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Update: Following a successful judicial review application, Mr Bolton announced on 5 November 2021 that MBIE has now reconsidered, and granted, his application to self-isolate in his home upon his return to New Zealand (overturning its initial decision). Mr Bolton has announced that he has instructed his solicitors to share their legal research with the solicitors acting for Grounded Kiwis, who are also applying for a judicial review of the MIQ system. Grounded Kiwis is a newly incorporated society representing New Zealanders unable to get home due to a lack of available MIQ spaces. We will keep you updated with any developments on the Grounded Kiwis’ application.
Since the beginning of the COVID-19 pandemic, the Government has faced several legal challenges.
Most commonly, applicants have sought a judicial review of those decisions, alleging that the decision-making process was flawed or the decision itself was unlawful.
The Government has generally been successful in defending policy decisions. However, as demonstrated in Bolton v The Chief Executive of the Ministry of Business, Innovation and Employment, the High Court has also accepted challenges to decisions made when implementing those policies.
Bolton concerned the Government’s Managed Isolation and Quarantine (MIQ) facility. Mr Bolton challenged a decision made by the Ministry of Business, Innovation and Employment (MBIE) to deny his application to self-isolate at his home (rather than at a MIQ facility) following his return from a proposed business trip to the United States.
Unlike other cases where the Government has rectified a decision before the case reached Court, it chose to defend Mr Bolton’s application for judicial review.
Mr Bolton’s application for judicial review was successful. The High Court set aside MBIE’s declinature and directed that it reconsiders its decision.
The Case in More Detail
In September 2021, Mr Bolton applied to MBIE for an exemption from the Public Health Response (Isolation and Quarantine) Order 2020 (IQ Order), which requires isolation at a MIQ facility upon return to New Zealand. The application stated that:
- Mr Bolton would comply with all pre-departure testing and use private, not commercial, travel to the United States.
- Mr Bolton would implement stringent precautions when isolating from home, at least as vigorous as those on the government’s business travel self-isolation pilot. These measures included the use of the JUPL monitoring system.
- Mr Bolton and his wife are both fully vaccinated.
- Mr Bolton is 73 and therefore his health would be better protected at home rather than at a MIQ facility where the risk of contracting Covid-19 is magnified.
- There is a significant economic benefit to New Zealand to allow Mr Bolton to isolate at home. His business arrangements are in the interests of New Zealand and he would not otherwise travel overseas if he was required to isolate in a MIQ facility upon his return.
MBIE refused the application. It said that exemptions from managed isolation can only be “approved for exceptional reasons” and that based on advice from medical experts Mr Bolton’s needs could be safely managed in a MIQ facility.
Mr Bolton sought judicial review of the decision in the High Court on the basis that there had been an error of law, a failure to take into account relevant considerations, and that the application of the IQ Order was inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA).
The Court granted with Mr Bolton’s application. It held that:
- Consistent with the COVID-19 Public Health Response Act 2020, the overriding purpose of the IQ order was to prevent and limit risk of the outbreak or spread of COVID-19.
- The IQ Order is to be interpreted in a way that minimises the restrictions on the applicant’s freedom of movement. The purpose of the IQ Order may be able to be met by an applicant self-isolating at home in a way and on conditions that prevent and limit the risk of the outbreak or spread of COVID-19.
- As such, when considering an application for an exemption, MBIE was required to consider more than just the health needs of the applicant. It must also consider “other needs”, including (in this case): the “rigorous precautions” that Mr Bolton had proposed, the efficacy of those proposals in preventing and limiting the spread of COVID-19, and the economic considerations.
- MBIE also needed to consider the context in which the application was made, including that, as at 24 October 2021, 143 people who had COVID-19 were isolating at home.
- “Exceptional circumstances” are not required, as suggested in MBIE’s decision. This wording is not used in the IQ Order and is not the standard to be applied.
The Court set aside MBIE’s decision and directed that it reconsider Mr Bolton’s application. In doing so, the Court directed MBIE to take into account various factors including the need for Mr Bolton’s travel, his rights under the NZBORA (including the right to freedom of movement and as citizens to enter New Zealand without unreasonable limitation), and the risk of Mr Bolton contracting COVID-19 in MIQ.
Comment
This case is a useful demonstration of the power of judicial review to set aside a decision by a Government department, by challenging the process employed when making that decision.
The judicial review process can be useful tool to reverse a decision and obtain helpful guidance from the Court. This can result in a more favourable decision being made.
Hesketh Henry has experience challenging decisions made by a range of public bodies. If you have any questions about judicial review, or challenging decisions by Government departments (related to COVID-19 or otherwise), please contact the Litigation Team or your usual contact at Hesketh Henry.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.
