A v Ardern

• Jurisdiction: New Zealand
• Judge: Peters J
• Judgment Date: 23 April 2020
• Neutral Citation: [2020] NZHC 796
• Court: High Court
• Docket Number: CIV-2020-404-568
• Date: 23 April 2020

Between

A

Applicant

and

Jacinda Ardern, Ashley Bloomfield and Sarah Stuart-Black

Respondents

[2020] NZHC 796

Peters J

CIV-2020-404-568

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Civil Procedure — application for writ of habeas Corpus — in response to the COVID-19 pandemic the Director-General of Healthmade an order requiring everyone in New Zealand to remain at home except as permitted for “essential personal movement” — the order also required people to observe what was referred to as physical distancing — whether the terms of the order effected a detention — applicant serving a sentence of home detention — Section 70(1)(f) Health Act 1956 Order (isolation or quarantine requirements — Habeas Corpus Act 2001 — Epidemic Preparedness Act 2006

Appearances:

A in person

A M Powell and V McCall for Respondents

JUDGMENT OF Peters J

This judgment was delivered by Justice Peters on 23 April 2020 at 12.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Introduction

1 In response to the COVID-19 pandemic, on 3 April 2020, the Director-General of Health, Dr Ashley Bloomfield, (“Director-General”) made an order requiring everyone in New Zealand to remain at home except as permitted for “essential personal movement” (“order”). 1 The order also required people to observe what was referred to as physical distancing.

2 A, the applicant, submits the terms of order subject him and his family to “detention” within the meaning of the Habeas Corpus Act 2001 (“Act”). 2 By application of 14 April 2020, A challenges the legality of the detention he alleges and seeks a writ of habeas corpus, for himself, his partner and two other members of his family. 3 The effect of the issue of the writ would be to release A and his family from the restrictions imposed by the order. 4 I heard the application as Duty Judge on 17 April 2020, with A appearing by telephone and Crown counsel, Mr Powell and Ms McCall, present through virtual meeting facilities.

3 The respondents opposed the application. Mr Powell submitted that, to the extent A is detained at present, it is because he is serving a sentence of home detention, and not because of the order. Alternatively, if A and his family are detained by the order, such detention is lawful and, accordingly, the Court must decline A's application.

4 Mr Powell also submitted that, in reality, A is seeking to litigate the merits or otherwise of the decision to make the order. Mr Powell submitted these issues are not capable of determination on an application for a writ of habeas corpus and, if A wishes to pursue them, he will need to make an application for judicial review under the Judicial Review Procedure Act 2016.

Preliminary points

Name suppression

5 A seeks an order for permanent suppression of the publication of his name and other identifying details. A perceives that, in the past, publication of his name in connection with other legal proceedings in which he has been involved has led to death threats against him, and threats to harm him and his family. These threats are distressing to A and his family, and exacerbate serious health conditions affecting all concerned. A advised me that he has informed the police of these threats.

6 As to why publication of his name in connection with this proceeding would be likely to lead to further threats, A said this has been the general consequence of publication of his name in the past and there is no reason to believe the result will be different on this occasion.

7 Mr Powell advised the respondents will abide the decision of the Court. However, Mr Powell said that A's application might be considered “public interest” litigation, which always requires one member of the public to bring the proceeding, and this might make it appropriate to grant suppression or to anonymise this judgment.

8 I may make an order prohibiting publication of A's name and identifying details if necessary to serve the ends of justice. 5 However, the starting point is a presumption that all aspects of civil court proceedings are subject to disclosure and there must be sound reason to displace that presumption.

9 I am not persuaded a sound reason exists in this instance. The advice from A, to which I have referred in [5] above, was not on oath. I have no other evidence of the threats to which A refers or any evidence of a link between the mere fact of publication of his name, in connection with any legal proceeding, and the making of any such threat. Even if such were established, it is for the police to investigate any threat to A and his family, rather than for the Court to prohibit disclosure. I therefore decline to make the order for permanent name suppression sought.

