BORROWDALE v DIRECTOR-GENERAL OF HEALTH [2021] NZCA 520

BORROWDALE v DIRECTOR-GENERAL OF HEALTH [2021] NZCA 520 [2 November 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA520/2020[2021] NZCA 520BETWEEN ANDREW BORROWDALEAppellantAND DIRECTOR-GENERAL OF HEALTHFirst RespondentATTORNEY-GENERALSecond RespondentNEW ZEALAND LAW SOCIETYIntervenerHearing: 6–7 July 2021Court: French, Cooper and Collins JJCounsel: J A Farmer QC and L C A Farmer for AppellantU R Jagose QC and V McCall for RespondentsT C Stephens, J B Orpin-Dowell and M R G van Alphen Fyfe forIntervenerJudgment: 2 November 2021 at 2.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)PART IINTRODUCTIONQuestions addressed by this appeal[1] Two questions are addressed in this judgment. The first asks whether s 70(1)(f)and (m) of the Health Act 1956 (the Act) allowed the Director-General of Health(the Director-General) to issue three Orders that required:(a) all premises in New Zealand to be closed except those referred to as"essential businesses";1(b) people not to congregate in outdoor places unless they maintained"physical distancing";2(c) all people to remain at their place of residence except as permitted.3[2] The second question asks whether the Director-General unlawfully delegatedto other officials the decisions concerning what businesses could remain open pursuantto the Orders he made under s 70(1)(m) of the Act.[3] The Orders in question came into force on 25 March, 3 April and 27 April 2020and were an integral part of New Zealand's effort to prevent the outbreak and spreadof COVID-19.1 This was contained in the First Health Act Order. We explain how "essential businesses" weredefined at [6] and [72(d)] below.2 This was contained in the First Health Act Order. We explain how "physical distancing" wasdefined at [7] and [72(e)] below.3 This was contained in the Second and Third Health Act Orders. We explain the exceptions at [8]–[9] and [78] below.The statutory powers[4] We shall examine s 70(1)(f) and (m) of the Act in Parts II and III of thisjudgment. At this juncture we set out the key parts of those subsections in order toprovide context to the two questions we have explained at [1] and [2]:70 Special powers of medical officer of health(1) For the purpose of preventing the outbreak or spread of any infectiousdisease, the medical officer of health may from time to time, ifauthorised to do so by the Minister or if a state of emergency has beendeclared under the Civil Defence Emergency Management Act 2002or while an epidemic notice is in force,—(f) require persons, to be isolated, quarantined, as he thinksfit:(m) by order (i) require to be closed, until further order or for a fixedperiod, all premises within the district (or a stated areaof the district) of any stated kind or description:(iii) forbid people to congregate in outdoor places ofamusement or recreation of any stated kind ordescription (whether public or private) within thedistrict (or a stated area of the district):The Orders[5] In the following four paragraphs we shall provide a summary of the threeHealth Act Orders in issue. A more detailed explanation of the Orders is provided at[72] to [80].[6] The First Health Act Order, which cited s 70(1)(m) of the Act, required theclosure of all premises in New Zealand except for those that were listed in the appendixto the Order. Included in the appendix were "essential businesses", which were saidto be businesses that were essential to the provision of the "necessities of life" andthose businesses that supported them, "as described on the Essential Services list onthe covid19.govt.nz internet site maintained by the New Zealand government".[7] The First Health Act Order also prohibited people from congregating inoutdoor places of amusement or recreation throughout New Zealand. Congregationdid not, however, include people practising "physical distancing", which was definedin the appendix as "remaining two (2) metres away from other people, or if you arecloser than two (2) metres, being there for less than 15 minutes".[8] The Second Health Act Order, which cited s 70(1)(f) of the Act, required, untilfurther notice, all persons in New Zealand to be isolated or quarantined by remainingin their current place of residence, except as permitted for essential personalmovement. It also required all persons to maintain physical distancing, except fromtheir fellow residents or to the extent that was necessary to access or provide anessential business.[9] The Third Health Act Order cited s 70(1)(f) and (m) of the Act. That Orderrevoked the two previous Orders and required all persons in all regions to be isolatedor quarantined by remaining at their current place of residence and to maintainphysical distancing, with exceptions that were in all material respects the same asunder the Second Health Act Order. Clause 7 of the Third Health Act Order alsospecified instances of permitted essential personal movement. Clause 9 of the ThirdHealth Act Order required the closure of "restricted premises" with exceptions where"necessary work" was being undertaken. Clause 11 prohibited congregating inoutdoor places of amusement or recreation.The High Court proceedings[10] In his third amended statement of claim dated 1 July 2020, Dr Borrowdalepleaded three causes of action.First cause of action[11] The first cause of action focused upon statements made by the Prime Ministerand other officials prior to and during the first nine days of lockdown. Those first ninedays refer to the period between 25 March 2020 when the First Health Act Order cameinto effect and 3 April 2020 when the Second Health Act Order came into effect. Weneed not reiterate in this judgment the statements referred to in the first cause ofaction.4 Suffice to say they were to the effect that New Zealand citizens needed tostay at home and that enforcement action would be taken against those who breachedthe Government's directions. Thomas, Venning and Ellis JJ, sitting as a Full Bench ofthe High Court, held that the First Health Act Order did not go as far as to require NewZealanders to stay at home, so the statements were made without lawful authority andunlawfully limited the rights affirmed by ss 16, 17 and 18 of the New Zealand Bill ofRights Act 1990 (the NZBORA).5 The High Court issued a declaration to that effect.6There has been no cross-appeal by the Crown from that aspect of the High Courtjudgment.Second cause of action[12] The second cause of action challenged the lawfulness of the three Health ActOrders we have summarised at [6] to [9] on the basis that the Director-Generalexceeded his powers under s 70(1)(f) and (m) of the Act. The allegation in the secondcause of action was that the three Health Act Orders were ultra vires.[13] There were five elements to the second cause of action, namely:(a) The powers in s 70 could not be exercised by the Director-Generalbecause s 22 only conferred on the Director-General the functions (andnot the powers) of a Medical Officer of Health.(b) The special powers contained in s 70 of the Act cannot be properlyexercised on a national basis.(c) The power to require quarantine and isolation in s 70(1)(f) can only beexercised in relation to individuals rather than the entire population.4 These statements are set out in the High Court judgment. See Borrowdale v Director-General ofHealth [2020] NZHC 2090, [2020] 2 NZLR 864 [High Court judgment] at [148]–[173].5 At [197]–[199] and [225]. We explain all relevant sections of the New Zealand Bill of Rights Act1990 (the NZBORA) below at [104]–[120].6 At [291].(d) The power in s 70(1)(m) of the Act to close premises of "any statedkind or description" does not permit all premises to be closed subjectonly to specified exceptions.(e) The power to forbid people to "congregate" in s 70(1)(m) does notallow exceptions for social distancing.[14] Dr Borrowdale accepted, however, that had the restrictive measures beenprescribed by law, then they would have been reasonable limits on the relevantNZBORA rights that were demonstrably justified in a free and democratic society inaccordance with s 5 of the NZBORA.[15] The High Court held that all three Health Act Orders were authorised by eithers 70(1)(f) or (m) of the Act and therefore dismissed Dr Borrowdale's application for adeclaration that the three Orders were ultra vires.7Third cause of action[16] The third cause of action focused upon the exception to the First Health ActOrder. As we have noted at [6], that Order required the closure, until further notice,of all premises within New Zealand except those that were used for "essentialbusinesses", defined by reference to businesses that provided the necessities of life.[17] Dr Borrowdale argued that this aspect of the First Health Act Order involvedan unlawful delegation by the Director-General of his powers to determine what were"essential businesses" because, he argued, the determination as to what businessesprovided the necessities of life was made by other government officials and not by theDirector-General.[18] The High Court concluded that only part of the definition of essentialbusinesses "should be regarded as forming part of the core definition" in the Order.8The part of the definition that referred to the COVID-19 Government website was said7 At [139].8 At [268].by the High Court to be merely "advisory".9 From this position the High Courtreasoned that only the Director-General had determined what constituted essentialbusinesses and that "[t]here was no delegation and no breach of the rule of law".10[19] Dr Borrowdale appeals the findings in relation to the second and third causesof action. The first ground of appeal reiterates in slightly different ways the argumentsthat we have summarised at [13(c)–(e)]. The second ground of appeal contends theHigh Court erred when it decided the Director-General did not unlawfully delegate hispowers to determine what constituted necessities of life for the purposes of assessingwhether or not premises needed to be closed.[20] The New Zealand Law Society (the Law Society), which appeared as anintervener, supports the High Court's conclusion in relation to the first ground ofappeal but argues in relation to the second ground of appeal there may have been anunauthorised delegation by the Director-General.[21] Before engaging with the two grounds of appeal, we shall set out thebackground and explain the relevant legislation.PART IIBACKGROUNDThe emerging pandemic[22] Between late 2019 and early 2020, a new highly contagious and potentiallylethal respiratory virus was detected in Wuhan, China. Initially health officials calledit "novel coronavirus". On 11 February 2020 the World Health Organisation (WHO)announced from that day forward the virus would be called COVID-19.[23] Dr Bloomfield, the Director-General, has explained in an affidavit thatNew Zealand's response to COVID-19 reached a critical juncture on the weekend of9 At [268].10 At [279].21–22 March 2020. At that time there were 292,142 confirmed cases of COVID-19in the world and 12,783 people had died from the virus.[24] The unprecedented public health, social and economic challenge faced byNew Zealand officials during the first months of COVID-19 has been described in thefollowing way by the Director-General:The timeline of what happened was almost like a wave coming in: we couldsee it emerging in the distance during January and started watching carefully.In February the wave grew bigger and came closer: we started putting in placeborder protections and preparing the health system to deal with outbreaks. ByMarch we were realising that this threat was unprecedented, and if the virusgot established in New Zealand it would be catastrophic – there would bemany cases and deaths, the health system would be overwhelmed and theimpact on society and the economy would be appalling. We made the call thatwe did not have the option of "coping" with the virus as envisaged in the"manage it" phase of our pandemic plan:11 our only option was a prolongedeffort to keep it out and stamp it out. Furthermore it was clear that decisionsneeded to be made quickly and pre-emptively, hence the "go hard, go early"approach.Then came a tipping point around the weekend of 21 – 22 March: modellingcoming in from experts, both in New Zealand and around the world, wasshowing that once community transmission took hold, we would lose ourwindow to stamp out the virus, that there would only be one shot at this. Atthe same time, we were getting our first confirmed community transmissioncases. We realised that "go early" had changed to "go right now", and therewas no time left. What we thought could be done in two weeks or two dayshad to happen now: it was quite literally now or never. Hard decisions wererequired, and we made them, as it was now clear that this was the best – infact the only – way to protect the health and well-being of New Zealanders,prevent our health system being overwhelmed, and avoid prolonged damageto our economy.[25] At [26] to [83] we shall provide an overview of the COVID-19 crisis as itemerged in New Zealand and the steps taken between January and 13 May 2020 to tryand eliminate the virus in this country. It is not necessary for us to refer in any detailto the events after 13 May 2020 because the Third Health Act Order was revoked whennew orders were issued pursuant to the COVID-19 Public Health Response Act 2020which came into force that day.11 Explained below at [34].The New Zealand response to COVID-19[26] To place in context New Zealand's response to COVID-19, it is helpful tobriefly summarise the epidemiological evidence that emerged between 5 January and25 March 2020, which was the day on which the First Health Act Order was issued.The epidemiological evidence from 5 January to 25 March 2020[27] On 5 January 2020, the WHO issued a disease outbreak notification, whichalerted the international community to a cluster of pneumonia cases of unknown originthat was being investigated in Wuhan. The following week the WHO confirmed thata novel coronavirus was the cause of the respiratory illness detected in Wuhan. By21 January, it was reported that four people in Wuhan had died from the virus and thatit could be transmitted from person to person. It was not until 30 January, however,that the WHO declared a Public Health Emergency of International Concern. By then,170 people had died from the virus and the number of cases in the world had grownexponentially to 7,818. By the end of January, the virus had been detected in 18countries outside of China.