NOTTINGHAM v ARDERN [2020] NZCA 144

NOTTINGHAM v ARDERN [2020] NZCA 144 [4 May 2020]ORDER CONTINUING INTERIM NAME SUPPRESSION OF APPELLANTSUNTIL 4.00 PM ON 8 MAY 2020 OR SUCH OTHER DATE AS MAY BEORDERED BY THE SUPREME COURT.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA218/2020[2020] NZCA 144BETWEEN DERMOT GREGORY NOTTINGHAMAND ROBERT EARLE MCKINNEYAppellantsAND JACINDA ARDERN, ASHLEYBLOOMFIELD AND SARAH STUART-BLACKRespondentsHearing: 1 May 2020Court: Kós P, French and Collins JJCounsel: Appellants in personA M Powell and V McCall for RespondentsJudgment: 1 May 2020 at 4.00 pmReasons: 4 May 2020 at 4.00 pmJUDGMENT OF THE COURTA The appeals are dismissed.B Order continuing interim name suppression until 4.00 pm on 8 May 2020or such other date as may be ordered by the Supreme Court.C There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Nottingham and Mr McKinney allege that the New Zealand Government'sresponse to COVID-19 has subjected them to unlawful detention. Two generalquestions are addressed in this judgment:(a) Did the High Court err when it declined to issue writs of habeas corpusin favour of Mr Nottingham and Mr McKinney?1(b) Did the High Court err when it declined applications for interim namesuppression by Mr Nottingham and Mr McKinney in relation to theirproceedings?[2] Two sub-issues are raised under the question posed in [1(a)]:(a) are Mr Nottingham and Mr McKinney detained within the meaning ofthat term in the Habeas Corpus Act 2001 (the Act); and, if so(b) is habeas corpus the appropriate procedure for considering theallegations made by Mr Nottingham and Mr McKinney?[3] On 1 May 2020 we heard and determined the appeal by answering in thenegative the two questions posed in [1]. We now provide the reasons for our decision.Key measures taken by the Government in response to COVID-19[4] The following are the key measures taken by the Government in response tothe threats posed by the COVID-19 pandemic that are relevant to the issues raised bythe appeals.1 A v Ardern [2020] NZHC 796; and B v Ardern [2020] NZHC 814.[5] On 11 March 2020, COVID-19 was added to the lists of notifiable infectiousdiseases and quarantinable infectious diseases in the Health Act 1956.2[6] On 21 March 2020, the Prime Minister announced New Zealand's four-stagealert system for responding to the COVID-19 pandemic. Two days later,the Prime Minister explained New Zealand had moved to COVID-19 Alert Level 3and that on 25 March 2020, the country would be placed into the most restrictive level,COVID-19 Alert Level 4.[7] The Government took a number of measures to implement its response tothe pandemic, including:(a) On 25 March 2020, the Government issued an Epidemic Notice unders 5 of the Epidemic Preparedness Act 2006.3(b) On 25 March 2020, the Government declared a state of nationalemergency under the Civil Defence Emergency Management Act2002.4 That notice has since been extended on five occasions andremains in force today.5[8] Those measures laid the foundation for the Director-General of Health(the Director-General) to issue a series of orders under s 70(1) of the Health Act.For present purposes we need focus only upon three of those orders:(a) An order issued under s 70(1)(m) of the Health Act on 25 March 2020,which required the closure of all premises in New Zealand, other thanexempt premises. The list of exempt premises included privatedwelling houses. Also exempt were the premises of defined "essentialbusinesses". The order also banned people from congregating in2 Health Act 1956, sch 1, pt 1, s B; and sch 1, pt 3, inserted by cl 3 of the Infectious and NotifiableDiseases Order (No 2) 2020.3 Epidemic Preparedness (COVID-19) Notice 2020.4 "Declaration of State of National Emergency by Minister of Civil Defence" (25 March 2020)New Zealand Gazette No 2020-go1435.5 The current notice expires on 6 May 2020 at 12.21 pm, see "Declaration by Minister ExtendingState of National Emergency" (28 April 2020) New Zealand Gazette No 2020-go1801.certain outdoor places and required those who were permitted to leavetheir homes to maintain "physical distancing", meaning they wererequired to remain two metres away from other people. This order wasrevoked on 27 April 2020.6(b) An order issued under s 70(1)(f) of the Health Act on 3 April 2020requiring all people to remain in their current place of residence, whichhas come to be referred to as their "bubble", unless they were permittedto leave for defined "essential personal movement". This order alsorequired people to maintain "physical distancing" except from fellowresidents of their "bubble" or to access or provide an essential businessor service. This order was also revoked on 27 April 2020.7(c) The Health Act (COVID-19 Alert Level 3) order which came into forceon 27 April 2020 in place of the above orders. This order was alsoissued under s 70(1)(f) and (m) of the Health Act, and relaxed some ofthe restrictions associated with COVID-19 Alert Level 4. For example,the COVID-19 Alert Level 3 order permits people to leave their placesof residence to attend businesses and educational facilities that haveput in place "relevant infection control measures".8 This order alsochanged a number of restrictions relating to exercise and recreation thathad been prohibited under COVID-19 Alert Level 4 and permits peopleto extend their "bubble" arrangements under certain circumstances.Mr Nottingham and Mr McKinney[9] Mr Nottingham and Mr McKinney argue that the effect of the measures wehave summarised at [5]–[8] is to detain them unlawfully. They seek writs ofhabeas corpus under the Act.