NEW HEALTH NEW ZEALAND LTD v THE MINISTER FOR COVID-19 RESPONSE [2023] NZHC 2647

NEW HEALTH NEW ZEALAND LTD v THE MINISTER FOR COVID-19 RESPONSE [2023] NZHC 2647[21 September 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-379[2023] NZHC 2647UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court Rules 2016IN THE MATTER of COVID-19 Public Health Response(Protection Framework) Order 2021 andCOVID-19 Public Health Response (Masks)Order 2022BETWEEN NEW HEALTH NEW ZEALAND LTDApplicantAND THE MINISTER FOR COVID-19RESPONSEFirst RespondentATTORNEY-GENERALSecond RespondentHearing: 27 and 28 June 2023Appearances: C F J Reid and L M Hanson for the ApplicantK B Bell and E J Cameron for the RespondentsJudgment: 21 September 2023JUDGMENT OF COOKE JTable of ContentsPara NosPreliminary issues [6]Mr Miller's evidence [6]Challenge to repealed Order [11]Earlier adjournment application [14]Relevant background and decisions [15]The relevant powers [21]First and second grounds of review — ultra vires and mistake of fact [25]Mistake of fact as a ground of review [26]Application in the present case [32]Randomised Control Trials [37]The 2021 Order [46]The 2022 Order [54]Alternative formulation of the argument [59]Section 14 NZBORA — Freedom of expression [70]Section 11 NZBORA — Right to refuse to undergo medical treatment [84]Irrationality [96]Conclusion [104][1] The applicant is an incorporated society which describes itself as a consumer-focused health organisation with objectives to advance and protect the best interestsand health freedoms of consumers. It has previously brought proceedings challengingthe fluoridation of drinking water supplies.1 In this proceeding it challenges decisionsmade by Ministers of Health under the COVID-19 Public Health Response Act 2020(the Act) requiring the mandatory wearing of face masks in certain circumstances. Itchallenges two such orders in its amended statement of claim, the COVID-19 PublicHealth Response (Protection Framework) Order 2021 (the 2021 Order) made on30 November 2021, and the COVID-19 Public Health Response (Masks) Order 2022(the 2022 Order) made on 12 September 2022.[2] The 2021 Order introduced a series of requirements under what was known asthe "traffic light" system. That included face mask requirements. Generally thisrequired the use of face coverings on public transport, essential retail businesses,1 New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR948.public facilities operated by central and local government, and healthcare services(subject to certain exemptions). The 2022 Order removed all the face maskrequirements except for certain people in certain health service premises. In effect itonly required face masks to be worn to visitors to health service premises, andexcluded the employees of those places and the patients/residents. Subsequent to thehearing of this application the 2022 Order has been revoked. There are now no facemask requirements in place.[3] The applicant advances six grounds of judicial review in its amended statementof claim:(a) Ultra vires — that the Orders were unlawful "because face coveringsare largely ineffective at contributing to preventing or limiting the riskof the outbreak or spread of COVID-19".(b) Mistake of fact — that the relevant Ministers were "labouring under amaterial mistake of fact, namely that face coverings are an effectivemeasure to contribute to preventing or limiting the risk of the outbreakor spread of COVID-19".(c) Breach of s 11 of the New Zealand Bill of Rights Act 1990 (NZBORA)— that the decisions infringed the right to refuse to undergo a medicaltreatment.(d) Breach of s 14 of NZBORA — that the decisions breached the right offreedom of expression.(e) Breach of s 8 NZBORA — that the decisions breached the right to life.(f) Irrationality — that the Orders were irrational "as they lacked efficacyof purpose and the reasoned decision-making necessary for validity".It seeks declarations that the two Orders are invalid.[4] The applicant has filed extensive expert evidence in support of the claims. Theevidence is from: Associate Professor Byram Bridle — an Associate Professor of viralimmunology of the University of Guelph in Ontario Canada; Mr Tyson Gabriel — anindustrial hygienist from the United States of America; Mr Ian Miller — a professionalwriter from the United States of America; and (in reply) Doctor Thomas Jefferson —a public health physician from Italy. The applicant's chairman has also filed anaffidavit.