of the potential for disruption and suspension of the travel bubble. In such cases they were warned there would be additional delay and costs before a return to New Zealand would be possible. Those taking advantage of the trans-Tasman bubble did so on a “flyer beware” basis. When the Government announced on 23 July that it was suspending QFT and urged New Zealanders to return on green flights provided over a seven-day period, the plaintiffs could have returned to New Zealand. Instead they made a decision to continue with a six-week holiday in Western Australia. In doing so they accepted at least the risk of an eight week stay in Australia with no certainty of a return date. I do not accept their evidence that they were misled about the risks they faced, or that they had any reasonable basis to expect green flights would be maintained for over a month while they continued to holiday.
[87] Subsequently, between September 2021 to February 2022, there were a total of 15 lobbies through which the plaintiffs could have secured a voucher for MIQ and their return to New Zealand. The plaintiffs entered only four, the last being on
18 November 2021. In their first lobby they secured a voucher but failed to obtain an appropriate flight. Their lack of willingness to use a red flight involving a stay in MIQ was the result of their reluctance to enter major airports in cities with active outbreaks and their view that they ought not be required to enter an MIQ facility. However, there were red flights leaving Australian states, including Western Australia, that did not have substantial COVID-19 outbreaks. In addition, had the plaintiffs taken the opportunity to enter the 11 other lobbies available to them, they may have been successful in securing an MIQ voucher. Their prospects of doing so were certainly much greater in the latter lobbies they chose not to enter.47 In addition, the plaintiffs did not seek an MIQ room through the emergency allocation process or, after the decision in Bolton on 29 October 2021, seek permission to self-isolate at home.48 Once New Zealand’s borders were opened on 28 February 2022 and the plaintiffs were free to return without any requirement to enter MIQ, they delayed returning for a month, until 30 March. Despite this, they claim an entitlement to public law damages for their costs during the entire eight-month period they were in Australia.
[88] For these reasons, while I am satisfied the measures challenged by the plaintiffs had the effect of limiting their right under s 18(2) of the Bill of Rights, I am not satisfied those measures caused them to remain in Australia for the entire period they claim. Given the evidence I am also unable to conclude that the measures under challenge amounted to an unreasonable limit on their right of return under s 5.
[89] I am also not persuaded there is a proper basis to conclude the losses the plaintiffs claim are attributable to the Government action in issue. Had I found there was a breach of rights I would not have exercised the discretion in favour of an award of damages accordingly. Vindication could be achieved through declaratory relief.
[90]I therefore dismiss the plaintiffs’ claim under the Bill of Rights.
47 Fewer users entered the later lobbies. The lobbies in September and October attracted between 20 and 30 thousand people in each lobby; the lobbies in November attracted between 5,000 and 20,000 people; the December lobbies around 7,000 and the January and February lobbies attracting far fewer, including only 952 in February.
48 Bolton v Chief Executive of Ministry of Business, Innovation and Employment [2021] 3 NZLR 425, [2021] NZHC 2897.
Second cause of action: false imprisonment
The plaintiffs’ case
[91] False imprisonment is the tort of detaining a person without lawful justification.49
[92] The plaintiffs claim that as of 30 July 2021, the defendant “outlawed” repatriation flights from Western Australia to New Zealand, thereby detaining the plaintiffs in Western Australia (along with any other Australian state or territories they could travel to) for an indefinite period. From 30 July 2021 to 16 December 2021, the plaintiffs had no “realistic” means of egress from Australia. They say that at the time of the detention, it was unlawful for any Australian resident to leave Australia for any other country except New Zealand.50
[93] The plaintiffs also claim they were unaware of any “accessible” outbound flight from a COVID-free state to any overseas destination from August to December 2021. They point to the decision in Bolton where the High Court found the plaintiff in that case was justified in avoiding COVID-19 risk at a managed isolation facility given his age.51 The plaintiffs understood there was a high risk of catching the virus in “non-green” airports and in quarantine facilities, and as a result red flights did not present a reasonable method of egress from Australia. Even after Australia lifted its travel ban to other countries in December 2021, the plaintiffs remained falsely imprisoned by the defendant in Australia as they would still need an MIQ voucher to return to New Zealand, which they could not obtain.
