BOLTON v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2021] NZHC 2897

BOLTON v THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION ANDEMPLOYMENT [2021] NZHC 2897 [29 October 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-1889[2021] NZHC 2897UNDER the Judicial Review Procedure Act 2016BETWEEN MURRAY BOLTON and WATI TALEIZOINGApplicantsAND THE CHIEF EXECUTIVE OF THEMINISTRY OF BUSINESS, INNOVATIONAND EMPLOYMENTRespondentDIRECTOR-GENERAL OF HEALTHSecond RespondentMINISTER FOR COVID-19 RESPONSEThird RespondentHearing: 27 October 2021Appearances: J R Billington QC, JWH Little and J Lethbridge for the ApplicantsS Kinsler, E Watt and H Botha for the RespondentsJudgment: 28 October 2021Reasons: 29 October 2021JUDGMENT OF VENNING JThis reasons judgment was delivered by me on 29 October 2021 at 12:00 pmpursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors / Counsel:Mr J R Billington QC and Mr JWH Little, Barristers, Shortland Chambers, AucklandMs J Lethbridge (applicants' instructing solicitor), Martelli McKegg, AucklandMr S Kinsler, Ms E Watt and Ms H Botha, Meredith Connell, AucklandIntroduction[1] Murray Bolton and his partner Wati Zoing (the applicants) are scheduled toattend a board meeting in Boston on 11 and 12 November 2021. They applied for anexemption to the requirement under the COVID-19 Public Health Response (Isolationand Quarantine) Order 2020 (the IQ Order) that they be required to isolate at an MIQfacility on their return to New Zealand. The applicants sought approval to self-isolateat their home instead. On 17 October 2021 Andrew Milne, an Associate DeputySecretary with the Ministry of Business Innovation and Employment (MBIE),declined the application. The applicants seek to judicially review that decision.Background[2] Mr Bolton is a very successful businessman. Since 1997 his focus has beenprimarily on direct investment in emerging New Zealand companies. One of these isTransaction Services Group (TSG) which he founded in 1994. TSG provides businessmanagement software and integrated payment solutions to various industries usingNew Zealand technology. It operates worldwide. Earlier this year TSG merged withClearant, a United States based company, to form Xplor Industries (Xplor).[3] Xplor has 180 plus employees in New Zealand and is a significant contributorto the New Zealand economy. It generates income of between $30 and $50 millionannually. Xplor is preparing to list on either the New York Stock exchange or theNASDAQ. Mr Bolton sought the exemption to enable him to attend the two-day Xplorboard meeting in Boston next month to discuss the listing. Mr Bolton is the only NewZealander on the board and the only person with a personal interest in ensuring thecontinued success and growth of the business in New Zealand.[4] Mr Bolton is 73 years old. He has stayed in isolation and quarantine in an MIQfacility in the past. He has applied for but missed being selected in the ballot for aplace in the pilot scheme recently introduced by the government for business peoplerequired to travel overseas.The application for exemption[5] On 24 September 2021 Mr Bolton's solicitors made an application on hisbehalf for an exemption from MIQ to enable him and his partner to attend the boardmeeting and to self-isolate on their return as opposed to staying in an MIQ facility.The application was made in a detailed letter. In support of the application Mr Boltonsubmitted:(a) It was not necessary for him and his partner to quarantine in an MIQfacility to minimise the risk of transmitting COVID-19 into thecommunity. Mr Bolton had proposed controls at least as stringent asthose applying to others who may safely isolate at home including thosewho will take part in the government's business travel self-isolationpilot.(b) Mr Bolton and his partner are fully vaccinated with the Pfizer vaccine.Their residence is large and gated. They would comply with all usualpredeparture testing requirements and fly by private jet, as opposed toa commercial carrier.(c) Mr Bolton is 73. His health would be better protected if permitted toisolate at home rather than in an MIQ facility, including because of therisk of contraction of COVID-19 at such a facility.(d) There is a significant benefit to the New Zealand economy in permittingMr Bolton to self-isolate at home. It would enable Mr Bolton to traveloverseas for crucial business engagements that are in the interests ofthe country. Mr Bolton will not otherwise travel overseas because ofthe high likelihood he would not be able to secure an MIQ allocationfor his return and his difficult experiences of MIQ in the past.[6] Mr Bolton's solicitors addressed the application to the Director General ofHealth, the Chief Executive, MBIE and the Isolation Exemption team MIQ withinMBIE.[7] On 7 October 2021 Philip Knipe, the chief legal advisor with the Ministry ofHealth, advised that the application would not be referred to the Director General. Itwould be dealt with in accordance with the standard process for applications forexemption. Mr Knipe advised the application was to be referred for considerationunder, and in accordance with, clause 12 of the IQ Order.