[28] As at 14 February 2020, there were 49,053 confirmed cases of COVID-19 inthe world, of which 1,383 had resulted in deaths. By then, cases of COVID-19 hadbeen reported in 24 countries outside of China. On 28 February 2020, the WHO raisedthe threat level posed by COVID-19 to "very high at a global level". By that day,83,652 cases of COVID-19 had been reported around the world, of which 2,858 hadresulted in deaths. Health officials were carefully monitoring the spread of COVID-19in Italy, where 650 cases and 17 deaths had been reported by 28 February. The 28thof February was also a salutary day for New Zealand because on that day, the Ministerof Health announced the country's first case of COVID-19.[29] Epidemiological advice provided to the Ministry of Health (the Ministry) inlate February 2020 predicted that if there was a substantial and uncontrolled spread ofCOVID-19 in New Zealand, 65 per cent of the population would contract the virusand up to 336,000 people would require hospitalisation. It was estimated that the deathrate under this scenario would be between 12,600 and 33,600 people, with the elderly,Māori and Pasifika populations comprising a disproportionate share of hospitalisationsand deaths.[30] In early March 2020, the global warning signs were becoming extremelyalarming. In Italy for example, from 1 March to 3 March 2020, the total number ofCOVID-19 cases went from 1,128 to 2,036, and the total number of deaths went from29 to 52. On 4 March 2020, New Zealand confirmed its second COVID-19 case. On11 March 2020, WHO declared COVID-19 to be a global pandemic. The number ofCOVID-19 cases in New Zealand began to slowly increase so that by 18 March therewere 20 confirmed cases in this country. By that day, 191,127 cases of COVID-19had been reported in the world, of which 7,807 had resulted in deaths from the virus.[31] In mid-March the Ministry received a WHO report, which contained modellingdata from the United Kingdom and the United States. The report set out two optionsfor managing COVID-19, namely, mitigation and suppression. The WHO reportexplained that mitigation strategies were unlikely to prevent hundreds of thousands ofdeaths in the United Kingdom and the United States. That report complemented areport that the Ministry received from Professors Wilson and Baker from theUniversity of Otago, whose modelling predicted significant rates of death inNew Zealand from COVID-19.[32] By 20 March 2020, the number of COVID-19 cases in New Zealand hadincreased to 39. On the following day, the number of COVID-19 cases had increasedto 53. It was also on this day that New Zealand reported two cases of likely communitytransmission. From 22 March to 23 March 2020, New Zealand witnessed a 50 percent increase in COVID-19 cases from 66 to 102. On the same day, Professors Wilsonand Baker provided another report to the Ministry in which they explained that if NewZealand failed to eliminate COVID-19 the country would suffer a major public healthcatastrophe. The following day, the University of Otago team who had been advisingMinistry officials revised their earlier estimates of the adverse consequences of NewZealand not eradicating COVID-19. The new "worst case" scenario suggested up to36,000 New Zealanders would require ICU admission and that 27,600 could die.[33] By 25 March, there were 205 confirmed and probable cases of COVID-19 inNew Zealand and the number of cases of the virus in the world had reached 413,467,of which 18,433 had resulted in deaths.New Zealand Government's response[34] On 23 January 2020, the Ministry established an Incident Management Team.The following day, the New Zealand Government's Interagency Pandemic Group wasconvened. As its name suggests, that group comprised representatives from a rangeof government departments and agencies and was formed pursuant to the New ZealandInfluenza Pandemic Plan that had been drafted in 2010 and revised in 2017. That planinvolved a four-stage response to pandemics namely, "plan for it", "keep it out","stamp it out", and "manage it". At the same time, the Ministry established a groupof technical advisers, including epidemiologists and virologists whose role was toprovide expert advice and guidance to Ministers and other officials.[35] On 28 January 2020, the Ministry recommended that the Governor-General byOrder in Council designate the novel coronavirus as a notifiable disease under sch 1 ofthe Act.[36] By late January 2020, the Ministry was taking a number of measures to alertfrontline health workers, border officials, airlines and laboratories to the risks posedby the virus and the measures that would need to be taken to mitigate those risks. On28 January 2020, the Ministry activated its National Health Coordination Centre totake over from the Incident Management Team.[37] On 1 February 2020, Cabinet established a group of Ministers to take measuresto respond to the virus. The name of that group of Ministers changed throughout theperiod covered by this judgment. We shall refer to it as the COVID Ministers Group.The Director-General provided advice to those Ministers on 2 February 2020, whichresulted in temporary measures being put in place at New Zealand's border to try toprevent the virus entering New Zealand.[38] On 14 February 2020 when it became apparent that COVID-19 was spreadingglobally, the COVID Ministers Group extended the border restrictions that had beenput in place on 2 February 2020. During this time, the Director-General and hisofficials were becoming increasingly concerned about the risks of COVID-19 enteringNew Zealand from travellers arriving in this country.[39] In late February 2020, information from China provided Ministry officials witha more detailed appreciation of the infection and fatality rates associated withCOVID-19. At the same time, the Ministry was communicating with DHBsconcerning the establishment of local assessment centres and with the PharmaceuticalManagement Agency (PHARMAC) to ensure medical supplies were secure.[40] On 28 February 2020, in response to the WHO raising the COVID-19 threatlevel, New Zealand intensified its public health campaign to remind people of whatthey needed to do to keep themselves and their families safe.[41] In early March 2020, Mr John Ombler, a retired senior public servant and aformer Deputy State Services Commissioner, was appointed to lead the "All ofGovernment Response" (AOGR) to COVID-19. His appointment recognised that theGovernment's management of COVID-19 would impact upon all aspects ofNew Zealand society and would require significant assistance from the wider publicservice.[42] The leadership team of the AOGR group comprised Mr Ombler,Dr Bloomfield, Mr Mike Bush (the then Commissioner of Police), Ms SarahStuart-Black (the Director of Civil Defence and Emergency Management) andDr Peter Crabtree, a senior official from the Ministry of Business, Innovation andEmployment (MBIE). The AOGR group worked closely with Ministry officials toprovide the COVID Ministers Group with a strategy on 10 March 2020 that addressedthe epidemiological evidence about the transmissibility of COVID-19 and thedecisions that would soon need to be made to manage the virus in New Zealand. TheAOGR group recommended that New Zealand "go early, go hard, stay the course" inorder to reduce the peak numbers of any outbreak and spread the burden on the healthsystem and economy.[43] Mr Ombler has explained in an affidavit the extraordinary steps that officialsneeded to take in order to provide advice to Ministers and to give effect to decisions:Policy advice was being formulated and decisions were being made almost atthe same time as they were being operationalised and communicated to thepublic. We as officials were providing advice directly to the Ministers Group,and would generally be in attendance at all the Cabinet meetings. Thesemeetings were usually held at 10.30 in the morning through to about midday,following which there were a few hours in which to set in train the decisionstaken that morning and work on the issues that needed to be taken to Ministersthe next day. The agenda for the next day's Cabinet committee meeting wouldclose at 4 pm with papers going out to Ministers at that point, thoughfrequently there were a number of oral items and updates as well.[44] On 11 March 2020, the same day the WHO declared COVID-19 to be a globalpandemic, New Zealand added COVID-19 to pt 3 of sch 1 of the Act as a quarantinableinfectious disease. This in turn released the powers under the Act to quarantinetravellers arriving into New Zealand.[45] On 12 March 2020 the AOGR group warned Ministers the country was rapidlyapproaching "a tipping point, where [Ministers'] decisions [concerning] the borderwill either put New Zealand on a trajectory that: manages the public health riskeffectively or isolates New Zealand from the world and results in a shock to oureconomy which has deep and long lasting adverse impacts".12[46] A further paper was prepared for Cabinet on 14 March 2020, in whichMinisters were warned that "[o]ther countries have seen a few initial cases rapidlyescalate into very high peaks of cases in a matter of days" and that New Zealandofficials were seeing "an unprecedented increase in the number of cases throughoutthe world with significant spikes in developed and comparable countries".13[47] Cabinet agreed on 14 March 2020 to extend the temporary border measures sothat most New Zealanders and foreign nationals arriving in New Zealand over thecoming weeks would be expected to self-isolate for 14 days. It was also announcedthat mass gatherings would be restricted and that rules would be announced on16 March 2020 concerning cancellations and regulation of public gatherings.12 Affidavit of Dr Ashley Robin Bloomfield, 13 July 2020 at [147].13 At [151].[48] On 16 March 2020, the Minister of Health authorised the Director-General andMedical Officers of Health to use the special powers contained in s 70(1) of the Act.Later that day, the Ministry issued a notice saying that it would use s 70(1)(f) to requirepersons entering New Zealand to face mandatory quarantine if it consideredself-isolation measures to be inadequate.[49] Also on 16 March 2020, Cabinet agreed to prohibit outdoor and indoorgatherings of more than 500 people. Two days later, that prohibition was extended toindoor gatherings of more than 100 people. The Government also resolved to detainand deport temporary visa holders if they failed to comply with instructions from aMedical Officer of Health.[50] By this time "[i]t was becoming very clear [to the Director-General] thatmanaging the virus through 'flattening the curve' was not the best option: ifcommunity transmission became established, our health system would beoverwhelmed. Even a flattened curve would involve numbers that wereunmanageable. It was now clear that the only appropriate option was suppression, ifwe could achieve it".14[51] On 19 March 2020, following urgent advice to Cabinet, New Zealand's borderwas closed to everyone except New Zealand citizens, permanent residents, theirpartners and dependent children.[52] During this phase of New Zealand's response to COVID-19, the AOGR groupdeveloped a system of four alert levels. The restraints and degrees of responseintensified with each escalating level:(a) Alert Level 1 — Prepare. This recognises a situation where the diseaseis contained in New Zealand: the risk assessment is that COVID-19 isuncontrolled overseas and that isolated household transmission couldbe occurring in New Zealand.14 At [187]. By "flattening the curve" the Director-General meant reducing the incidence ofCOVID-19 as distinct from eliminating it.(b) Alert Level 2 — Reduce. This recognises a situation where the diseaseis contained but the risk of community transmission remains: the riskassessment is that household transmission and single or isolated clusteroutbreaks could be occurring.(c) Alert Level 3 — Restrict. This recognises a situation where there is ahigh risk that the disease is not contained: the risk assessment is thatcommunity transmission might be happening, and that new clustersmay emerge but can be controlled through testing and contact tracing.(d) Alert Level 4 — Lockdown. This recognises a situation where it islikely that the disease is not contained: the risk assessment is thatcommunity transmission is occurring and that there may be widespreadoutbreaks and new clusters.[53] On 20 March 2020, Ministry officials prepared a paper for the Prime Ministerexplaining the proposed alert level system and recommended New Zealand move toAlert Level 2 as soon as practicable and remain there for up to 14 days.[54] The COVID Ministers Group agreed to the Alert Level framework on20 March 2020 and that New Zealand would move to Alert Level 2 as soon as possible.[55] On 21 March 2020, the Prime Minister announced the Alert Level system andthat New Zealand was at Alert Level 2. At that time, it was thought New Zealandwould remain in Alert Level 2 for two weeks.