[10] Mr Nottingham and Mr McKinney chose not to be represented by a lawyer.Mr Nottingham purported however, to represent himself and unnamed members of his6 Health Act (COVID-19 Alert Level 3) Order 2020, cl 13.7 Clause 13.8 Clause 7(a)–(c).family. Mr McKinney purported to bring his application on behalf of his fellow"bubble" members. Mr Nottingham's family and Mr McKinney's "bubble" membersare not parties to their respective proceedings and Mr Nottingham and Mr McKinneycannot represent them. We will therefore treat each appellant's proceeding as beinglimited to the appellant alone.[11] At the time he commenced his proceeding in the High Court, Mr Nottinghamwas serving a sentence of home detention.9 On 24 April 2020, the Supreme Courtgranted Mr Nottingham bail pending his appeal to that Court against his sentence.10The conditions of his bail require, among other things, Mr Nottingham to reside at alltimes at an address agreed to by the Crown and Mr Nottingham and not tocommunicate with certain named people.11[12] The fact Mr Nottingham was serving a sentence of home detention when hecommenced his proceeding in the High Court could have raised issues as to whetheror not his application for habeas corpus was moot and an abuse of the Court's process.That option, however, is no longer appropriate in view of the fact Mr Nottingham hasbail, albeit on restrictive terms.[13] Mr Nottingham acknowledged to us that during both COVID-19 Alert Level 4and COVID-19 Alert Level 3, he has left his home to go to a supermarket and that heundertakes exercise away from his home.[14] Mr McKinney travelled to Mr Nottingham's home to conduct his appeal on thesame telephone as Mr Nottingham. He has also left his home over the past four weeksto go shopping and to undertake exercise.9 R v Nottingham [2018] NZDC 15373; Nottingham v R [2019] NZCA 344; and leave to appealagainst sentence granted in Nottingham v R [2020] NZSC 23.10 Nottingham v R [2020] NZSC 39.11 At [14].Habeas Corpus Act 2001[15] The Act superseded common law versions of the habeas corpus remedy, whichcan be traced to 1206.12 The Act is able to be invoked to challenge the legality ofa person's detention.13 Its purposes include reaffirming "the historic andconstitutional purpose of the writ of habeas corpus as a vital means of safeguardingindividual liberty".14[16] The Act defines detention in broad terms as including, "every form of restraintof liberty of the person".15 Once it is established that an applicant is detained, the onusnormally passes to the defendant to establish that the detention is lawful.16 In 2013,Parliament modified this general requirement so now the High Court may refuse toissue a writ of habeas corpus, without requiring the defendant to establish thatthe detention is lawful, if the Court is satisfied that habeas corpus "is not theappropriate procedure for considering the allegations made by the applicant".17Are Mr Nottingham and Mr McKinney detained for the purposes of the Act?[17] In the High Court, Peters J concluded neither Mr Nottingham norMr McKinney were detained for the purposes of the Act.18 She was satisfiedMr Nottingham and Mr McKinney were free to engage in many of their usualactivities. For example, they were free to exercise, go to a supermarket, talk to anyoneand access the internet.[18] The approach taken by Peters J reflected this Court's judgment inDrever v Auckland South Corrections Facility, in which it was held that specialconditions of parole imposed on Mr Drever did not constitute detention for thepurposes of the Act.19 After reviewing relevant authorities, this Court held that the12 David Clark and Gerard McCoy Habeas Corpus: Australia, New Zealand and The South Pacific(2nd ed, The Federation Press, Sydney, 2018) at 19. We record with great regret thatDr McCoy QC, one of the authors of this text, passed away in Hong Kong on 28 April 2020.Tribute was paid by the Court to Dr McCoy at the commencement of the hearing.13 Habeas Corpus Act 2001, s 6.14 Section 5(a).15 Section 3.16 Section 14(1).17 Section 14(1A)(b).18 A v Ardern, above n 1, at [25]–[27]; and B v Ardern, above n 1, at [26]–[28].19 Drever v Auckland South Corrections Facility [2019] NZCA 346, [2019] NZAR 1519.concept of detention under the Act refers to circumstances where a person is heldin "close custody".20 Examples referred to included where a person is detained inprison, or an immigration or deportation context.21[19] We acknowledge the breadth of the definition of detention in the Act. The term"liberty" has a range of meanings. The primary meaning of liberty is to be "free fromcaptivity, imprisonment, slavery, or despotic control".22 It is this meaning thatParliament had in mind when it introduced liberty into the definition of detention.