[8] Despite that advice, it appears that as the form submitted with the letter wasthe form also used for applications for exemption under clause 14 of the IQ Order, MrMilne initially considered the application under that clause. On 12 October 2021 hedeclined Mr Bolton's application for exemption from managed isolation. The reasonsgiven for declining the application were set out in the following letter:12 October 2021Application number: MIQ-19634-D1V4Applicant full name: Lisa Hopkins at Martelli McKegg LawyersOn behalf of Murray John Bolton and Wati Talei ZoingTēnā koe LisaYour application for exemption from managed isolationThank you for your application on behalf of Murray John Bolton and WatiTalei Zoing.The purpose of managed isolation is to ensure people do not have COVID-19before they return to our communities and are not placed in a position wherethey could transmit the virus. Exemption or early release from managedisolation can therefore only be approved for exceptional reasons.Having considered your circumstances and all of the information available,and balanced these against the risk to public health, I have determined, thatunfortunately, your application on behalf of Murray and Wati must bedeclined. They are therefore required to complete 14 days in one of ourmanaged isolation facilities.If you believe there are medical reasons which would mean Murray or Watiwould be unable to complete 14 days in managed isolation then you are ableto submit an application for a medical exemption. This will requiredocumentation from a medical professional to be submitted with theapplication.Ngā mihi nuiAndrew MilneAssociate Deputy Secretary Managed Isolation & QuarantineMinistry of Business, Innovation and Employment[9] That decision is not in issue in these proceedings, but it is relevant to the waythe application under clause 12 was considered. Subsequently, Mr Milne reassessedthe application under clause 12.[10] On 17 October 2021, Mr Milne declined the application for exemption underclause 12 of the IQ Order as well, on very similar terms as shown in his letter of thatdate:17 October 2021Application number: MIQ-19634-D1V4Applicant full name: Lisa HopkinsOn behalf of: Murray Bolton and Wati Talei ZoingTēnā koe LisaYour application for exemption from managed isolationThank you for your application on behalf of Murray Bolton and Wati TaleiZoing.The purpose of managed isolation is to ensure people do not have COVID-19before they return to our communities and are not placed in a position wherethey could transmit the virus. Exemptions from managed isolation cantherefore only be approved for exceptional reasons.Advice from medical experts and our managed isolation and quarantine teamconfirm that Murray's particular needs can be safely met within a managedisolation facility. Please note that we can accommodate their request to remainin an Auckland managed isolation facility and as per the current framework,all returnees can access the outdoor area once they have returned a negativeday 0/1 COVID-19 test. Murray will be able to book daily exercise timeslotswith the onsite team.Having considered Murray's circumstances and all of the informationavailable, I have determined, that unfortunately, his application must bedeclined. Murray and Wati Talei are therefore required to complete 14 days inone of our managed isolation facilities.The Judicial review application[11] Mr Bolton and his partner seek to judicially review the decision. They raisefour causes of action. First error of law. They say MBIE and the Director Generalhave misconstrued clause 12 of the IQ Order. Next, they say MBIE and the DirectorGeneral failed to consider the actual grounds on which the request was based and otherrelevant considerations. In their third cause of action the applicants allege that, ifclause 12 of the IQ Order is to be interpreted as the respondents say it should be, thenit is ultra vires – the COVID-19 Public Health Response Act 2020 (the Act), isinconsistent with the Bill of Rights Act (NZBORA) and of no effect. Finally, theyplead the respondents' decision was unreasonable in view of the matters advanced bythe applicants in the application.[12] The applicants seek: a declaration the decision was unlawful; an orderpermitting the applicants to self-isolate at their home rather than at an MIQ facilitysubject to compliance with all reasonable conditions; or, in the alternative, a directionto the first and second respondents to reconsider the MIQ exemption request and totake into account the matters referred to in the application. During the course of thehearing Mr Billington QC's focus was on the direction that the respondents reconsiderthe request.Statutory framework[13] The IQ Order was made under the Act. The purpose of the Act is set out at s 4:4 PurposeThe purpose of this Act is to support a public health response to COVID-19that—(a) prevents, and limits the risk of, the outbreak or spread of COVID-19(taking into account the infectious nature and potential forasymptomatic transmission of COVID-19); and(b) avoids, mitigates, or remedies the actual or potential adverse effectsof the COVID-19 outbreak (whether direct or indirect); and(c) is co-ordinated, orderly, and proportionate; and(ca) allows social, economic, and other factors to be taken into accountwhere it is relevant to do so; and(cb) is economically sustainable and allows for the recovery of MIQFcosts; and(d) has enforceable measures, in addition to the relevant voluntarymeasures and public health and other guidance that also support thatresponse.