[56] During the ensuing two days, it became clearer to the Director-General and theleaders of the AOGR group that it was likely there were cases of communitytransmission of COVID-19 in New Zealand and that it was becoming increasinglyimperative that the Government rethink how quickly New Zealand should move toAlert Levels 3 and 4. The Director-General has said that based upon the experienceof New South Wales, "[i]f community transmission became established [inNew Zealand] the number of cases would double every five days".15 The15 At [221].Director-General thought it was no longer appropriate for New Zealand to remain atAlert Level 2 and that "New Zealand was at a critical moment" because it riskedexperiencing an exponential growth in cases.16[57] A paper was prepared over the weekend of 21–22 March 2020, whichcontained a recommendation to Cabinet for New Zealand to move to Alert Level 4.The paper explained:Essential services81 In the case of a move to Levels 3 or 4, there is a need to maintaincertain services. In deciding which services need to continue, we havebeen guided by the following principles:81.1 Public health is paramount, so we need to minimise risks topublic health.81.2 We must continue our response to COVID-19.81.3 We must ensure the necessities of life for everyone inNew Zealand.81.4 We must also maintain public health, safety and security.[58] The task of identifying "essential businesses" started on 22 March 2020 whenMr Paul Stocks, a senior official in MBIE, met with other officials from a range ofgovernment departments, including the Ministry, to devise a system for determiningwhat would constitute essential businesses. That group of officials prepared a draftlist of the services they considered would be essential during Alert Levels 3 and 4.[59] The draft list identified 12 sectors that covered both public services and privateenterprises and the entities within those sectors that had been identified by officials asproviding essential services. In addition to those 12 sectors, the draft list also includedthe "lifeline utilities" listed in sch 1 of the Civil Defence Emergency Management Act2002, and the "essential services" in sch 1 of the Employment Relations Act 2000.[60] The Director-General has said in his affidavit that, to the best of hisrecollection, he reviewed the draft list. Mr Stocks used firmer language in hisaffidavit. He said the "draft list was agreed by the [AOGR] group (including the16 At [223].Director-General of Health and [Mr Ombler])".17 The draft list was then included inthe appendix to the paper that went to Cabinet.[61] At the same time as the Cabinet paper was prepared, the Chief Executive ofthe Department of the Prime Minister and Cabinet informed heads of governmentdepartments and other government agencies that Mr Ombler would be "responsiblefor administering and enforcing" the list of essential businesses but that governmentdepartments and agencies would need to assist in addressing questions about whatentities were essential services and in liaising with the sectors listed in the appendixto the Cabinet paper.[62] Cabinet accepted the recommendations in the paper at its meeting on 23 March2020.[63] Also on 23 March, the Director-General recommended the Prime Ministerissue an epidemic notice under the Epidemic Preparedness Act 2006. The paperrecommending this course of action explained why the Epidemic Preparedness Actwas relevant:10 The Epidemic Preparedness Act 2006 has powers to facilitate themanagement of epidemics or quarantinable diseases. These includegiving an Epidemic Notice, and Epidemic Management Notices.11 Giving an Epidemic Notice provides a platform to activate additionalchanges, or modify existing legislation, as the situation aroundCOVID-19 continues.[64] Following the Cabinet meeting on 23 March, the Prime Minister announcedthat New Zealand had now moved to Alert Level 3 with effect from 1.00 pm that dayand that the country would move to Alert Level 4 at 11.59 pm on 25 March 2020. Ather press conference the Prime Minister explained that the rapid escalation toAlert Level 4 was necessary to give New Zealand the best opportunity to break thechain of community transmission.[65] At approximately 3.00 pm on 23 March, the New Zealand GovernmentCOVID-19 website was updated. The website explained that New Zealand was at17 Affidavit of Paul Gerard Stocks, 13 July 2020 at [16].Alert Level 3. The website set out the following under the heading of "[e]ssentialbusinesses":Essential businesses, and those that support them, will continue to provide thenecessities of life for everyone in New Zealand.This means food, medicine, healthcare, energy, fuel, waste-removal, internetand financial support will continue to be available.[66] Under the heading of "[w]hat are essential businesses?", the website explainedthat the list may evolve over time but at the time the list was posted it comprised 15sectors. The website identified entities within those sectors that were deemed"essential services" and that more specific information for each sector would soon bepublished.[67] Later that day, the Minister of Finance announced a number of measures tosupport those people whose livelihoods would be disrupted by the measures that werebeing taken to prevent the spread of COVID-19 in New Zealand.[68] On 24 March 2020, the Prime Minister issued an Epidemic Notice inaccordance with the advice received by Cabinet at its meeting on 23 March 2020.[69] Also on 24 March, Dr Bloomfield, Mr Ombler and Ms Iona Halsted, theSecretary of Education, spoke to the public about the implications of New Zealandmoving to Alert Level 4. During that press conference the concept of the "bubble"was introduced to the public to describe the physical distancing and isolation thatwould be required during Alert Level 4.[70] A state of emergency was declared on 25 March 2020. That state of emergencywas extended on six occasions through to 13 May 2020. The declaration of a state ofemergency was in addition to the Prime Minister having issued an Epidemic Noticeand the Minister of Health having authorised the use of the special powers in s 70(1)of the Act.[71] On 25 March 2020, Parliament passed the COVID-19 Response (UrgentManagement Measures) Legislation Act 2020. That legislation (among other things):(a) made changes to the Local Government Act 2002 to enable membersof local government bodies to attend meetings by audio or visual links;(b) amended the Residential Tenancies Act 1986 by placing a freeze on rentincreases and tenancy evictions; and(c) amended the Education Act 1989 to enable the Secretary of Educationto direct educational facilities to open or close and to direct the ways inwhich education could be delivered and education entities controlledand managed.First Health Act Order[72] It was also on 25 March 2020 that the Director-General issued the first of thethree Orders that are the focus of this appeal. The First Health Act Order was said tobe made pursuant to s 70(1)(m) of the Act. The following five provisions of that Orderare of key importance:(a) The Order required the closure until further notice of "all premiseswithin all districts of New Zealand except those listed in the Appendixto [the Order]".(b) The Order forbade people to "congregate in outdoor places ofamusement or recreation of any kind or description in all districts ofNew Zealand" until further notice.(c) The Order said that "congregate" does not include people maintainingat all times "physical distancing as defined in the Appendix".(d) The appendix to the Order said it did not apply to "any premisesnecessary for the performance or delivery of essential businesses"."[E]ssential businesses" were defined to mean: businesses that are essential to the provision of thenecessities of life and those businesses that support them, asdescribed on the Essential Services list on the covid19.govt.nzinternet site maintained by the New Zealand government.(e) "[P]hysical distancing" was also defined in the appendix to theOrder to mean: remaining two (2) metres away from other people, or ifyou are closer than two (2) metres, being there for less than15 minutes.[73] Changes were made to the COVID-19 internet site between 23 and 25 March.The key changes relating to essential businesses concerned exemptions that were madeto the list of businesses that were required to close. The COVID-19 website on25 March 2020 said, "The Tiwai Point smelter is exempt from closure". The websiterecognised that NZ Steel, Methanex and pulp and paper plants were unlikely toprovide essential services (except to the extent that pulp and paper plants producedessential products), but the website explained that NZ Steel and non-essential pulp andpaper plants had been granted an opportunity to close gradually, and Methanex wasgranted an exemption to continue operating with scaled back operations in order toavoid a risk of gas supply instability.[74] The businesses that qualified as essential businesses were reviewed during theduration of the First Health Act Order. An example of a change made to the list ofessential businesses occurred on 9 April 2020, when Ministers apparently decided toinclude in the list of essential businesses the maintenance of stadia turfs, bowlinggreens, golf courses and nurseries. It appears Ministers determined the economicimpacts of not tending to these assets outweighed the public health risks, which couldbe adequately managed through public health measures.[75] The essential business list was maintained and updated on the covid19.govt.nzwebsite until 2 April 2020 when the list was transferred to the MBIE website. Fromthat date onwards the covid19.govt.nz website business page contained a link to theMBIE list of essential businesses. That list, and the process for reviewing andupdating the list was itself reviewed by the Ministry on 9 April 2020. Following thatreview the Director-General satisfied himself that "the MBIE decision making processand criteria for recognising essential businesses remain[ed] fit for purpose".[76] New Zealand's first death from COVID-19 was reported on 29 March 2020.Two days later, the community saw the highest daily increase in COVID-19 cases.Thereafter however, the number of new cases of COVID-19 started to decrease inaccordance with the modelling projections that had been relied upon by officials whenrecommending New Zealand move into Alert Level 4.Second Health Act Order[77] The Second Health Act Order issued by the Director-General came into effecton 3 April 2020. That Order was said to have been made under s 70(1)(f) of the Act.The key provisions of the Second Order required all persons within all districts ofNew Zealand to be isolated or quarantined:(a) by remaining at their current place of residence, except as permitted foressential personal movement; and(b) by maintaining physical distancing, except—(i) from fellow residents; or(ii) to the extent necessary to access or provide an essentialbusiness.[78] The Second Health Act Order specified what was permitted as "essentialpersonal movement". That concept included:(a) accessing essential businesses;(b) providing essential businesses;(c) limited recreational purposes;(d) shared bubble arrangements;(e) emergencies and complying with court orders; and(f) authorised travel.The Second Health Act Order adopted the same meanings of "essential businesses"and "physical distancing" as in the First Health Act Order.Third Health Act Order[79] On 20 April 2020, Cabinet agreed to move New Zealand from Alert Level 4down to Alert Level 3 with effect from 11.59 pm on 27 April 2020. At that time, theThird Health Act Order, which was said to have been issued pursuant to both s 70(1)(f)and (m) of the Act, came into force. That Order remained in force until 14 May 2020.[80] As we have noted at [9], the Third Health Act Order revoked the two previousOrders and required all persons in all regions to be isolated or quarantined byremaining at their current places of residence. The Third Health Act Order alsorequired all people to maintain physical distancing with the exceptions that wereessentially the same as those set out in the earlier Orders. The Order specifiedinstances of essential personal movement that were permitted and required the closureof "restricted premises" with certain exceptions. The Order also continued theprohibition on congregating in outdoor places of amusement or recreation.[81] By the time Alert Level 4 ended on 27 April 2020, New Zealand had reported1,469 confirmed and probable cases of COVID-19, and 19 people had died from thevirus. By 4 May 2020, when New Zealand was in Alert Level 3, there were no newcases of COVID-19 in the country.[82] On 13 May 2020, the COVID-19 Public Health Response Act came into force.We explain the key provisions of that legislation at [101] to [103]. The new legislationrendered it unnecessary for further notices to be issued in reliance upon the specialpowers contained in s 70(1) of the Act.[83] For completeness, we note in this overview that New Zealand moved fromAlert Level 3 to Alert Level 2 on 14 May 2020. By that stage New Zealand hadreported no COVID-19 cases during the previous three days. New Zealand moved toAlert Level 1 on 8 June 2020 and aside from some further occasions in which higherAlert Levels were imposed, New Zealand remained at Alert Level 1 up until thehearing of the appeal in July 2021, by which time New Zealand had reported fewerthan 2,800 cases of COVID-19 and 26 deaths from the virus.Legislative framework[84] In explaining the provisions of s 70(1) of the Act, it is helpful to first explainthe public health provisions that preceded the key provisions of the Act. The historyof public health legislation shows that generally, officials have responded topandemics by relying on general provisions such as those contained in s 70(1) of theAct. Bespoke legislation has only been invoked on the rare occasions that generalpowers, such as those in s 70(1), have proven to be inadequate.