[20] It is also important not to conflate restrictions on a person's movement withrestrictions upon their liberty. The spectrum of restrictions on a person's movementmay vary from imprisonment through to the comparatively mild restrictions imposedwhen a person is required, for example, to sit in an aeroplane during take-off orlanding. Imprisonment entails obvious restrictions upon a person's movement andliberty. It cannot be seriously argued, however, that the requirement to sit in anaeroplane seat involves restrictions upon a person's liberty, even though it necessitatesobvious restrictions upon their movement. In order to constitute detention underthe Act, restraint of a person's liberty must entail more than intermittent or limitedconstraint upon his or her general right of movement. Not every curtailment of theright to movement affirmed by s 18 of the New Zealand Bill of Rights Act 1990constitutes detention under the Act. Detention under the Act requires holding a personin close custody or in a similarly restrictive environment not shared by the publicgenerally.23[21] The assessment as to whether or not restrictions upon an individual'smovement constitute a restriction of their liberty, and therefore detention for thepurposes of the Act, requires an examination of all relevant facts and an evaluativejudgement as to whether or not Parliament intended that the established circumstancessatisfy the requirements of detention in the Act.20 At [25], citing Clark and McCoy, above n 12, at 66–67.21 At [29], citing Schuchardt v Commissioner of Police [2017] NZAR 1689 (HC) at [10].22 The Concise Oxford Dictionary: The Classic First Edition (Oxford University Press, Oxford,2011) at 469.23 Drever v Auckland South Corrections Facility, above n 19, at [25]—[30], citing Clark and McCoy,above n 12, at 68.[22] In undertaking this exercise, we apply the circumstances as they exist at thetime we heard the appeal.24 To do otherwise, would risk the Court engaging in anexercise in futility. That is a consequence that should always be avoided,but particularly so in the context of habeas corpus applications. Thus, it is therestrictions imposed by the COVID-19 Alert Level 3 order that determine whether ornot Mr Nottingham and Mr McKinney are detained under the Act.[23] While the COVID-19 Alert Level 3 order imposes restrictions on a person'smovements, it also permits a wide range of activity. Under the order Mr Nottinghamand Mr McKinney may, for example:25(a) access businesses and services that have the relevant infection controlmeasures in place;(b) attend work where the relevant infection control measures are in place;(c) engage in appropriate outdoor exercise or recreation in their region thatis consistent with physical distancing; and(d) extend their bubble arrangements to include other people.26[24] Subject to Mr Nottingham's bail conditions, he and Mr McKinney can continueto communicate with whomsoever they wish, and they may continue to haveunrestricted access to the internet. They have taken advantage of many of theseopportunities.[25] The restrictions on movement imposed by the COVD-19 Alert Level 3 orderdo not involve restrictions upon the liberty of Mr Nottingham and Mr McKinney asParliament intended liberty to be understood in the Act. Mr Nottingham andMr McKinney have not therefore been detained for the purposes of the Act.24 Misiuk v Chief Executive, Department of Corrections [2010] NZCA 480, [2011] 2 NZLR 114 at[25].25 Health Act (COVID-19 Alert Level 3) Order, cl 7.26 Schedule 1 defines "extended bubble arrangements" as an agreement between all of the adultresidents of two or more homes to isolate or quarantine in accordance with the order as if theywere one residence. This is to be done for the purpose of keeping connections with family orwhānau, enabling caregiving, or supporting persons living alone or otherwise isolated.Is habeas corpus an appropriate procedure in this case?[26] Peters J decided that if she were wrong in her assessment that Mr Nottinghamand Mr McKinney were not detained, she was nevertheless satisfied that theirdetention was lawful.27[27] If Mr Nottingham and Mr McKinney are detained, we do not think it isnecessary to determine the lawfulness of their detention. This is becausehabeas corpus is not the appropriate procedure for considering their allegations.[28] As has been noted by the Regulations Review Committee28 and two ofNew Zealand's leading public law academics,29 there are unresolved questions aboutthe lawfulness of the notices issued under s 70 of the Health Act.[29] Those questions, cannot, however, be appropriately addressed in the context ofan application for habeas corpus. Our reasons for this conclusion are:(a) The questions raise complex legal issues that are not amenable to thetruncated procedures prescribed in the Act.