[14] Part 2 of the Act provides for the making of orders by the responsible Minister.The Minister presently responsible for the administration of the Act is the COVID-19Response Minister, the Hon. Christopher Hipkins. Section 9 provides for when theMinister may make an order. Relevantly it includes:(ba) the Minister must be satisfied that the order does not limit or is ajustified limit on the rights and freedoms in the New Zealand Bill ofRights Act 1990; and(d) before making the order, the Minister must be satisfied that the orderis appropriate to achieve the purpose of this Act.[15] The purpose of the IQ Order is set out at clause 3. It is:3 PurposeThe purpose of this order is to prevent, and limit the risk of, the outbreak orspread of COVID-19 by—(a) setting out the requirements for people who must be isolated orquarantined in accordance with this order (for example, on arrival inNew Zealand), including risk-based provision for when isolation orquarantine ends; and(b) restricting entry to any managed isolation or quarantine facility(MIQF) to persons who are approved, authorised, or required to enter.[16] The particular clause in issue in the present case is clause 12.12 Place of isolation or quarantine(1) A person's place of isolation or quarantine means the high-risk MIQFor low-risk MIQF that is allocated to the person—(a) by the chief executive of MBIE; and(b) after a suitably qualified health practitioner determines, inaccordance with any guidelines provided by the Director-General, whether the person should be allocated a high-riskMIQF or low-risk MIQF.(2) However, a medical officer of health may instead determine for anyreason (for example, for medical evacuation) that a person's place ofisolation or quarantine is any other facility or place.(2A) In determining that a person's place of isolation or quarantine is anyother facility or place under subclause (2), the medical officer ofhealth must consider—(a) relevant individual and operational implications; and(b) whether the other facility or place is able to meet the person'sparticular physical or other needs.(3) A medical officer of health need not consider making a determinationunder subclause (2) for a person if the chief executive of MBIE—(a) consults, and considers the advice of, a suitably qualifiedhealth practitioner or of a person who is registered or licensedas an equivalent health professional overseas; and(b) determines that the person does not have particular physicalor other needs that require another type of facility or place.[17] Clause 12 can be contrasted with clause 14, under which the chief executive ofMBIE may permit a person to leave their room at MIQ in certain specifiedcircumstances or for an exceptional reason.[18] The way the various government entities approach exemptions from MIQ inpractice is set out on websites operated by MBIE and the Ministry of Health. On theMBIE website there is a section dealing with general exemptions from managedisolation, a section which deals with specific exemptions for medical reasons and asection dealing with specific exemption for exceptional circumstances. The sectionsare almost exclusively directed at exemptions under clause 14 from the need to staythe entire 14 days at an MIQ facility rather than an exemption from an MIQ facilityentirely.[19] The Ministry of Health description of MIQ in the exemptions process on itswebsite is brief. It refers to the need for exceptional circumstances, and internationalmedical evacuations and directs people who are unable to stay at MIQ because of theirmedical or physical needs to MBIE.The evidence[20] A number of the background facts are not in issue. Mr Bolton has sworn threeaffidavits. In the first he identified the relevant background to the application and setout the reasons why it was necessary for him to travel to Boston to attend the two-dayboard meeting in person. Mr Bolton's evidence about that is supported by the evidenceof Sir Ralph Norris, a very experienced and successful businessman. I accept that itis not practical to suggest that Mr Bolton should attempt to attend such a crucialtwo-day board meeting other than in person. Also, the meeting is significant andpotentially important to the New Zealand economy.[21] Mr Bolton then set out why he had not applied for a spot in MIQ. He identifiedthe lack of capacity of MIQ rooms and the uncertainty associated with the ballotingprocess, both of which are matters of public record. Mr Bolton also has experience ofMIQ from a previous business trip. His position is that at his age, 73, he is not willingto subject himself to the uncertainty associated with when he might be able to returnto New Zealand and the risks associated with MIQ (if he was able to get a place) onhis return.[22] In his first updating affidavit, Mr Bolton provided a copy of the decision of12 October 2021 and noted that Sir Ian Taylor had been granted permission to trial aself-isolation system on his return to New Zealand from a business trip.[23] In his second updating affidavit, Mr Bolton attached the decision letter of17 October 2021 and also attached further correspondence from his lawyers withMBIE's solicitors in which his lawyers had set out further steps the applicants intendedto take to reduce the risk of infection and to ensure they were monitored at home.Mr Bolton also attached press releases which confirmed the current situation ofCOVID-19 spreading in the community as opposed to from MIQ.