[85] The first efforts in New Zealand to manage the spread of infectious diseasescan be traced to the Harbour Regulations Ordinance 1842.18 More wider measureswere incorporated into the Public Health Acts of 1872 and 1876, which authorised aCentral Board of Health to issue regulations to guard against the spread of disease.19[86] In 1900, the Bubonic Plague Prevention Act 1900 was passed. It conferredupon the Governor a wide range of powers "to promptly and effectively deal withbubonic plague".20 That Act was repealed by the Public Health Act 1900.[87] The Department of Public Health was created by the Public Health Act 1900.The same Act established the roles of the Chief Health Officer and District HealthOfficers and authorised the making of regulations for "preventing or checking thespread of infectious disease",21 including regulations "[f]or the isolating ordisinfecting of persons, houses, buildings, places, and things".22 District HealthOfficers were, if authorised by the Governor to do so, able to exercise special powers,including the ability to "forbid persons to leave the place in which they [were]isolated or quarantined until they [had] been medically examined and found to be freefrom dangerous infectious disease".2318 Harbour Regulations Ordinance 1842 5 Vict 15, cls 3–6. This is also referred to as the HarboursAct 1842.19 Public Health Act 1872, s 21; and Public Health Act 1876, s 20.20 Bubonic Plague Prevention Act 1900, s 4(8).21 Public Health Act 1900, s 14.22 Section 14(5).23 Section 19(8).[88] The relevant provisions of the Public Health Act 1900 were consolidated intothe Public Health Act 1908. The powers conferred on District Health Officers wereinvoked during the smallpox outbreak in 1913 and during the 1918 influenzapandemic, commonly referred to as the "Spanish Flu" which caused the deaths ofapproximately 9,000 New Zealanders between October and December 1918.[89] Concerns about the way the powers conferred by the Public Health Act 1908were exercised during the 1918 influenza pandemic led to the establishment of aRoyal Commission of Inquiry in 1919 called the Influenza Epidemic Commission thatwas chaired by Sir John Denniston, a retired Supreme Court Judge.24 The terms ofreference of the Commission included that it report on the best methods of preventingor dealing with another pandemic and of administering public health services.[90] The Commission was concerned by the fractured nature of public health lawsin New Zealand. In particular, the Commission said there were unnecessary overlapsbetween the powers conferred upon local bodies under the Municipal CorporationsAct 1908 and those vested in District Health Officers under the Public Health Act1908. The Commission described public health laws as being extremely complex anddiffuse and recommended that there be consolidation and reform of those laws. TheCommission recognised that preventing and managing future pandemics required aunified community response and adopted language that echoed the sentiments ofutilitarian philosophers such as John Stuart Mill.25 The Commission said:26Just as the war called for general recognition of responsibility on the part ofall who wished for the preservation of justice and liberty, so does the warningof a great and devastating epidemic call upon all who desire the great benefitsof health and well-being to bear their share ungrudgingly in any work that isnecessary for the protection of the lives of our people.24 As a High Court Judge was then known.25 John S Mill On Liberty (4th ed, Longmans, Green, Reader and Dyer, London, 1869) at 21–22:"the only purpose for which power can be rightfully exercised over any member of a civilisedcommunity, against his will, is to prevent harm to others".26 Influenza Epidemic Commission "Report of the Influenza Epidemic Commission" [1919] II AJHRH-31A at 13.[91] The Commission's recommendations led to Parliament passing the Health Act1920 under which the Chief Health Officer became the Director-General of Health andDistrict Health Officers became Medical Officers of Health.27[92] Section 76 of the Health Act 1920 contained provisions that carried over somesections in the 1908 Act and created other new special powers. Section 76 of the 1920Act contained many of the provisions that can now be found in s 70 of the Act that arerelevant to this proceeding. For example, under s 76 of the Health Act 1920, theMinister of Health could authorise a Medical Officer of Health to exercise a numberof special powers for the purpose of preventing the outbreak or spread of anyinfectious disease. Those special powers included the authority to:(f) require persons, places, buildings, ships, animals, and things to beisolated, quarantined, or disinfected (n) prohibit until further order or for any fixed period, thecongregation of people at any racecourse, recreation-ground, or otherplace within the health district [93] The special powers contained in s 76 of the Health Act 1920 were invoked inresponse to the polio pandemic of 1925 and were used, for example, to prohibitchildren throughout the North Island attending "Theatres Schools Recreationand Sports Grounds Racecourses and all other places of public assembly, includingpublic picnics".28[94] In 1948, Parliament responded to the spread of tuberculosis by passingthe Tuberculosis Act 1948 which empowered Medical Officers of Health to requirepersons suspected of having tuberculosis, and who refused or failed to undergomedical examination, to undergo an examination.29 The Tuberculosis Act alsoauthorised Medical Officers of Health to apply to a Magistrate for orders compellingsufferers of tuberculosis who were in an infectious condition to be detained for up to27 Health Act 1920, s 5.28 "Order under s 76 of the Health Act 1920" Northland Age (Kaitāia, 15 January 1925) at 5.29 Tuberculosis Act 1948, s 9.three months in an "institution or some other suitable place" where they could be"properly attended and treated".30[95] The Tuberculosis Act, like the Bubonic Plague Prevention Act, was a bespokestatute designed to address a specific public health crisis. Unlike the BubonicPlague Prevention Act, however, the Tuberculosis Act remained in force for manyyears. It was not repealed until 2017.Health Act 1956[96] The Act, which came into force on 1 January 1957, aimed to "consolidate andamend the laws relating to public health". The Act deals with a wide range of publichealth matters, including drinking water, sanitation and the national cervical screeningprogramme. Medical Officers of Health are appointed to health districts by theDirector-General of Health.31 Section 22(1) of the Act enables the Director-Generalto exercise all of the functions of a Medical Officer of Health "in any part of NewZealand".[97] At [4] we have set out the essential parts of s 70(1)(f) and (m) of the Act. Wenow set out those paragraphs in full:70 Special powers of medical officer of health(1) For the purpose of preventing the outbreak or spread of any infectiousdisease, the medical officer of health may from time to time, ifauthorised to do so by the Minister or if a state of emergency has beendeclared under the Civil Defence Emergency Management Act 2002or while an epidemic notice is in force,—(f) require persons, places, buildings, ships, vehicles, aircraft,animals, or things to be isolated, quarantined, or disinfectedas he thinks fit:(m) by order published in a newspaper circulating in the healthdistrict or by announcement broadcast by a television channel30 Section 16(1).31 Health Act 1956, s 7A.or radio station that can be received by most households in thehealth district, do any of the following:(i) require to be closed, until further order or for a fixedperiod, all premises within the district (or a stated areaof the district) of any stated kind or description:(ii) require to be closed, until further order or for a fixedperiod, all premises within the district (or a stated areaof the district) of any stated kind or description inwhich infection control measures described in theorder are not operating:(iii) forbid people to congregate in outdoor places ofamusement or recreation of any stated kind ordescription (whether public or private) within thedistrict (or a stated area of the district):(iv) forbid people to congregate in outdoor places ofamusement or recreation of any stated kind ordescription (whether public or private) within thedistrict (or a stated area of the district) in whichinfection control measures described in the order arenot operating.[98] Section 70(1) of the Act identifies three possible prerequisites to the exerciseof the special powers by a Medical Officer of Health or the Director-General:(a) an authorisation from the Minister of Health to exercise the powers ins 70(1) of the Act; or(b) a declaration of a state of emergency under the Civil DefenceEmergency Management Act; or(c) the existence of an epidemic notice.[99] The reference to an epidemic notice in s 70(1) of the Act is to a notice issuedunder the Epidemic Preparedness Act. That Act was passed at a time when there weregrowing concerns about the spread of the Human Avian Influenza (H1N1). ThePrime Minister is authorised under s 5 of the Epidemic Preparedness Act to issueepidemic notices in circumstances where specific criteria are satisfied.[100] All three prerequisites we have referred to at [98] were in place at the time theFirst Health Act Order was issued.COVID-19 Public Heath Response Act 2020[101] The COVID-19 Public Health Response Act was passed in order to providefurther powers to prevent and limit the outbreak and spread of COVID-19. The typesof orders that can be made under that Act include requiring people to:32(i) stay in any specified place or refrain from going to anyspecified place:(ii) refrain from associating with specified persons:(iii) stay physically distant from any persons in any specified way:(iv) refrain from travelling to or from any specified area:(v) refrain from carrying out specified activities (for example,business activities involving close personal contact) orrequire specified activities to be carried out only in anyspecified way or in compliance with specified measures:(vi) be isolated or quarantined in any specified place or in anyspecified way:(vii) refrain from participating in gatherings of any specified kind,in any specified place, or in specified circumstances:(viii) report for and undergo a medical examination or testing ofany kind, and at any place or time, specified and in anyspecified way or specified circumstances:(ix) provide, in specified circumstances or in any specified way,any information necessary for the purpose of contact tracing:(x) satisfy any specified criteria before entering New Zealandfrom a place outside New Zealand, which may include beingregistered to enter an MIQF on arrival in New Zealand:[102] Orders may also be made in relation to, amongst other things, "places orother things" in order to:3332 COVID-19 Public Health Response Act 2020, s 11(1)(a).33 Section 11(1)(b).(i) require things to be closed or only open if specified measuresare complied with:(ii) prohibit things from entering any port or place, or permit theentry of things into any port or place only if specifiedmeasures are complied with:(iii) prohibit gatherings of any specified kind in any specifiedplaces or premises, or in any specified circumstances:(iv) require things to be isolated, quarantined, or disinfected in anyspecified way or specified circumstances:(v) require the testing of things in any specified way or specifiedcircumstances.[103] Section 12(1) of the COVID-19 Public Health Response Act makes clear thatorders issued under s 11 may apply generally to all people in New Zealand or to anyspecified class of people in New Zealand and may apply generally throughoutNew Zealand or to any area in New Zealand.Rights instruments[104] In his third amended statement of claim, Dr Borrowdale said six rights inthe NZBORA were breached by the three Health Act Orders in issue. The rightsidentified by Dr Borrowdale were:(a) Section 14 — Freedom of expression.(b) Section 15 — Manifestation of religion and belief.(c) Section 16 — Freedom of peaceful assembly.(d) Section 17 — Freedom of association.(e) Section 18(1) — Freedom of movement.(f) Section 22 — Liberty of the person.[105] The High Court held that the rights affirmed by ss 14 and 22 of the NZBORAwere not engaged in this case and preferred to focus on ss 16, 17 and 18.34 We do notunderstand Dr Borrowdale to be challenging that aspect of the High Court's judgment.In any event, we agree with the approach taken by the High Court and will proceed onthe basis that it is the rights affirmed by ss 16, 17 and 18 of the NZBORA that areengaged in this case.[106] Those three rights reflect arts 12, 21 and 22 of the International Covenant onCivil and Political Rights (ICCPR).35 Those rights are also affirmed in provisions incomparable instruments to the NZBORA, such as ss 2(c) and (d) and 6 of the CanadianCharter of Rights and Freedoms 1982.[107] Articles 12, 21 and 22 of the ICCPR contain provisions that say those rightsmay be restricted by law in circumstances where it is necessary to do so in the interestsof protecting public health or the rights or freedoms of others.[108] Article 4(1) of the ICCPR also acknowledges that:In time of public emergency which threatens the life of the nation and theexistence of which is officially proclaimed, the States Parties to the presentCovenant may take measures derogating from their obligations under thepresent Covenant to the extent strictly required by the exigencies of thesituation, provided that such measures are not inconsistent with their otherobligations under international law and do not involve discrimination solelyon the ground of race, colour, sex, language, religion or social origin.