[5] In response the respondents have filed affidavits from: the two Ministers whomade the decision — the Honourable Christopher Hipkins and the Honourable AyeshaVerrall; the two relevant Director-Generals of Health — Sir Ashley Bloomfield andDr Diana Sarfati; the Ministry of Health's Chief Science Advisor — Dr Ian Town;Mr Piers Greenbrook-Held — the Principal Modeler in the Department of PrimeMinister and Cabinet; Ms Lisa Rapley — the Senior Advisor of the Ministry in relationto web content; and expert evidence from Professor Michael Baker and AssociateProfessor Amanda Kvalsvig.Preliminary issues[6] There are a number of preliminary issues.Mr Miller's evidence[7] The respondents formally objected to the evidence filed by the applicants fromMr Ian Miller. The applicant relied on Mr Miller's evidence as expert evidence. Iheard the objection at the commencement of the hearing and concluded that hisevidence was inadmissible. I accepted that his evidence did not meet the requirementsfor expert evidence under s 25 of the Evidence Act 2006 or the High Court Rules 2016.I indicated I would provide my reasons in the substantive judgment.[8] Mr Miller has a Bachelor of Arts in Cinematic Arts from the University ofSouthern California. He describes himself as a professional writer. His four pageaffidavit attached as an exhibit his book published in 2022 entitled "Unmasked: TheGlobal Failure of COVID Mask Mandates".2 I understood that it was the book itselfthat was put forward as the expert evidence.[9] Mr Miller has no training or experience to enable him to provide expertevidence to the Court on the effectiveness or otherwise of masks or mask mandates inrelation to COVID-19. The only relevant experience he describes is the research heundertook for the purposes of his book. In describing his suggested expertise he saysthat his work was used by an advisor to President Trump and that it was presented tothe President in meetings and COVID-19 briefings. He also says that his work hasfeatured on national news broadcasts in the United States and has been referenced bymajor politicians such as the Governor of Florida.[10] These activities do not mean that Mr Miller has "specialised knowledge or skillbased on training, study, or experience" as is required by the definition of an expertand expert evidence in s 4 of the Evidence Act. Moreover the presentation of a bookas expert evidence does not address the requirements for such evidence in cl 3 of theCode of Conduct for Expert Witnesses in sch 4 of the High Court Rules. That isbecause it does not address appropriately formulated questions of expert opinionarising from issues before the Court. It did not state the issues within the witnessesexpertise that he was asked to address, the literature or other material he has taken intoaccount to form the opinions in answer to those questions, or the facts and assumptionson which the expert opinions are based as required by the Code. These requirementsare important as they are directed at ensuring that such evidence is focused on specificquestions arising from the proceedings to which properly qualified expert opinion isdirected. A book is not expert evidence.Challenge to repealed Order[11] During the course of the hearing I also raised whether the applicant's challengeto the 2021 Order should be addressed given that the 2021 Order had been revoked,and replaced by the 2022 Order. I questioned whether the challenge to the revokedOrder was necessary, or appropriate, and whether the challenge should be consideredby reference to the 2022 Order only. The 2021 Order was in effect when the2 Post Hill Press, New York, Nashville, 2022.proceedings were first commenced, but had been replaced by the 2022 Order,following which the applicant had amended its statement of claim. There wereprevious orders in the nature of mask mandates in existence before the 2021 Orderwhich were not challenged in the proceedings.[12] Counsel for the respondents indicated that they did not intend to take any pointarising from this and was content to address all aspect of the challenge on their merits.That is an understandable stance. It is nevertheless important for the Court to focuson the decisions of practical significance, particularly to ensure that judicial reviewremains a simple, untechnical and prompt procedure. I also do not consider this caseis in the same category as other COVID-19 challenges where declaratory relief inrelation to expired unlawful decisions had importance in vindicating the rights of thoseadversely affected by them.3 But I accept that, here the two challenged decisions wereinherently interrelated. For this reason I will address the applicant's challenges byreference to both the 2021 and 2022 decisions.[13] Since the hearing, and while judgment was awaited, the 2022 Order has beenrevoked. For that reason the challenge is now moot. But given that the matters havebeen fully argued I will nevertheless address them.Earlier adjournment application[14] For completeness I also note that, leading up to the hearing of the challengethe applicant made a late application for discovery by the respondent, and also a relatedapplication to adjourn the fixture. I declined the applications for the reasons in myminute of 26 May.4 In terms of the adjournment application, the applicant's point thatthe decisions were under review and could be changed did not seem to me to be areason to adjourn the proceeding. Rather judicial review challenges of this kind shouldbe determined as soon as practicable.3 Borrowdale v Director-General of Health [2020] NZHC 2090, [2020] 2 NZLR 864 at [288]–[291]; Grounded Kiwis Group Inc v Minister of Health [2022] NZHC 832, [2022] 3 NZLR 19 at[430]–[432].4 New Health New Zealand Inc v South Taranaki District Council HC Wellington CIV-2022-485-379, 26 May 2023.Relevant background and decisions[15] I do not intend to describe the background to the relevant decisions that arechallenged in any detail. It would unnecessarily lengthen this judgment to do so.