[24] Mr Bolton also filed an affidavit from Sir Raymond Avery, a professionalpharmaceutical scientist. In Sir Raymond's opinion, the applicants have a higher riskof contracting COVID-19 in an MIQ facility than if they were self-isolating at homewith the precautions they propose. Sir Raymond also confirmed the efficacy of theJUPL monitoring solution (which is to be used by Sir Ian Taylor), and which theapplicants propose to use.[25] The respondents have filed affidavits by Mr Knipe and Mr Milne. Mr Knipeconfirmed that the Director General of Health declined to become involved in theapplication and that it was referred back through the "normal processes".[26] Mr Milne was the decision maker. It is apparent from his affidavit that therespondents regard clause 12 as being confined to consideration of the applicant'shealth needs as the only basis for granting an exemption.[27] Mr Milne noted that no medical evidence had been tendered in support of theapplication, but a limited medical assessment was carried out and regard was also hadto information Mr Bolton had previously provided in January 2021. Mr Milne wasadvised that Mr Bolton's medical needs could be met in MIQ. He rejected Mr Bolton'sconcerns regarding the risk of in-facility transmission of COVID-19 as he did notconsider that risk to be significant. Nor did it provide a basis for an exemption.Mr Milne also rejected the concerns Mr Bolton had raised concerning his age. He didnot consider that provided a basis for an exemption either. Finally, he rejected thenon-health related "concerns". He did not consider they constituted a basis for anexemption. He then issued the letter of 17 October 2021 declining the application.Submissions[28] Mr Billington submitted it is clear from both MBIE's and the Ministry ofHealth's advice to the public about exemptions on their respective websites that thegovernment and MBIE treat exemptions under clause 12 of the Order as confined tothose with medical needs. As noted, that is confirmed by Mr Milne's affidavit.[29] Mr Billington submitted that in approaching the matter that way, the decisionmaker had construed the exemption test too narrowly and had failed to undertake anyform of proportionality or balancing exercise. Properly construed, clause 12 requiredconsideration of factors and needs other than the medical needs of the applicant.[30] Mr Billington noted the brevity of the decision letter. He submitted thedecision maker erred by failing to consider whether the proposed precautions wouldadequately mitigate the further risk of community transmission of the virus. Nor didMBIE consider the economic factors raised in the application.[31] Next, Mr Billington submitted that MBIE made an error of law in that it askedthe wrong question and failed to undertake a proportionality analysis. It had also failedto take any account of relevant considerations such as the need not to unreasonablyconstrain the applicants' rights to freedom of movement, their need to avoidcontracting COVID-19 in an MIQ facility, and the broader economic considerationsidentified in the application. MBIE had failed to balance those considerations againstthe degree of risk to the community of the spread of the virus involved in theapplicants' proposal, particularly in the present circumstances prevailing in thecommunity.[32] Mr Billington submitted that the applicants' approach to the application ofclause 12 was available on the text and was most consistent with the NZBORA.[33] The respondents' position is that MBIE's delegate, Mr Milne, considered allthe relevant matters that he was required to consider in making his decision. He tookadvice from a health practitioner and considered Mr Bolton's health needs. He wasentitled to conclude Mr Bolton's health needs could be met in a MIQ facility. Next,Ms Watt submitted that Mr Milne had also considered a number of non-health relatedissues but determined they were not relevant. In short, the respondents say thatMr Milne took all mandatory relevant matters into consideration.[34] Ms Watt submitted that clause 12 involved a threshold assessment under clause12(3) before any substantive decision was required under clause 12(2). She submittedthat the applicants' argument for a broader interpretation of "needs" in clause 12beyond medical or health needs was not available.[35] Ms Watt submitted that the high threshold for unreasonableness was not met inthis case.[36] Ms Watt then addressed the matters raised by Mr Bolton to support theapplication for exemption. First, she submitted the risk of in-facility transmission ofCOVID-19 was not high. Next, while accepting Mr Bolton's age increased his risk,she submitted his vaccination status significantly reduced the risk.[37] Ms Watt then noted the various other exemptions or special cases thatMr Bolton had referred to. She noted that the object of the business pilot was to assistthe development of policy rather than to benefit the business travellers who qualifiedfor it. Next, she argued that the actual risk of permitting someone such as Mr Boltonto self-isolate could not be assessed in the absence of pilot projects. As to the benefitto the New Zealand economy, she submitted that Mr Bolton could still attend the boardmeeting and make contingency plans. In her oral submissions she suggested that ifthe board meeting was important enough, Mr Bolton could travel to it and stay at ahome overseas until he obtained a placement in MIQ.