[109] Certain rights may not be derogated. The rights in the ICCPR that are treatedas being sacrosanct include the rights to life, religion, and freedom from torture andslavery. On the other hand, the rights to freedom of movement, assembly andassociation in arts 12, 21 and 22 of the ICCPR may be derogated.[110] For completeness, we record the rights contained in the NZBORA include theright in s 8 not to be deprived of life. No counsel suggested the NZBORA right not to34 High Court judgment, above n 4, at [88]–[89].35 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976), arts 12, 21 and 22.be deprived of life was engaged in this case. The position taken by counsel accuratelyreflects the narrow meaning that has been given to s 8 of the NZBORA.36[111] There are, however, broader "rights to health" contained in internationalinstruments that are relevant to the issues raised by this appeal.[112] The first such instrument can be found in the Constitution of the WHO.37 ThatConstitution was signed by New Zealand and 60 other countries in 1946.[113] The preamble to the WHO Constitution provides that:THE STATES Parties to this Constitution declare, in conformity with theCharter of the United Nations, that the following principles are basic to thehappiness, harmonious relations and security of all peoples:Health is a state of complete physical, mental and social well-beingand not merely the absence of disease or infirmity.The enjoyment of the highest attainable standard of health is one ofthe fundamental rights of every human being without distinction ofrace, religion, political belief, economic or social condition.The health of all peoples is fundamental to the attainment of peaceand security and is dependent upon the fullest co-operation ofindividuals and States.The achievement of any State in the promotion and protection ofhealth is of value to all.Informed opinion and active co-operation on the part of the public areof the utmost importance in the improvement of the health of thepeople.Governments have a responsibility for the health of their peopleswhich can be fulfilled only by the provision of adequate health andsocial measures.(emphasis added)36 Shortland v Northland Health Ltd [1998] 1 NZLR 433 (CA); AR (India) v Attorney-General [2021]NZCA 291; Lawson v Housing New Zealand [1997] 2 NZLR 474 (HC); and S v MidcentralDistrict Health Board HC Wellington CP237/02, 18 March 2003. See also Soobramoney vMinister of Health (Kwazulu-Natal) (1998) 1 SA 765 (ZACC).37 Constitution of the World Health Organization 14 UNTS 185 (opened for signature 22 July 1946,entered into force 7 April 1948).[114] Article 1 of the WHO Constitution provides that the objectives of the WHOinclude "the attainment by all peoples of the highest possible level of health". This issupplemented by the International Health Regulations (IHR) adopted by the WorldHealth Assembly in 1969.38[115] The stated purpose of the IHR is to:prevent, protect against, control and provide a public health response to theinternational spread of disease in ways that are commensurate with andrestricted to public health risks, and which avoid unnecessary interferencewith international traffic and trade.[116] The IHR are binding on New Zealand and, as noted by the High Court, "formthe principal international framework for preventing and controlling the spread ofdisease between countries".39[117] We also note that art 12 of the International Covenant on Economic, Social andCultural Rights (ICESCR) sets out the right to the "highest attainable standard ofphysical and mental health",40 and it says that full realisation of this right requiresstates to take necessary steps for the prevention, treatment and control of diseases,including epidemic diseases.[118] When Parliament's Justice and Law Reform Committee reported on theWhite Paper that proposed the Bill of Rights, the Committee recommended that anyBill of Rights drafted by the Government should include some of the major social andeconomic rights in the ICESCR.41 The Government, however, rejected thisrecommendation. As a consequence, when the Bill that became the NZBORA wasintroduced in 1989 its explanatory note stated:42The rights and freedoms set out in the Bill are confined to civil and politicalrights The Bill does not cover social, economic, and cultural rights. In thisrespect it departs from the recommendations of the Justice and Law Reform38 International Health Regulations (2nd ed, World Health Organization, Switzerland, 2005).39 High Court judgment, above n 4, at [43].40 International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened forsignature 16 December 1966, entered into force 3 January 1976).41 Justice and Law Reform Select Committee "Final Report of the Justice and Law ReformCommittee on a White Paper on a Bill of Rights for New Zealand" [1987–1990] XVII AJHR I8cat 4.42 New Zealand Bill of Rights Bill 1989 (203-1) (explanatory note) at i and ii.Committee, which recommended that certain social and economic rights beincluded in the Bill:It therefore follows that, by themselves, the rights in art 12 of the ICESCR concerningthe attainment of the highest standards of health and protection from epidemic diseasescarry less weight than may otherwise have been the case when assessing the rightsaffirmed by the NZBORA.Interpretation provisions of the NZBORA[119] The appeal also engages to varying degrees ss 5 and 6 of the NZBORA. Forconvenience we shall set out those sections:5 Justified limitationsSubject to section 4, the rights and freedoms contained in this Bill of Rightsmay be subject only to such reasonable limits prescribed by law as can bedemonstrably justified in a free and democratic society.6 Interpretation consistent with Bill of Rights to be preferredWherever an enactment can be given a meaning that is consistent with therights and freedoms contained in this Bill of Rights, that meaning shall bepreferred to any other meaning.[120] For completeness, s 4 of the NZBORA also provides:4 Other enactments not affectedNo court shall, in relation to any enactment (whether passed or made beforeor after the commencement of this Bill of Rights),—(a) hold any provision of the enactment to be impliedly repealed orrevoked, or to be in any way invalid or ineffective; or(b) decline to apply any provision of the enactment—by reason only that the provision is inconsistent with any provision of this Billof Rights.[121] We discuss the approach to applying these provisions of the NZBORA at[134]–[141].PART IIIFIRST GROUND OF APPEALDID THE ORDERS EXCEED THE SCOPE OF THE STATUTORYPOWERS?[122] The gravamen of the first ground of appeal is that the Director-Generalexceeded the powers conferred upon him by s 70(1)(f) and (m) of the Act when heissued the three Health Act Orders we have described at [72] to [80].[123] Mr L Farmer, who argued this aspect of the appellant's case, submitted that thetypes of measures put in place by the Health Act Orders could have been implementedbut only with the authority of bespoke legislation, such as the COVID-19Public Health Response Act.[124] In this Court, the specific challenges to the Health Act Orders were distilled tofour points of statutory construction.[125] First, in relation to the Second and Third Health Act Orders, it was submittedthat s 70(1)(f) can be invoked only in relation to an identifiable person or class ofpersons. It does not permit orders to be made to a very wide range of people or thepublic in general. To support this submission, it was argued that s 70(1)(f) uses theword "persons" instead of "people" to give it a narrower scope. To further supportthis submission, a contrast was drawn between s 70(1)(f) and (m). The latter providesthat orders are to be communicated via media, which shows it was intended to applyto a wide range of people. Absent similar language in s 70(1)(f), it was submitted thats 70(1)(f) was not intended to apply to wide groups of people.[126] Second, in relation to the Second and Third Health Act Orders, it was arguedthat s 70(1)(f) did not authorise the Director-General to order people to stay at homein their "bubbles". Rather, s 70(1)(f) could only be used to require individuals to beisolated, quarantined or disinfected and any order under s 70(1)(f) had to be confinedto one of those narrow objects. Mr Farmer also submitted the language of s 70(1)(f)of the Act requires the person issuing the order to actively facilitate isolation, orquarantine, or to administer disinfectants. From that proposition it was argued thatorders under s 70(1)(f) were ultra vires if the person making the order did not activelyfacilitate isolation, quarantine or the administration of disinfectants.[127] Third, in relation to the First and Third Health Act Orders, it was submittedthat they failed to comply with s 70(1)(m) of the Act because those Orders required allpremises to be closed except those in a list of exceptions. It was argued that by draftingthe First and Third Health Act Orders in negative terms (by referring to all premiseswith exceptions), the Orders failed to engage with the necessary assessment of thekind of characteristics that could be identified in premises that were to be closed inorder to prevent the outbreak or spread of infectious disease.[128] Fourth, in relation to the First and Third Health Act Orders, it was submittedthat they failed to comply with s 70(1)(m) of the Act because they contained anexception to congregation for "physical distancing". It was contended that thisexception was outside the scope of s 70(1)(m).The High Court approach to interpretation[129] In its judgment, the High Court said that determining whether the three HealthAct Orders went beyond the permissible limits of s 70(1)(f) and (m) of the Act "[did]not require a prior reading down of those provisions in a way that [was] at odds withtheir text and purpose".43 By this the Court meant that it was not necessary to construes 70(1)(f) and (m) of the Act in a way that was most consistent with the rights andfreedoms contained in the NZBORA if that produced a meaning that was at odds withthe text and purpose of those provisions. Two reasons underpinned this part of theCourt's reasoning.[130] First, the relevant rights and freedoms in the NZBORA "are not absolute and'must accommodate the rights of others and the legitimate interests of society as awhole', including the wider interest in protecting public health".4443 High Court judgment, above n 4, at [98].44 At [95], citing R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [186].[131] Second, s 70(1)(f) and (m) of the Act plainly contemplate limits on variousNZBORA rights and freedoms when those powers are exercised, "[b]ut the extent ofthose limits is not specified or capable of justification in advance of whatever crisisactivates their exercise".45 The Court reasoned that the real question was whether the"actual exercise of the s 70(1)(f) or (m) powers were necessary, reasonable andproportionate", an assessment which the Court said "depends on the particular (publichealth emergency) circumstances to which the exercise of power responds".46Because Dr Borrowdale had accepted that "subject to the question of legality themeasures effected by the Orders were a necessary, reasonable, and proportionateresponse to the public health emergency posed by COVID-19", any limits to NZBORArights were justified.47[132] This approach led to the Court saying that the second cause of action wasessentially confined to an "orthodox vires challenge".48[133] Mr J Farmer QC, senior counsel for Dr Borrowdale, relied in part uponcriticisms from Professor P A Joseph concerning the approach to interpretation takenby the High Court in this case. Professor Joseph has said that Dr Borrowdale'sproceeding "drew an unexpected judicial response" from the High Court. Instead ofopting for the least rights infringing meaning to s 70(1)(f) and (m) of the Act, theHigh Court "did the opposite: it engaged a s 5 analysis and held that the lockdownrestrictions [contained in the Health Act Orders] were 'a necessary, reasonable andproportionate response to the public health emergency'". Professor Joseph hasexpressed his concern that the High Court "discounted the rights-context under the[NZBORA]" and "read 'up' rather than 'down' the scope of the empoweringlegislation".4945 At [96].46 At [97].47 At [97].48 At [98].49 Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters,Wellington, 2021) at 1217–1218.Our approach to interpretation[134] Before we discuss the interpretation of s 70(1)(f) and (m) of the Act, weconsider it useful to set out the following interpretation principles. The meaning of anenactment must be ascertained from its text, in light of its purpose and context.50 Thiscan allow for considering the Act as a whole, the relevant legislative history, and rightsat common law and in instruments such as the NZBORA.51[135] When the interpretation of an enactment potentially engages NZBORA rights,the interpretation provisions in ss 4–6 of the NZBORA may also be engaged. Theapproach to applying these provisions was discussed by Tipping J in R v Hansen, withwhom the majority of the Supreme Court agreed.52 Tipping J said:[89] The initial interpretation exercise should proceed according to allrelevant construction principles, including the proposition inherent in s 6 thata meaning inconsistent with the rights and freedoms affirmed by the Bill ofRights should not lightly be attributed to Parliament. Once the resultingmeaning, which I will call Parliament's intended meaning, has been identified,the next step is to determine whether there is any inconsistency between thatmeaning and the Bill of Rights. If there is none, the matter rests there. If thereis an inconsistency, and this can conveniently be called apparentinconsistency, the question which then arises is whether the court's next stepis to examine whether a consistent or less inconsistent meaning can be givento the statutory language to accord with the s 6 preference; or rather, whetherthe next step is to examine the apparent inconsistency to see whether it isnevertheless reasonable and a demonstrably justified limit and thus permittedby s 5 of the Bill of Rights. I say "permitted" in the sense that by enacting aprovision with that meaning Parliament is not acting inconsistently with theBill of Rights of which s 5 forms an integral part.