The applicable law
[94] False imprisonment requires a total restraint, in the sense that all movement in all directions is prevented.52 Detention may be achieved by the use of physical barriers, or by threat of force or assertion of authority that requires the plaintiff to submit to
49 Willis v Attorney-General [1989] 3 NZLR 574 (CA) at 579.
50 Subject to special exemptions.
51 Bolton v Chief Executive of Ministry of Business, Innovation and Employment above n 48, at [77].
52 Deliu v Police [2020] NZHC 2506; Blundell v Attorney General [1968] NZLR 341 (CA) at 357; and Wright v Bhosale [2015] NZHC 3367, [2016] NZAR 335 (HC) at [51].
the will of another.53 Where some means of escape is possible, the courts will consider the reasonableness of that escape.54
[95] The restraint must also be unlawful. Lawful justification may operate as a defence. Finally, the defendant must intend to restrain the plaintiff. Mereinadvertence in causing a person’s detention will not establish liability. However, false imprisonment is a tort of strict liability, so wrongly believing there is lawful authority to detain is no defence.55
Consideration
[96] Given my factual findings, the plaintiffs’ claim of false imprisonment must fail. The plaintiffs have not established they were totally restrained, whether in Western Australia or in the other substantial parts of the continent in which they freely travelled. The Supreme Court of the Australian Capital Territory has held it is impossible to say persons who are at perfect liberty to move around Australia are suffering a state of imprisonment.56 I respectfully agree.
[97] Nor have the plaintiffs established the defendant was responsible for causing them to be confined within Australia. Given I have found the plaintiffs failed to take a green flight to New Zealand in the week following 23 July 2021, did not apply for an emergency allocation in MIQ, did not enter 11 of the 15 lobbies available to them, and did not apply for permission to self-isolate on return following Bolton, it could not be said they were prevented from leaving Australia by the defendant.
[98] For these reasons I find the claim for false imprisonment has not been made out.
Stephen Todd (ed) Todd on Torts (9th ed, Thomson Reuters, Wellington, 2023) at [3.5.1]. See
R (Jalloh) v Secretary of State for the Home Department [2020] UKSC 4, [2021] AC 262 at [24].
Todd on Torts, above n 53, citing Robinson v Balmain New Ferry Co Ltd [1910] AC 295 (PC);
Taylor v Roper [2020] NZCA 268, [2021] 3 NZLR 37 at [203]
55 R v Governor of Brockhill Prison, ex parte Evans (No 2) [2001] 2 AC 19 (HL); see P Cane (2001) 117 LQR 5; see also Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 (CA); Manga v Attorney-General [2000] 2 NZLR 65 (HC).
56 Louis v Commonwealth of Australia (1987) 87 FLR 277 (ACTSC) at 28, and supported in
State of South Australia v Lampard-Trevorrow [2010] SASC 56, (2010) 106 SASR 331 at [282].
[99] The plaintiffs have also failed to establish an entitlement to anything beyond nominal damages. For each of the claims in tort the plaintiffs seek $100,000 in general damages; an unspecified amount of general damages for losses to the company — The Cabbage Tree Ltd — and special damages of $130,000 for accommodation, meals and incidentals.
[100] I agree with Mr Jensen’s submission that the claim for losses of the company are not recoverable by the plaintiffs. It is not a party to the proceeding. Business losses caused by the plaintiffs’ presence in Australia even if established would be those of the company. The plaintiffs have not provided evidence of any loss caused to the business attributable to their time in Australia. Nor does the evidence satisfy me that the plaintiffs personally have suffered loss as a result of a fall in the value of their shareholding, or due to a requirement to introduce capital to the business.
[101] Turning to the claim for consequential losses, the plaintiffs have sought substantial damages based on a per diem rate drawn from a tax determination which sets out amounts Inland Revenue considered reasonable in the 2021/22 income year for claims by employees for domestic travel expenses when travelling away from home. The plaintiffs have not provided evidence of their actual costs. I would not be prepared to award substantial damages on a hypothetical basis.
[102] As counsel for the defendant submitted, any assessment of loss would also require adjustment to reflect the living costs the plaintiffs would have incurred had they remained in New Zealand, and the question of mitigation. There is no information against which this analysis can be undertaken. The plaintiffs have also sought damages for medical costs, lost glasses and hearing aids. But these losses are not obviously attributable to the actions of the New Zealand Government.
[103] For these reasons even if the plaintiffs had made out their claim for false imprisonment they have not made out the damages they seek.
Third cause of action: breach of statutory duty
The plaintiffs’ case
[104] The plaintiffs’ final cause of action is that the Minister for COVID-19 Response had a duty under s 9(1)(ba) of the Act to satisfy himself that any COVID-19 order issued under it was a “justified limit on the rights and freedoms in the New Zealand Bill of Rights Act”. In drafting this provision, the plaintiffs claim Parliament intended to confer upon them a private law right in damages.
[105]It is convenient to restate the relevant part of the section:
9 Minister may make COVID-19 orders
(1)The Minister may make a COVID-19 order 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; and
[…]
[106] The plaintiffs submit the purpose of the section was to draw limits on the scope of broad legislative powers delegated to the Minister. The Act therefore imposed a duty to safeguard the plaintiffs’ individual rights. Further, if s 9(1)(ba) is not read in a way that creates a private law remedy it would be redundant. In the plaintiffs’ submission this Court should recognise that rights protected by the Bill of Rights are in a “special category of their own”, that call for the widest possible range of potential remedies. It should be “presumed” that Parliament intended to create recourse to civil remedies in the event of a breach of s 9(1)(ba), in the absence of a strong contrary indication.