[38] Finally, Ms Watt submitted that the applicants had not established any breachof NZBORA. Their rights under s 18 were impacted but the rights were not absolute.As s 5 of NZBORA establishes, protected rights are subject to justifiable limits.Analysis[39] The difference between the parties arises from their differing approaches to thecorrect interpretation of clause 12 of the IQ Order. The applicants submit that MBIE'sdecision making powers under the clause 12 are not confined to consideration of anapplicant's medical needs. Rather, they say, a broad view of "other needs" should betaken and that MBIE is required to consider whether, in the circumstances, theapplicants' other needs would permit them to isolate or quarantine at a place other thanat an MIQ facility. In making that assessment MBIE is required to consider theapplicants' need to attend the board meeting overseas, the need to enjoy rightsconferred by the NZBORA, the need to avoid contracting COVID-19, and to balancethose needs against the degree of risk to the community of further spread if theapplication was granted. In other words, MBIE is required to undertake some form ofproportionality analysis.[40] On the other hand, the respondents say that clause 12 is health based and thatthe respondents' obligation is to consider whether the applicants' particular healthneeds can be meet by MIQ. If they can be, then no exemption is available under clause12 of the IQ Order.[41] The starting point is how clause 12 of the IQ Order is to be interpreted. It isawkwardly drafted. Clause 12(1) provides for the default position that a personarriving in New Zealand will be isolated or quarantined in either a high risk or lowrisk MIQ facility depending on the decision of a health practitioner. However, underclause 12(2) a medical officer of health may instead determine "for any reason" that aperson may isolate in any other place (which could be, as in the present case, their ownhome). In making such a determination, under clause 12(2A) the medical officer ofhealth must consider the relevant individual and operational requirements and whetherthe other facility is able to meet the person's particular physical or other needs.[42] If the clause ended at that point, the applicants' case would be relativelystraight forward. Clause 12(2) provides a very general discretion by reference to "forany reason". "Individual implications" could readily include consideration of morethan simply medical considerations. "Other needs" in clause 12(2A)(b) is general.The applicants have provided a number of good reasons and relevant material tosupport their application for an exemption and to be permitted to self-isolate at theirhome in order to meet their needs, which includes the need for Mr Bolton to attend theboard meeting, as well as the other needs identified above.[43] However, clause 12(3) then goes on to provide that the medical officer of healthneed not consider making a determination under clause 12(2) if the Chief Executiveof MBIE (in practice a delegate) consults and considers the advice of a healthpractitioner and determines that the person does not have particular physical or otherneeds that require they isolate or quarantine at another facility or place. Mr Milne saidthe purpose of clause 12(3) was to prevent the medical officer of health beingoverwhelmed with applications. While I agree with Mr Billington's point that it is notfor Mr Milne to interpret the clause, it is plainly intended to act as a filtering exercise.[44] The "need" in the "need not" phrase in clause 12(3) is an auxiliary verb. Whenthe phrase is read in context, it means that the medical officer of health would not berequired to consider an application for an alternative place for isolation and quarantineunder clause 12(2) if MBIE has determined that the applicant does not have particularphysical or other needs that require isolation or quarantine at another type of place.[45] However, clause 12(3) is a filter, rather than a threshold an applicant mustsatisfy, or a gate through which they must pass, before the medical officer of healthcan (or is entitled to) consider their application under clause 12(2). Even if MBIEdetermined that an applicant's physical or other needs did not require isolation orquarantine at another place, that would not prevent the relevant medical officer ofhealth considering such an application under clause 12(2) if for any reason he or sheconsidered it appropriate to do so. Put another way, while the wording of clause 12(3)would justify the medical officer of health not making a determination under clause12(2), it does not prevent him or her from doing so.[46] On that analysis, the principal issue that arises in the construction of clause 12is the meaning to be given to the phrase "other needs" in clause 12(3). I consider it tobe broader than just medical needs, as submitted by the respondents.