[90] I consider the latter is the appropriate course. The court does not movestraight from an apparently inconsistent meaning to look for another meaning.The court first examines the apparently inconsistent meaning to see whetherit constitutes a justified limit on the right or freedom in question. If it doesnot constitute a justified limit, the court goes back to s 6 to see if a consistentor more consistent meaning is reasonably possible. If, however, theapparently inconsistent meaning does constitute a justified limit, the apparentinconsistency is overtaken by the justification afforded by s 5. 50 Interpretation Act 1999, s 5; Legislation Act 2019, s 10(1); and Commerce Commission v FonterraCo-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22].51 See generally Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis,Wellington, 2021) at 286–287; Commerce Commission v Fonterra Co-operative Group Ltd, aboven 50, at [22]; Hansen, above n 44, at [89]; Cropp v Judicial Committee [2008] NZSC 46, [2008]3 NZLR 774 at [27], citing R v Secretary of State for the Home Department, ex parte Simms [2000]2 AC 115 (HL); and D v Police [2021] NZSC 2, (2021) 29 CRNZ 552 at [75]–[76].52 Hansen, above n 44.[136] Tipping J also provided a concise summary which he and the majority of theCourt endorsed. We set out that summary here:53Step 1. Ascertain Parliament's intended meaning.Step 2. Ascertain whether that meaning is apparently inconsistent with arelevant right or freedom.Step 3. If apparent inconsistency is found at step 2, ascertain whether thatinconsistency is nevertheless a justified limit in terms of s 5.Step 4. If the inconsistency is a justified limit, the apparent inconsistency atstep 2 is legitimised and Parliament's intended meaning prevails.Step 5. If Parliament's intended meaning represents an unjustified limit unders 5, the court must examine the words in question again under s 6, tosee if it is reasonably possible for a meaning consistent or lessinconsistent with the relevant right or freedom to be found in them. Ifso, that meaning must be adopted.Step 6. If it is not reasonably possible to find a consistent or less inconsistentmeaning, s 4 mandates that Parliament's intended meaning beadopted.[137] Tipping J acknowledged in Hansen that this approach would not necessarilybe the most appropriate in every case.54 As a matter of fact, not every case sinceHansen has followed the same approach.[138] One such case was Cropp v Judicial Committee.55 That case concerned theRacing Act 2003, which contained a provision for making rules relating to race safety.The issue was whether this allowed the making of rules that required random drugtesting. The interpretation of the empowering provision potentially engaged the rightagainst unreasonable search and seizure in s 21 of the NZBORA. However, theSupreme Court held that the Hansen approach did not apply, as, if a search and seizurewas unreasonable, it could not be justified under s 5.56 Ultimately, the Supreme Courtfound that the empowering provision did allow for the rules.57[139] More recently, the interpretation provisions of the NZBORA were consideredby the Supreme Court in Fitzgerald v R, whose judgment was delivered while we were53 At [92].54 At [93]–[94].55 Cropp v Judicial Committee, above n 51.56 At [33].57 At [41].deliberating on our decision.58 Counsel for Dr Borrowdale drew our attention to theSupreme Court's judgment, but we did not think it necessary to call for furthersubmissions. Fitzgerald concerned the "three strikes" sentencing regime, the effect ofwhich was to breach Mr Fitzgerald's right against disproportionately severepunishment in s 9 of the NZBORA. The issue was whether s 86D of the SentencingAct 2002 could be interpreted as subject to a limit so that it would not breach s 9. Themajority of the Supreme Court decided that the Hansen approach did not apply, asdisproportionately severe punishment could not be justified under s 5. The majoritytherefore started with s 6 by considering if a rights consistent interpretation of theprovision was possible,59 ultimately concluding that it was.60[140] Although Cropp and Fitzgerald did not apply the Hansen approach, they didnot doubt the continued application of Hansen. Rather, they show that the mostappropriate approach will depend on the issues raised on a case by case basis.[141] In this case, we consider the Hansen approach to be appropriate. We say thisbecause, unlike in Fitzgerald, this case involves rights that can be justifiably limitedunder s 5 of the NZBORA. We shall therefore begin our analysis by ascertainingParliament's intended meaning in accordance with general interpretation principles.In any event, we consider the rights consistent approach we are taking to be in linewith the approach taken by the majority in Fitzgerald.Parliament's intended meaning[142] At a general level, we are satisfied that when Parliament enacted s 70(1)(f) and(m) of the Act, it intended to confer on the Director-General and Medical Officers ofHealth wide-ranging powers to prevent the outbreak of infectious disease. Subject tothe constraints we discuss at [143], the powers in s 70(1) can be exercised wheneverthe Director-General deems it necessary to do so for the purposes of preventing theoutbreak or spread of an infectious disease. The breadth of the statutory language and58 Fitzgerald v R [2021] NZSC 131.59 At [46]–[48] per Winkelmann CJ, [175] per O'Regan and Arnold JJ and [244] per Glazebrook J.60 At [139] per Winkelmann CJ, [219] per O'Regan and Arnold JJ and [250] per Glazebrook J.Young J dissented at [324]–[329].the context in which the powers fall to be exercised weigh against a narrowconstruction of those powers.[143] The key constraints to the exercise of the special powers are found in s 70(1)of the Act, which limits the use of the special powers to circumstances in which theMinister has authorised the use of the s 70 special powers, or a state of emergency hasbeen activated, or an epidemic notice is in place. These criteria provide degrees ofpolitical oversight in relation to the exercise of the special powers, while the secondcriterion carries the additional assurance of independent assessments having beenmade by those responsible for declaring a state of emergency. As we have noted at[100], all three of these criteria were in place when each of the Health Act Orders wereissued.[144] The breadth of the authority conferred upon the Director-General and aMedical Officer of Health by s 70(1) of the Act reflects Parliament's appreciation thatthe special powers in s 70(1) are exercised by highly qualified health experts and thatthe circumstances in which the special powers may be exercised will cover a widerange of scenarios, some of which cannot be fully anticipated.Section 70(1)(f) — "persons"[145] The text of s 70(1)(f) enables the Director-General and a Medical Officer ofHealth to require persons to be isolated. Mr L Farmer submitted that the term"persons" was directed at individuals or groups of individuals rather than the publicin general.[146] We do not accept that submission. Parliament used the plural of person ins 70(1)(f). Its decision to do so means that orders under s 70(1)(f) may apply tomultiple people without limitation.[147] The breadth of the term "persons" is entirely consistent with the way thepredecessor to s 70(1)(f) was applied to very large segments of New Zealand'spopulation during the polio pandemic in 1925. When it re-enacted s 70(1) in the Act,Parliament must have intended that the powers in that subsection would continue tobe applied to broad populations.61[148] We are also not attracted to the distinction that Mr L Farmer endeavoured tomake between the requirement to notify individuals affected by s 70(1)(f) as opposedto the wide publication mechanisms contained in s 70(1)(m). We agree with theSolicitor-General when she submitted that an order can only be enforced if those towhom the order applies know or should reasonably know of its existence. Whetherthat is done by notifying an individual or through mass publication of the terms of theorder is immaterial.Section 70(1)(f) — "isolated" and "quarantined"[149] It was also argued that the terms "isolated" and "quarantined" could not extendto requiring healthy people to remain in their homes and in their social "bubbles"because the transitive verbs "isolated" and "quarantined" applied to persons who areor may be affected by an infectious disease.[150] Mr L Farmer drew support for this interpretation from the IHR in which"isolation" and "quarantine" are defined in the following way:62"isolation" means separation of ill or contaminated persons or affectedbaggage, containers, conveyances, goods or postal parcels from others in sucha manner as to prevent the spread of infection or contamination."quarantine" means the restriction of activities and/or separation from othersof suspect persons who are not ill or of suspect baggage, containers,conveyances or goods in such a manner as to prevent the possible spread ofinfection or contamination;[151] We find it sufficient to rely on the term "isolated". The IHR has given anepidemiological meaning to the term "isolation", which was used in its ordinary sensein New Zealand's public health Acts for many decades before the IHR was adopted.In applying a rights consistent approach to statutory interpretation, we prefer to61 See generally New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59,[2018] 1 NZLR 948 at [56].62 International Health Regulations, above n 38, art 1.continue to rely upon the natural and ordinary meaning of the term "isolated". Theterm "isolate" normally means the separation of a person from others or placing themapart. When, however, a rights consistent approach is taken to the meaning of the term"isolated" in s 70(1)(f), we are satisfied it can be construed so as to allow families orsmall groups of people to be isolated together but separate and apart from otherfamilies or small groups of people for the purpose of preventing the spread of disease.This approach produces a less demanding form of isolation than one that requires eachindividual to be isolated on their own and leads to a more rights consistent andcompassionate outcome.[152] Nor do we see merit in the proposition that the terms "isolated" and"quarantined" in s 70(1)(f) require some form of affirmative action by theDirector-General or a Medical Officer of Health beyond the issuing of an order. Thatapproach stretches the natural and ordinary meaning of the words "require persons to be isolated [or] quarantined". All that the person making the order needs to do isrequire those who are subject to the order to isolate or quarantine themselves.Section 70(1)(m) — "premises"[153] We are not persuaded by Mr L Farmer's submission concerning the purpose ofs 70(1)(m) of the Act. We can see nothing wrong with interpreting s 70(1)(m) asapplying to the closure of all premises except those that are excluded. This approachto construction recognises that when it conferred the special powers to close premisesin s 70(1)(m), Parliament referred to "all premises of any stated kind ordescription". Those words convey that Parliament wished to ensure those exercisingthe special powers under s 70(1)(m) could close a wide range of premises. We thinkthe power is validly exercised by an order that closes all premises with statedexceptions, provided the terms of the order are clear.Section 70(1)(m) — "congregate"[154] Similarly, the text of s 70(1)(m) permits the Director-General or aMedical Officer of Health to forbid people to "congregate in outdoor places of anystated kind or description". This is also a very broad power that is not limited toparticular kinds of premises or outdoor places. We are satisfied that this power isflexible enough to allow an exception for "physical distancing", which is more rightsconsistent than prohibiting all congregation.[155] Our approach to the text of s 70(1)(f) and (m) of the Act is reinforced whenregard is had to the broad purposes that underpin those provisions. As we have notedearlier, s 70(1)(f) and (m) can be traced to the Health Act 1920, which was passed inresponse to the report of the Royal Commission that was established following thecatastrophic public health crisis caused by the 1918 influenza pandemic. As we havealready observed, the Commission recommended a revision of New Zealand's publichealth laws, and while some of the language of s 76 of the 1920 Act was adopted fromearlier public health legislation, the overall objectives of the new Act were to achievea unified and comprehensive approach to public health in New Zealand. The HealthAct 1920 was passed at a time when Parliament understood that all members of societyneeded to "share ungrudgingly in any work that [was] necessary for the protection ofthe lives of [New Zealanders]".63 Section 70(1) of the Act, like its predecessorprovisions, reflects the social objective that the rights of individuals to freedom ofmovement, assembly and association may, in times of dire emergency, need to betemporarily suspended for the greater good.Apparent inconsistency with NZBORA[156] While we have been able to apply a more rights consistent meaning to the term"isolated" we cannot distort the text and purpose of s 70(1)(f) and (m) so as to achievemeanings that are consistent with the rights and freedoms contained in ss 16, 17 and18 of the NZBORA.