(b) If unsuccessful, the Crown has no right of appeal under the Act.30We do not accept that would be a reasonable consequence if questionsconcerning the lawfulness of the notices issued under s 70 ofthe Health Act were answered against the Crown.(c) An expedited application for judicial review seeking declarations inthe High Court is the only appropriate procedure in the circumstancesof this case.27 A v Ardern, above n 1, at [40] and [43]; and B v Ardern, above n 1, at [39] and [42].28 Letter from Alastair Scott MP (Chair of the Regulations Review Committee) to Dr AshleyBloomfield (Director-General of Health) regarding notices issued under s 70 of the Health Act1956 (20 April 2020), available from <www.parliament.nz>.29 Andrew Geddis and Claudia Geiringer "Is New Zealand's COVID-19 lockdown lawful?"(27 April 2020) UK Constitutional Law Association <ukconstitutionallaw.org>.30 Habeas Corpus Act, s 16(1)(b); and Hunia v Parole Board [2001] 3 NZLR 353 (CA) at [5].(d) Applications for habeas corpus should not be entertained incircumstances where they are really being used as a substitute forjudicial review.[30] Even if Mr Nottingham and Mr McKinney are detained we would, if it werenecessary to do so, decline to issue a writ of habeas corpus without requiringthe Crown to justify the legality of their detention because habeas corpus is not theappropriate procedure for considering their allegations.Name suppression[31] Mr Nottingham and Mr McKinney have also appealed the decision of Peters Jdeclining their applications for name suppression.31 Orders were made inthe High Court to continue interim name suppression for 20 working days followingthe High Court's judgment, subject to further order of the Court.32 Before us,Mr Nottingham and Mr McKinney sought interim name suppression for six months.This is because they say they are concerned about their safety, and in the case ofMr Nottingham, the safety of his family. They claim they are likely to be subject tophysical danger from other New Zealanders, who may take issue with their challengeto the lawfulness of the Government's measures to combat the risks of the COVID-19virus.[32] The starting point is the application of the principle of open justice, whichnormally requires parties in civil proceedings to be identified. The Supreme Court hasexplained:33The principle of open justice is fundamental to the common law system ofcivil and criminal justice. It is a principle of constitutional importance, andhas been described as "an almost priceless inheritance". The principle'sunderlying rationale is that transparency of court proceedings maintains publicconfidence in the administration of justice by guarding against arbitrariness orpartiality[33] There are, however, circumstances in which the principle of open justiceshould yield to a party's concerns in order to ensure justice is achieved in individual31 A v Ardern, above n 1, at [9]; and B v Ardern, above n 1, at [13]–[14].32 A v Ardern, above n 1, at [10]; and B v Ardern, above n 1, at [15].33 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2] (footnotes omitted).cases.34 The present case, is however, far removed from the types of circumstancewhich justify departure from the principle of open justice.[34] There is no factual basis upon which we can conclude that Mr Nottingham,his family, or Mr McKinney will suffer physical harm if the public knows they are theindividuals who have initiated these proceedings. It is possible they may receive someunwelcome comments and that they may be upset by what others have to say.Those are, however, not proper grounds for granting them name suppression, even onan interim basis.Ancillary matters[35] When we announced our decision on 1 May 2020, Mr Nottingham andMr McKinney said that they would seek leave to appeal to the Supreme Court.They sought an extension of the interim name suppression orders until further orderin the Supreme Court. We ordered that the existing interim name suppression orderscould continue until 4.00 pm on 8 May 2020 or such other time as the Supreme Courtmay determine.[36] Mr Nottingham and Mr McKinney have referred to the respondents in person.In doing so, Mr Nottingham has engaged in political comments of a personalisednature, particularly against the Prime Minister. Respondents in applications forhabeas corpus should be referred to by the office they hold35 or by namingthe Attorney-General as the respondent.36 If the matter proceeds further, thatcorrection should be made by Mr Nottingham and Mr McKinney.[37] Mr Nottingham and Mr McKinney wish to appeal a decision of Peters Jdeclining their application to have their proceedings transferred directly to this Court.The fact their appeal has now been heard by this Court renders that aspect of theirappeal nugatory.34 Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512 at [29]–[31].35 Habeas Corpus Act, s 8; and Crown Proceedings Act 1950, s 14(2).36 Crown Proceedings Act, s 14(2)(c).Result[38] The appeals are dismissed.[39] Order continuing interim name suppression until 4.00 pm on 8 May 2020 orsuch other date as may be ordered by the Supreme Court.[40] There is no order for costs.Solicitors:Crown Law Office, Wellington for Respondents