[47] The phrase "other needs" in this context is referred to in clause 12(2A)(b) aswell as in clause 12(3). In considering how it is to be interpreted and also the generalinterpretation of clause 12, it is necessary to consider its text and the purposes of theIQ Order itself, and its empowering legislation.1 The purpose of the Act is to supporta public health response to COVID-19 that, inter alia, prevents and limits the risk ofspread of the virus, is proportionate, and allows social, economic and other factors tobe taken into account. The purpose of the IQ Order itself is to prevent and limit therisk of the spread of the virus. None of those purposes require the references inclause 12 to "other needs" to be read down to be solely restricted to the medical,i.e. physical or mental health, needs of the applicant. The phrase "other needs" underclause 12(2A) (b) and 12(3) is readily capable of extending to a person's need to avoidcontracting COVID-19 and their need to exercise their individual rights underNZBORA. A broad interpretation would also permit consideration of the requirementfor Mr Bolton to attend the board meeting which in turn necessarily leads toconsideration of his other needs on his return to New Zealand.[48] While clause 12(2) refers to the example of a medical evacuation as a reasonfor determining a person's place of isolation or quarantine in another facility or place,that is only one example. The phrase remains broad – it is not qualified for exampleby words such as "medical" or "emergency". The wording that follows in clause12(2A) requires consideration of individual "implications". Such implications neednot be limited to medical issues.1 Interpretation Act 1999, s 5(1).[49] Next, while I acknowledge Ms Watt's observation that the decision maker is amedical officer of health, the fact he or she has such a role is consistent with the overallpurpose of the IQ Order which is to limit the spread of COVID-19. The considerationsmay be looked at through a public health lens but that does not mean that the decisionmaker is limited to considering the individual's health needs and is not required toconsider other relevant information concerning the applicant and their circumstancesunder clause 12(2). Again, the purpose of the IQ Order is said to be to provide aresponse to COVID-19 that, inter alia, prevents and limits the risk of spread of thevirus, is proportionate, and allows social, economic and other factors to be taken intoaccount.[50] Essentially the respondents' argument is that clause 12(3) means that if MBIEreceives advice from a health practitioner that the applicant's health needs can be metin MIQ (or put another way, that they do not have any particular health needs thatcannot be met in MIQ), then MBIE does not need to take into account any furtherconsiderations and no further consideration by a medical officer of health under clause12(2) is required either.[51] I consider that clause 12(3) can be interpreted in a broader way than therespondents argue for. A more purposive interpretation of clause 12(3) would be toacknowledge there are the two separate aspects to it in subclauses (a) and (b). Clause12(3)(a) engages the requirement to consult and consider the advice of a healthpractitioner, which is clearly directed at consideration of the applicants healthrequirements, but (b) adds a further layer and requires MBIE to also consider whetherthere are particular other needs of the applicant, i.e. other than health considerations,which require isolation in another place. That gives more purpose to clause 12(3)(b)than the respondents' approach. If it was intended to restrict the consideration in theway the respondents argue for, the wording could have been "particular physical ormedical needs" as opposed to the more general "physical or other needs".[52] If the broader approach was taken and the other needs support the case forisolation or quarantining in another place, then, logically, the matter would then bereferred to a medical officer of health (as the primary decision maker under clause 12)to make the final decision under clause 12(2). As noted, the decision directing aperson to isolate or quarantine at any other place under that clause can be made "forany reason". I agree with Mr Billington's submission that it does not make sense togive such a wide discretion to the primary decision maker but then to confine the typesof applications they may be required to consider by restrictively interpreting clause12(3).[53] The respondents suggest that such an interpretation will lead to anoverwhelming number of applications for exemption. But clause 12(3) will still applyas a filter on the number of applications for exemptions from MIQ. It can reasonablybe expected that few will combine the features and other needs that have beenidentified in the present case.[54] Next, other clauses in the IQ Order are relevant. For example, clause 14 setsout the basis upon which a person may leave their place of isolation or quarantine.The considerations for an exemption under clause 14 are not restricted to considerationof the applicant's medical needs.[55] I consider that a broader approach to the interpretation of the relevant phrasesused in clause 12 of "any reason" and "other needs" is, at the least, an availableinterpretation. Given that, the phrases should be given the interpretation mostconsistent with the NZBORA if possible.[56] Section 18 of the NZBORA provides that:18 Freedom of movement(1) Everyone lawfully in New Zealand has the right to freedom ofmovement and residence in New Zealand.(2) Every New Zealand citizen has the right to enter New Zealand.(3) Everyone has the right to leave New Zealand.