[157] This reflects the stark reality that when Parliament enacted s 70(1)(f) and (m)of the Act, it deliberately intended to authorise the issuance of orders that would curtailthe rights of New Zealand citizens to engage in peaceful assembly, association andfreedom of movement.63 Influenza Epidemic Commission, above n 26, at 13.Justified limitation[158] Having reached that conclusion, we need to briefly complete the Hansenanalysis by explaining why Parliament's intended meanings of s 70(1)(f) and (m)constitute a justified limitation to the rights and freedoms affirmed by ss 16, 17 and 18of the NZBORA. We can be brief in this part of our judgment because of theresponsible approach Mr J Farmer took in relation to this issue.[159] Dr Borrowdale's third amended statement of claim acknowledged that,provided the Health Act Orders were vires, they were justifiable under s 5 of theNZBORA. That acknowledgment applied to the terms of the Health Act Orders which,we have found, were issued in accordance with s 70(1)(f) and (m) of the Act.[160] Dr Borrowdale has not sought to argue that s 70(1)(f) and (m) constituteunjustifiable limitations under s 5 of the NZBORA. There are two reasons whyDr Borrowdale would have faced an insurmountable hurdle had he tried to argue thatthe limits were not justifiable.[161] First, as we have explained at [107]–[109], the ICCPR allows limiting andderogating from the rights to freedom of movement, association and assembly.64 Theability to limit and derogate from rights in the ICCPR has been relied upon byNew Zealand courts to interpret the strength of the equivalent rights in theNZBORA.65[162] Second, the present limits are clearly justified in a free and democratic societyin order to protect the health and wellbeing of members of society by preventing andlimiting the impact of contagious diseases, such as COVID-19.64 The ability of states to limit rights may not give as much flexibility as derogating from those rights.See Paul M Taylor A Commentary on the International Covenant on Civil and Political Rights(Cambridge University Press, Cambridge, 2020). We need not resolve that issue because inaccordance with New Zealand's constitutional arrangements, Parliament has through s 70(1)(f)and (m) of the Act placed limitations upon the rights and freedoms affirmed by ss 16, 17 and 18of the NZBORA.65 R v Poumako [2000] 2 NZLR 695 (CA) at [3]; Zaoui v Attorney-General (No 2) [2005] NZSC 38,[2006] 1 NZLR 289 at footnote 6; Mist v R [2005] NZSC 77, [2006] 3 NZLR 145 at [13]; Hansen,above n 44, at [36] per Elias CJ; and Fitzgerald, above n 58, at [116] per Winkelmann CJ.Conclusions: First ground of appeal[163] Our conclusions in relation to the first ground of appeal are:(a) Applying all relevant construction principles, we are satisfied thatParliament intended s 70(1)(f) and (m) of the Act to be broad enoughto authorise the three Health Act Orders.(b) Parliament's intended meaning of s 70(1)(f) and (m) of the Act limitsthe rights and freedoms affirmed by ss 16, 17 and 18 of the NZBORA,but these limits are justified in a free and democratic society.PART IVSECOND GROUND OF APPEALWAS THERE AN UNLAWFUL DELEGATION OF STATUTORY POWER?[164] The second ground of appeal focuses on the part of the First Health Act Orderthat allowed "essential businesses" to stay open. According to Dr Borrowdale, theDirector-General delegated the decision on what businesses were "essentialbusinesses" to officials at MBIE and other departments. This, it was argued, offendedthe Latin maxim delegatus non potest delegare — a person vested with a statutorypower must exercise that power personally and not sub-delegate that power to anotherperson.[165] The gravamen of the second ground of appeal is that the Director-Generalcould not delegate the task of deciding what the necessities of life were.Dr Borrowdale's counsel acknowledged that, if the Director-General had decided whatthe necessities of life were, it would have been open to the Director-General todelegate to other officials the decision as to which businesses provided thosenecessities of life.[166] It is convenient at this juncture to briefly restate the relevant evidence, whichmay be distilled to the following points:(a) The task of drafting a list of essential businesses was undertaken byMr Stocks and his team.(b) A draft list of essential businesses was "reviewed" and "agreed" to bythe Director-General and other members of the AOGR group on22 March 2020, before the paper containing that draft list was presentedto Cabinet on 23 March.(c) The list of essential businesses was posted on the covid19.govt.nzwebsite at about 3.00 pm on 23 March with a warning the list wouldlikely change over time. The website said essential businesses werethose that would continue to provide the necessities of life for everyonein New Zealand:This means food, medicine, healthcare, energy, fuel,waste-removal, internet and financial support will continue tobe available.Beneath the heading as to what were "essential businesses" was a listof 15 public and private sectors and entities that provided essentialservices (including their supply chains).(d) The Director-General issued the First Health Act Order on 25 March,which, as we have explained, adopted the list of essential businesses onthe covid19.govt.nz website.(e) It is also apparent that changes were made to the schedule of essentialbusinesses during the ensuing days. Exemptions were granted to allow,for example, Tiwai Point and Methanex to keep operating.[167] The task of compiling the schedule of essential businesses was a mammothundertaking. It is not surprising that changes needed to be made to the schedule ofessential businesses that were permitted to stay open. Nor is it surprising that the taskof preparing and reviewing the schedule of essential businesses needed to be done bya team of suitably qualified people from across the public sector.[168] As we have previously noted, on 9 April 2020 two developments occurredconcerning the schedule of essential businesses:(a) The Ministry of Health completed a review of the work that had beendone by Mr Stocks and his team concerning the schedule of essentialbusinesses. The Director-General satisfied himself at that point that thework completed by Mr Stocks' team was "fit for purpose".(b) Ministers decided to exempt from businesses that needed to be closedthose that were involved in the maintenance of stadia turfs, bowlinggreens, golf courses and nurseries.[169] There is no evidence that directly addresses whether or not theDirector-General reviewed the list of essential businesses that evolved between 25March when he issued the First Health Act Order and 9 April 2020, which was the daythe Ministry completed its review of the work that had been undertaken by Mr Stocksand his team.Delegatus non potest delegare[170] The rationale for delegatus non potest delegare rests upon:66(a) "The presumption that the naming of a person to exercise somediscretion indicates that he was deliberately selected because of someaptitude peculiar to himself."(b) "The 'rule of law' since the common law recognizes no distinctionbetween government officials and private citizens, all being equalbefore the law, no official can justify interference with the common lawrights of the citizen unless he can point to some statutory provisionwhich expressly or impliedly permits him to do so."66 John Willis "Delegatus Non Potest Delegare" (1943) 21 Can Bar Rev 257 at 259–260.See generally Enid Campbell "Ostensible Authority in Public Law" (1999) 27 F L Rev 1.(c) The desire to ensure effective accountability for the exercise of publicpower.[171] In his thoughtful article, "Subdelegation of the Legislative Power",67Professor Colin Aikman illustrated how delegatus non potest delegare used to beinvoked on a regular basis in judicial review proceedings in this country.Unfortunately, however, early New Zealand references to the Latin maxim may havefailed to fully appreciate important qualifications to its scope. For example, inGeraghty v Porter, there can be found the following statement concerning thelawfulness of delegated powers and regulations made pursuant to theMotor Regulation Act 1908:68Such a delegated authority must be exercised strictly in accordance with thepowers creating it and in the absence of express power to do so the authoritycannot be delegated to any other person or body. The rule on the subject isexpressed in the maxim Delegatus non potest delegare and is of generalapplication Professor Aikman observed this statement of the law was "not quite asstraight-forward as appears on first reading".69 The unqualified embrace of the Latinmaxim in some earlier New Zealand cases may go some way towards explaining whythe authors of De Smith's Judicial Review describe as "conflicting" New Zealanddecisions concerning the validity of delegated decision-making powers.70[172] F E Jackson and Co Ltd v Collector of Customs was cited by Mr J Farmer insupport of his argument that the Director-General unlawfully sub-delegated hisdecision-making powers when he issued the First Health Act Order.71 That caseconcerned the validity of import control regulations in 1938. The regulations weremade by the Governor-General in Council and prohibited the importation into NewZealand of any goods except in accordance with a licence granted by the Minister ofCustoms. The regulations also purported to confer on the Minister the power todelegate to any licensing officer the Minister's powers to grant, revoke and modify67 Colin Aikman "Subdelegation of the Legislative Power" (1960) 3 VUWLR 69.68 Geraghty v Porter [1917] NZLR 554 (SC) at 556.69 Aikman, above n 67, at 72.70 Harry Woolf and others De Smith's Judicial Review (8th ed, Sweet & Maxwell, London, 2018)at [5-182].71 F E Jackson and Co Ltd v Collector of Customs [1939] NZLR 682 (SC).licences. The regulations were silent as to who qualified for a licence. The regulationswere made pursuant to both the Customs Act 1913 and the Reserve Bank of NewZealand Amendment Act 1936. The latter statute authorised the Governor-General inCouncil to make regulations that, amongst other matters, regulated "credit" so as topromote and maintain the "economic and social welfare of New Zealand".72[173] In the Supreme Court, Callan J recognised that the "pith and substance" of theregulations in issue was:73 to hand over the whole of this vital topic to a single Minister without theformulation of any principles to guide him in the performance of duties whichmight be of far-reaching and long-enduring importance, because Parliament,when it authorized any Government to impose exchange control, placed nolimit on the amount of exchange control that might be imposed.The Judge referred to the passage from Geraghty v Porter we have quoted at [171]and said that the regulation-making power in the Reserve Bank of New ZealandAmendment Act authorised the Governor-General in Council to make rules of generalapplication concerning the way licences might be issued.74 The powers, however,could not be sub-delegated to the Minister:75Delegated legislative power cannot be sub-delegated except in so far asParliament, which created the power, has said that it might be sub-delegated.[174] F E Jackson and Co Ltd v Collector of Customs can be compared to Mackay vAdams,76 which established that where a power to regulate is sub-delegated, thatconferment may be valid if the regulating authority lays down the principles orstandards upon which the sub-delegate is to exercise his or her authority.The distinction has sometimes been drawn between the sub-delegation of mere"administrative" powers, which is more likely to be valid, and the sub-delegation ofthe delegator's original "legislative" powers, which is less likely to be valid.77This distinction was reinforced in comments made by Turner J in the then SupremeCourt in Hookings v Director of Civil Aviation,78 and by this Court in Hawke's Bay72 Reserve Bank of New Zealand Amendment Act 1936, s 10(1) and (2).73 F E Jackson and Co Ltd v Collector of Customs, above n 71, at 729.74 At 733.75 At 733.76 Mackay v Adams [1926] NZLR 518 (SC).77 Aikman, above n 67, at 79–83; and Woolf and others, above n 70, at [5-163]–[5-164].78 Hookings v Director of Civil Aviation [1957] NZLR 929 (SC).Raw Milk Producers Co-op Co Ltd v New Zealand Milk Board,79 in which it was heldthe Milk Amendment Act 1951 did not authorise the sub-delegation by theGovernor-General of the power entrusted to him by that Act, namely, the power to fixtown milk producer prices.[175] Common law jurisprudence concerning delegatus non potest delegare nowrecognises that it is a prima facie rule for the construction of statutes.80 Accordingly,the scope of the presumption of statutory construction embodied by the Latin maximshould not be overstated. Professor Forsyth explains:81The maxim delegatus non potest delegare is sometimes invoked as if itembodied some general principle that made it legally impossible for statutoryauthority to be delegated. In reality there is no such principle; the maxim playsno real part in the decision of cases, though it is sometimes used as aconvenient label. In the case of statutory powers the important question iswhether, on a true construction of the Act, it is intended that a power conferredupon A may be exercised on A's authority by B. The maxim merely indicatesthat this is not normally allowable.