10 A advised me he would wish to appeal any refusal of name suppression. At the end of the hearing, I made an order for interim suppression pending further order of the Court. I continue that order, again subject to further order of the Court, for 20 working days from the date of this judgment to enable A to pursue an appeal if he wishes.

Transfer to the Court of Appeal

11 A also sought an order transferring his application to the Court of Appeal, ideally to be heard by a full Court of five Judges. A submitted the significance of his application made this an appropriate course.

12 I declined A's application. Any decision to transfer a proceeding from the High Court to the Court of Appeal is one for the Court of Appeal, not the High Court. 6

Order

13 The relevant part of the order is as follows: 7

Isolation or quarantine requirements

I [the Director-General] require all persons within all districts of New Zealand to be isolated or quarantined as follows:

• a. to remain at their current place of residence ( residence), except as permitted for essential personal movement; and

• b. to maintain physical distancing, except—

  • i from fellow residents; or

  • ii to the extent necessary to access or provide an essential business; and

• c. if their residence is mobile, to keep that residence in the same general location, except to the extent they would be permitted (if it were not mobile) to leave the residence as essential personal movement.

14 “Essential personal movement” is defined in the order but in the main it comprises going to the supermarket, exercising in a manner permitted by the order, and seeking medical assistance if necessary. 8

15 “Physical distancing” means “… remaining 2 metres away from other people or, if you are closer than 2 metres, being there for less than 15 minutes”. 9

Issues

16 A's application raises two issues. The first is whether the terms of the order effect a detention within the meaning of the Act. If so, the second issue is whether the respondents can establish the legality of the detention. If not, I must order A's and his family's release. 10

Detention

17 The Act defines “detention” as: 11

detention includes every form of restraint of liberty of the person

18 The Court has previously considered this definition in the case of an applicant who is not imprisoned but contends he or she is detained in any event. In Schuchardt v Commissioner of Police, Keane J said that, although the definition appears wide, detention in the habeas corpus context is usually taken to connote “imprisonment or actual detention in some analogous form, say arising in an immigration or deportation context, or on account of a person's mental health”. 12 In that case, Mr Schuchardt had been granted bail on condition he live at his home address, refrain from communicating with certain people, from driving, and from going within a particular distance of a service station. Keane J did not consider these conditions constituted detention.

19 In another case, Wilson v Chief Executive, Department of Corrections, Mr Wilson was subject to an extended supervision order, requiring him to reside at a property in Whanganui and prohibiting him from leaving the district without the prior approval of his probation officer. 13 Collins J was satisfied the effect of these conditions meant Mr Wilson was detained for the purposes of the Act. 14 It is fair to say, however, the point does not appear to have been argued before the Judge.

20 Most recently, in Drever v Auckland South Corrections Facility, the Court of Appeal was required to consider whether special conditions of parole imposed on Mr Drever constituted detention. 15 The Court said relevant New Zealand authorities were to the effect that habeas corpus is not an appropriate remedy for a person not “held in close custody”. 16 Although he had been released on parole, Mr Drever was required to be at home between 10 pm and 6 am, seven days a week, unless his probation officer agreed otherwise. The Court did not consider this curfew sufficient to constitute detention for the purposes of the Act, particularly as the probation officer might authorise an absence. 17

Submissions

21 A submitted the terms of the order subject him and his family to detention. This is because they may not leave their house for whatever purpose they wish, such as to swim, hunt or tramp, or to travel as they see fit etc, but only for essential personal movement.

22 Mr Powell's first submission on this point was that, to the extent A is presently detained, it is because he is serving a sentence of home detention, and not because of the terms of the order. This sentence of home detention is to continue until 31 July 2020.

23 Even if A is presently detained pursuant to his sentence of home detention (and he contends he is not), it is still necessary to decide whether the effect of the order is to detain A's family. For that reason, I shall put the effect of A's existing sentence of home detention to...