(4) No one who is not a New Zealand citizen and who is lawfully in NewZealand shall be required to leave New Zealand except under adecision taken on grounds prescribed by law.[57] As the full bench of this Court said in Borrowdale v Director General ofHealth:2[95] As others have notably said, the NZBORA is a "Bill of reasonableprotection for rights".3 The rights presently in issue are not absolute and "mustaccommodate the rights of others and the legitimate interests of society as awhole",4 including the wider interest in protecting public health. This isconfirmed by the express framing of the equivalent provisions of the ICCPR,discussed above. So the critical question must be what limitations on thoserights can be justified in light of the public health interests in play – that iswhat s 5 requires to be asked and demands to be answered. Section 5 thusremains central to our inquiry, and s 6 must be read subject to it. That is thecontinued effect of the R v Hansen majority decisions, which are binding onus..[97] So the relevant NZBORA question here is whether the limitations ofrights resulting from the actual exercise of the s 70(1)(f) or (m) powers werenecessary, reasonable, and proportionate.5 And that assessment depends onthe particular (public health emergency) circumstances to which the exerciseof power responds..[58] Similarly, at a high level, the issue in this case is whether the limitation of theapplicants' rights resulting from the application of the IQ Order are necessary. Thelimits to the freedom of movement by requiring isolation and quarantine may well bejustified to avoid the risk of spread of COVID-19. That is expressly recognised in theempowering statute. Section 9 of the Act confirms that in making the IQ Order theMinister must be satisfied that the Order does not limit, or is a justified limit, on therights and freedoms in the NZBORA.6[59] However, at the micro or individual level there is a difference betweenrequiring isolation in an MIQ facility and requiring isolation in a person's own home.To the extent the IQ Order can be interpreted in a way that the restrictions on the rightsare minimised, that interpretation should be adopted. For example, the objective ofthe IQ Order will be met if the decision maker can be satisfied that the needs of the2 Borrowdale v Director General of Health [2020] NZHC 2090, [2020] 3 NZLR 864.3 Paul Rishworth "Interpreting and Invalidating Enactments Under a Bill of Rights: Three Enquiriesin Comparative Perspective" in Rick Bigwood (ed) The Statute: Making and Meaning(LexisNexis, Wellington, 2004) at 277; and R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [186]per McGrath J.4 R v Hansen at [186].5 As assessed under s 5, using the proportionality test from R v Oakes [1986] 1 SCR 103, confirmedin R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [104].6 COVID-19 Public Health Response Act 2020, s 9(ba).applicant (not restricted to health needs) can be met by the applicant self-isolating athome in a way and on conditions that prevent and limit the risk of the outbreak orspread of COVID-19. If they cannot be satisfied that purpose will be met, then theapplication would properly be declined.[60] It is a matter of balancing competing considerations. In Taylor v ChiefExecutive of Dept of Corrections,7 the Court of Appeal discussed the concept ofproportionality and balancing when considering the application of s 5 of NZBORAand a justified limit on the relevant right. In particular, the Court considered whetherthe concept applied to decisions applying legislation that limited the right. In the eventthe Court adopted a balancing approach, noting that it was attracted to the view thats 5 of NZBORA required at least some form of proportionality analysis in the contextof the administrative decision that was under challenge before it.[61] For the above reasons, I consider that the phrase "other needs" as it is used inclause 12 is to be interpreted more broadly and is not restricted to just the health needsof the applicants. When considering the application for exemption MBIE was requiredto consider more than simply whether the applicants' medical and health needs couldbe met in an MIQ facility when purporting to make its decision under clause 12(3) ofthe IQ Order. It was required to consider their other needs raised by the application.Error of law[62] It is apparent from Mr Milne's affidavit that he did not take such a broad viewwhen considering Mr Bolton's application. In referring to clause 12 he refers to it as"the health exemption". Next, he says that clause 12 involved consideration ofwhether the health needs could be met within an MIQ facility.[63] The decision of 17 October 2021 declining the applications is brief. It is alsoincorrect when it says that exemptions can only be approved for "exceptional reasons".That is not the wording of clause 12. The word "exceptional" is only used in clause 14.Of itself, that could amount to an error of law sufficient to vitiate the decision. If, asthe letter suggests, the decision maker approached the matter on the basis the7 Taylor v Chief Executive of Dept of Corrections [2015] NZAR 1648 at [76]-[86]applicants had to make out an exceptional case, then that was incorrect. It was notrequired by clause 12.