[176] Factors that may help in deciding if there has been a valid sub-delegation ofpowers pursuant to legislative authority include:(a) The exact nature of the powers that the sub-delegate purports toexercise.82 Thus, as recognised by Dr Borrowdale in the present case,the Director-General could have lawfully sub-delegated to otherofficials, decisions about whether particular businesses satisfy thecriteria for being classified as essential businesses provided theDirector-General set out sufficient direction as to what those criteriawere.79 Hawke's Bay Raw Milk Producers Co-op Co Ltd v New Zealand Milk Board [1961] NZLR 218(CA).80 Mark Aronson, Matthew Groves and Greg Weeks Judicial Review of Administrative Action andGovernment Liability (6th ed, Law Book Co, Sydney, 2017) at [6.20].81 HWR Wade and CF Forsyth Administrative Law (11th ed, Oxford University Press, Oxford, 2014)at 260. See also Paul Craig Administrative Law (9th ed, Thomson Reuters, London, 2021) at [18–002].82 Mackay v Adams, above n 76.(b) Whether the sub-delegate exercises his or her authority autonomouslyor whether the delegator continues to exercise some control over thesub-delegate and, if so, the degree of that control.83(c) The breadth of the powers delegated may also be relevant. Thedelegator should identify with sufficient precision what thesub-delegate's authority is, instead of leaving it to the sub-delegate todetermine the boundaries of his or her authority.84(d) Where the exercise of a discretionary power is conferred upon a namedofficial, courts will be reluctant to allow another official to exercisethose powers in the absence of legislative indications to the contrary.85(e) The impact of the powers in question may also be a critical factor.Courts can be expected to look more critically where the sub-delegationinvolves interference with NZBORA and other common law rights.86[177] A valid sub-delegation of powers should not, however, be conflated withsituations where the law considers there to have been no sub-delegation at all. Twosuch situations have been recognised in the law. First, Ministers and other publicofficials are frequently asked to make decisions based upon recommendations thathave been prepared by other officials. The Minister or public official who reads anexecutive summary and ticks the recommendation "has neither delegated nor failedpersonally to take relevant considerations into account, if he or she in fact read andconsidered the department's summary, and if that summary contained all the salientmaterial facts, however briefly".8783 Provident Mutual Life Assurance Assoc v Derby City Council [1981] 1 WLR 173 (HL) at 181,where there was a right of appeal.84 Ratnagopal v Attorney-General [1970] AC 974 (PC).85 R v Solicitor Complaints Bureau, ex parte Curtin (1994) 6 Admin LR 657 (CA).86 Melbourne Corp v Barry (1922) 31 CLR 174 at 200.87 Aronson, Groves and Weeks, above n 80, at [6.80], citing Minister for Aboriginal Affairs vPeko-Wallsend Ltd (1986) 162 CLR 24; and Sita Queensland Pty Ltd v Beattie [2000] 2 Qd R 433(QSC) at 438–439.[178] Second, there is the Carltona agency principle.88 This holds that statutorypowers may be exercised by departmental agents, and the agent's acts will be deemedto be the acts of the power-holder on the basis that "[t]he agent is the principal's ghostwriter". Although the Carltona agency principle normally applies to the powers givento Ministers, it may also apply "to office-holders within the public service structure[who are] accountable to Ministers".89AnalysisThe High Court approach[179] We disagree with the High Court when it bifurcated the definition of essentialbusinesses and concluded:(a) the definition of "essential businesses" was contained in the words"businesses that are essential to the provision of the necessities of lifeand those businesses that support them"; and that(b) the balance of the sentence, "as described on the Essential Services liston the covid19.govt.nz internet site " was merely advisory.90[180] While those two parts of the sentence were separated by a comma, we do notthink the sentence can be split into two disconnected parts. The definition is containedin the entire sentence. Furthermore, when the definition of "essential businesses" isread in the context of other information on the website, it is apparent the public wasbeing told that a business was essential if it was included in the list of essential serviceson the website. The website expressly said that if a business "isn't on the list ofessential services" then it "must close". This conclusion is reinforced when regard ishad to the threats of enforcement contained on the website. Through the website theGovernment said that "[e]nforcement measures may be used" to stop non-essentialbusinesses from operating.88 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (CA).89 Aronson, Groves and Weeks, above n 80, at [6.130] and [6.140], citing Commissioner of InlandRevenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [58].90 High Court judgment, above n 4, at [268].[181] The text of the definition of essential businesses and the prescriptive andmandatory way in which essential businesses were identified on the website aredifficult to reconcile with the view that the words after the comma were merelyadvisory.[182] Our conclusion the High Court erred when it said half of the definition of"essential businesses" was advisory does not, however, determine the second groundof appeal.[183] There are two limbs to the second ground of appeal that we shall address:(a) was there a delegation of statutory powers by the Director-General? Ifso;(b) was that delegation unlawful?Was there a delegation of statutory powers by the Director-General?[184] The question posed at [183(a)] requires consideration as to whether or not theDirector-General made the decision as to what constituted essential businesses withinthe meaning of the First Health Act Order when he adopted the recommendationsprepared by other officials.[185] The answer to this question requires a careful evaluation of the affidavitevidence and the drawing of reasonable inferences. Following that approach we drawthe following conclusions:(a) The Director-General turned his mind to the draft list of essentialbusinesses when he considered and agreed to that draft list on22 March.(b) Even if the Director-General's consideration of the draft list of essentialbusinesses was not sufficient for him to have retained control overdeciding what would constitute essential businesses, any deficienciesat that stage in the Director-General's decision-making were remediedwhen, on 25 March, he adopted the definition of essential businessesand the list of those businesses that had been posted on thecovid19.govt.nz website on 23 March.[186] The Director-General was entitled to rely on the advice prepared by Mr Stocksand his team concerning the meaning and scope of "essential businesses". The factothers, including Cabinet Ministers, also agreed to the list of essential businesses doesnot detract from the fact that the Director-General retained control over whatconstituted essential businesses. He exercised that control when he adopted therecommendations of other officials when he issued the First Health Act Order. Weemphasise the following three points:(a) The definition of essential businesses in the First Health Act Order iscrucial and takes precedence over the draft definitions that precededthe signing of the First Health Act Order.(b) It is reasonable to infer, and there is no reason to doubt, theDirector-General fully appreciated and agreed with the terms of theFirst Health Act Order when he signed that Order on 25 March.(c) The fact Ministers and other officials previously agreed with thedefinition of essential businesses reflected the reality that theDirector-General needed to ensure Cabinet and other officials wereaware of and fully supported the terms of the First Health Act Orderbefore it was issued on 25 March.Was there an unlawful delegation in any event?[187] The approach we have explained at [184] to [186] disposes of the secondground of appeal. There is, however, an alternative reason why we believe the secondground of appeal cannot succeed. That reason focuses upon the actual guidance givento Mr Stocks' team by the Director-General and others for them to take into accountwhen compiling the draft list of essential businesses. The paper that was presented toCabinet on 23 March explained four principles that were to guide decisions as to whatconstituted essential businesses:(a) Public health was paramount.(b) The Government's response to COVID-19 must continue.(c) The Government "must ensure the necessities of life for everyone inNew Zealand".(d) Public health, safety and security needed to be maintained.A draft list of essential service providers was set out in annex 5 of the Cabinet paper.[188] While the guidelines were cast in broad terms, the criteria the Director-Generalapproved were sufficient for other officials to carry out the administrative task ofidentifying what businesses were essential. This places the circumstances of this casein a vastly different category from the facts of F E Jackson and Co Ltd v Collector ofCustoms, in which the terms of the purported delegation provided absolutely noguidance on who could qualify for an import licence.91 Rather, the circumstances withwhich we are dealing are more closely aligned to those in Mackay v Adams andHookings v Director of Civil Aviation, in which standards and principles were givento the sub-delegate.92[189] The Supreme Court's judgment in Cropp v Judicial Committee was alsoreferred to in the High Court judgment and relied upon by counsel in relation to thedelegation issue.93 As we have stated, that case concerned the interpretation of theRacing Act 2003 and did not engage questions of delegation. However, the SupremeCourt also held that rules made under a statutory power do not have to be detailedprovided the rules are sufficiently clear that Parliament would have intended thestatutory power to authorise the rules in question.9491 F E Jackson and Co Ltd v Collector of Customs, above n 71.92 Mackay v Adams, above n 76; and Hookings v Director of Civil Aviation, above n 78.93 Cropp v Judicial Committee, above n 51. See High Court judgment, above n 4, at [263]–[264].94 At [40].[190] We are also reinforced in our approach by the fact that the special powers ins 70(1) of the Act are emergency powers that may be exercised at very short noticeand in circumstances where the full magnitude of the emergency is not appreciated.Exemptions[191] We agree with the Law Society that the evidence tends to show that theDirector-General did not appear to be involved in the decisions concerning theexemptions provided to the Tiwai Point Smelter, other large industrial plants and themaintenance of stadia turfs, bowling greens, golf courses and nurseries. Thosedecisions appear to have been made by Ministers on the recommendations of advicethat probably came from Mr Stocks' committee.[192] It is possible that the decision to exempt those businesses from thenon-essential businesses that had to be closed was made without the approval of theDirector-General, or without any other lawful authority. If that was the case, then theexemption decisions were likely to have been ultra vires.[193] While there is frequently a close link between an unlawful delegation of astatutory power and decisions that are ultra vires, the two concepts should not beconflated. Unlawful delegation occurs where a statutory power that is conferred uponA is unlawfully delegated to B. In the context of this case, the decisions that are likelyto have been ultra vires occurred when C assumed authority to create exemptions incircumstances where those exemptions, if they were to have been made, should havebeen made by A.[194] We do not think any unlawful decision to exempt non-essential businesses fromclosure could be retrospectively authorised when the Director-General satisfiedhimself on 9 April 2020 that the decisions made by Ministers in response torecommendations from Mr Stocks and his team were "fit for purpose".9595 The High Court found that the Director-General's powers under s 70(1) could not be exercisedretrospectively. See High Court judgment, above n 4, at [216]. This is consistent with thepresumption against retrospectivity. See Pora v R [2001] 2 NZLR 37 (CA) at [40]; and OfficialAssignee v Petricevic [2011] 1 NZLR 467 (HC) at [31].[195] This case has been argued on the narrow basis that the Director-General (A)unlawfully delegated his powers under s 70(1)(m) of the Act to other officials (B). Thecase has not been argued on the basis that Ministers (C) made exemption decisionsthat were beyond their lawful powers although it does appear that Ministers and otherofficials probably acted ultra vires when directing that certain businesses be exemptfrom those that were required to close.Conclusions: Second ground of appeal[196] Our conclusions in relation to the second ground of appeal are:(a) The Director-General did not unlawfully delegate decisions concerningwhat businesses were essential businesses.(b) The subsequent exemptions to the First Health Act Order that allowedsome businesses to remain open were probably ultra vires.Result[197] The appeal is dismissed.Costs[198] Normally costs would be awarded to the respondents. We are, however,departing from the usual practice in this case because the issues raised by the appealengage matters of significant public importance. Dr Borrowdale and his counsel haveprovided an important service to the community by presenting the Court with theissues that we have addressed. In those circumstances we decline to make any orderfor costs.Solicitors:Francis J Handy, Wellington for AppellantCrown Law Office, Wellington for RespondentsNew Zealand Law Society, Wellington for Intervener