The applicable law
[107]To establish a breach of statutory duty, the plaintiffs must establish that:57
57 Rowan v Attorney-General [1997] 2 NZLR 559 (HC) at 570.
(a)Parliament intended to confer a private law right and remedy in tort;
(b)The duty is owed by the defendant to the plaintiffs;
(c)The defendant breached that duty; and
(d)The plaintiffs suffered damage from the breach of the duty that was of a kind the duty was designed to prevent.
[108] Ascertaining whether Parliament intended to impose a private law duty enforceable in damages is a matter of statutory construction. A consideration of the whole Act and the circumstances in which it was enacted is required.58 A court will not lightly imply that there exists such a private law right.59
[109] In determining whether Parliament intended to confer a private law right, there are two “tests” commonly applied.60 The first is whether the statutory duty is for the benefit of a limited class of people, and the second is whether the statute provides no other remedy for its breach. While these tests are helpful in ascertaining Parliament’s intention, they are not determinative.61 As the Court of Appeal said in Wool Board Disestablishment Co Ltd v Saxmere Co Ltd:62
…the reviewing Judge must be driven to the view that something is necessary to achieve the purpose of the statute, and therefore objectively within the intention of the legislature, yet was not provided for.
Consideration
[110] Having considered the terms of the Act I am unable to identify any indication Parliament intended to confer on the plaintiffs a private right in damages.
[111] First, the terms of s 9 are inconsistent with the duty pleaded by the plaintiffs. The provision requires the Minister to be “satisfied” the order is a justified limit on
58 Cutler v Wandsworth Stadium Ltd [1949] AC 398 (HL) at 407.
59 Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442 at [188].
60 Todd on Torts above n 53, at 7.2.3.
61 Select 2000 Ltd v ENZA Ltd [2002] 2 NZLR 367 (CA) at [43]–[44].
62 At [188].
the rights contained in the Bill of Rights. This is a subjective requirement, imposing an obligation on the Minister to consider the rights and be satisfied the limits in s 5 are met. There is no explicit duty on the Minister to ensure the order is in fact a justified limitation. This is unsurprising because whether a measure is substantively lawful is usually an assessment for the court.
[112] Second, the purposes of the Act are directed to preventing and limiting the risk of an outbreak or spread of COVID-19 and its adverse effects.63 This purpose was achieved through the making of COVID-19 orders under s 11, including orders restricting freedom of movement and entry into the country. While the plaintiffs are correct in their submission that s 9(1) was a limit on these powers, it cannot be said this was the purpose of the Act itself. It seems unlikely Parliament intended to confer private law rights of action on individuals in relation to orders that achieve the purpose of the Act.
[113] Third, the class of person protected by the claimed duty is not limited in any way. It would extend to any person whose rights were affected by any order made under the Act. This would include not only individuals in the plaintiffs’ situation — overseas — but all New Zealanders subject to orders in the country.
[114] Fourth, the existence of a remedy outside of the Act strongly suggests Parliament is unlikely to have intended to create a new one. Individuals whose rights were unlawfully affected by orders made under the Act had recourse to relief in judicial review and for Baigent damages. The Act itself recognises the ongoing importance of public law claims in s 13, which provided:
13 Effect of COVID-19 orders
(1)A COVID-19 order may not be held invalid just because —
(a)it is, or authorises any act or omission that is, inconsistent with the Health Act 1956 or any other enactment relevant to the subject matter of the order; or
[…]
63 Four Aviation Security Service Employees v Minister of COVID-19 Response [2021] NZHC 3012, [2022] 2 NZLR 26 at [12].
(2)However, subsection (1)(a) does not limit or affect the application of the New Zealand Bill of Rights Act 1990.
(3)To avoid doubt, nothing in this Act prevents the filing, hearing, or determination of any legal proceedings in respect of the making or terms of any COVID-19 order.
[115] In turning its mind to public law remedies in this way, Parliament did not choose to provide for an additional private law remedy for breach of s 9(ba). This again points away from any duty of the kind pleaded by the plaintiffs.
[116] Finally, there is nothing in the Act to suggest the loss the plaintiffs claim to have suffered was of a kind the duty was designed to prevent.
[117] For these reasons, the claim for breach of a statutory duty must also be dismissed. The claim for damages also suffers from the same deficiencies noted above at [99]–[102].
Conclusion and result
[118] The plaintiffs have failed to establish their claims. They are dismissed accordingly. It has been unnecessary to address the defendant’s affirmative defences.
[119] Costs should follow the event. I would be minded to award costs on a 2B basis and certify for second counsel. If the parties are unable to agree they may file memoranda, but as this Court has noted a number of times before, costs consequences should be predictable and follow the allocations in the High Court Rules 2016. Recourse to the Court for a determination should not be necessary in most cases.
Isac J
Solicitors:
Crown Law, Wellington for Defendant
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