[64] Mr Milne's confusion is carried through into his affidavit where, at paragraph5.45, and in reference to the his determination under clause 12, he said: "The questionI need to consider when making decisions under clause 14 is whether Mr Bolton hadphysical or other needs that could not be met in a MIQF". While the reference toclause 14 may be a typographical error, it reflects Mr Milne's approach to theapplication under clause 12. He apparently brought the same consideration to theapplication under clause 12 as applied to the exceptional circumstances requirementunder clause 14. His focus was entirely on Mr Bolton's medical needs.[65] In short, by taking the above limited approach to the interpretation andapplication of clause 12, the decision maker fell into error.Failure to take into account relevant considerations[66] The other side of that same coin is that as a consequence, MBIE failed to takeinto account relevant considerations. While Mr Milne says he considered the risk ofin-facility transmission of COVID-19 and Mr Bolton's age, it is apparent that he didnot consider the applicants' proposals regarding self-isolation in detail, if at all. Thereis no reference in the decision to them, nor any consideration of them under thediscussion of clause 12 in his affidavit. He did not consider the rigorous precautionsthe applicants proposed taking and failed to consider the efficacy of those proposalsin meeting the objective of the IQ Order. Importantly, nor did Mr Milne consider theeconomic factors raised in the application. Consistent with his approach, he dismissedthe non-health related concerns as he did not consider them as constituting a basis foran exemption.[67] Next, the context of the application was important and does not appear to havebeen given consideration. The relevant circumstances that apply to the considerationof an application under clause 12 in October 2021 are quite different from thecircumstances that applied when the IQ Order was made in September 2020 and areeven different from those that applied in January 2021 when Mr Bolton last applied.At that time few New Zealanders were vaccinated, the country was pursuing anelimination strategy and there was no COVID-19 in the community.[68] That is no longer the case. The Prime Minister's more recent statements on theissue confirm that New Zealand is now in the process of phasing out the eliminationstrategy it initially followed in response to COVID-19. COVID-19 is in thecommunity. The situation in New Zealand is now quite different to what it was whenthe IQ Order was made.[69] The respondents have accepted the applicants' pleading that the government'sposition is that it is now not reasonable or necessary to exempt only those with anurgent medical need from the requirement to quarantine at an MIQ facility. As at24 October 2021, 143 people were isolating at home.[70] The respondents also accept that the government's position is that it is in theinterests of New Zealand to facilitate overseas travel by New Zealand business peopleas long as this does not create a significant risk of community transmission ofCOVID-19.[71] There is no evidence that the above matters were considered by Mr Milne.[72] The decision maker failed to take into account the above relevantconsiderations.[73] In the circumstances it is unnecessary to consider the remaining causes ofaction as the Court is satisfied the application must succeed on the above grounds.COVID-19 Public Health Response (Air Border) Order (No 2) 2020[74] During the course of the hearing reference was made to clause 26 of theCOVID-19 Public Health Response (Air Border) Order (No 2) 2020. Mr Kinslersuggested that an overriding discretion rested with the Minister under that clause. Tothe extent necessary the applicants had sought approval under that Air Border Orderin the letter of application. As at the date of the hearing no decision had beencommunicated to the applicants under that Order. In the absence of a decision thereis nothing for the Court to engage with on that matter.Result[75] The first respondent's decision of 17 October 2021 declining the applicants'application for an exemption under clause 12 of the IQ Order is set aside.[76] The respondents are directed to reconsider the request for exemption underclause 12 of the IQ Order.[77] In that reconsideration, the respondents are expressly required to consider,amongst other relevant considerations:(a) the need for Mr Bolton to attend the board meeting in Boston; and(b) the need of the applicants to enjoy rights conferred by the New ZealandBill of Rights Act 1990, including the right to freedom of movementand as citizens to enter New Zealand without unreasonable limitation;and(c) the need of the applicants to avoid the risk of contracting COVID-19 atan MIQ facility, including in view of any characteristics that may makethem especially vulnerable to COVID-19, including age;and balance those considerations against the degree of risk to the community of furtherspread of COVID-19 involved in the applicants' isolating or quarantining at a placeother than an MIQ facility taking into account:(d) the precautions the applicants may propose to take or other conditionsthat may be imposed on them; and(e) their vaccination status; and(f) the prevailing circumstances within the community at the present time.Costs[78] The applicants are to have costs on a 2B basis against the respondents.________________________________Venning J