[16] The measures taken to address the impacts of COVID-19 were extensive andnow subject to a number of decisions of the Court over the years. New Zealand's firstresponses to the pandemic in early 2020 involved what was called an eliminationstrategy, and involved lockdowns imposed under the Health Act 1956. Thosemeasures were addressed by a full Court of the High Court in Borrowdale v Director-General of Health.5 Shortly before the hearing of that challenge, new legislationcreating powers to address COVID-19 was enacted. The Act received Royal assenton 13 May 2020. It has been subsequently amended a number of times with changingrequirements. A requirement for face masks was first introduced under this legislationon 30 August 2020 with the requirement that they be used on public transport and onaeroplanes at what was then called alert level 2.6[17] Circumstances changed over the course of the following year. They includedthe growing availability of vaccines and also the emergence of variants. The firstvaccine mandates were introduced under the Act later in 2021, and the first challengesto those mandates were then heard.7 Subsequent High Court decisions questionedwhether the Act should specifically authorise such vaccine mandates.8 The legislationwas subsequently amended.9 In late 2021 the prominent variant was the Delta variantand October 2021 the Government moved to what was called a minimisation andprotection strategy.[18] It was in the context of the Government's new strategy that the 2021 Order waspromulgated as a consequence of a decision of Minister Hipkins. It came into effecton 2 December 2021 and implemented what was known as the traffic light system.5 Borrowdale v Director-General of Health, above n 3.6 COVID-19 Public Health Response (Alert Level Requirements) Order 2020.7 GF v Minister for COVID-19 Response [2021] NZHC 2526, [2022] 2 NZLR 1, was heard inSeptember 2021.8 Four Aviation Security Service Employees v Minister of COVID-19 Response [2021] NZHC 3012,[2022] 2 NZLR 25, at [129]; Four Midwives v Minister for COVID-19 Response [2021] NZHC3064 at [74]–[75].9 COVID-19 Response (Vaccinations) Legislation Act 2021.This included a number of measures including vaccine certificate requirements,passenger limits, restrictions on gatherings and business operations, physicaldistancing, QR codes and associated record keeping systems, the ability to imposelockdowns, and the challenged face mask requirements. The face mask requirementscarried over requirements from the earlier alert system.[19] In late January 2022 face mask requirements were then tightened — forexample people in workplaces captured by vaccine requirements were required towear a medical grade mask. At that stage the more contagious Omicron variant wasemerging.[20] At the end of June 2022 the Government then eased the COVID-19requirements under a new strategy. Under that strategy the 2021 Order was revokedand the new 2022 Order was implemented by Minister Verrall. The face maskrequirement was limited to health facilities such as rest-homes and medical centres.As indicated even these requirements have now been removed by decisions madefollowing the hearing.The relevant powers[21] The Act has been amended over time as the pandemic, and the response to ithas evolved. At the time of both the 2021 and 2022 Orders the empowering provisionremained in the following relevant terms:11 Orders that can be made under this Act(1) The Minister or the Director-General may, in accordance with section9 or 10 (as the case may be), make an order under this section for 1 ormore of the following purposes:(a) to require persons to refrain from taking any specified actionsor to take any specified actions, or comply with any specifiedmeasures, so as to contribute or be likely to contribute to eitheror both of the following:(i) preventing, containing, reducing, controlling, managing,eliminating, or limiting the risk of the outbreak or spreadof COVID-19:(ii) avoiding, mitigating, or remedying the actual or potentialadverse public health effects of the outbreak of COVID-19 (whether direct or indirect):(b) by way of example under paragraph (a), requiring persons to doany of the following:(i) stay in any specified area, place, or premises or refrainfrom going to any specified area, place, or premises(including in specified circumstances or unless incompliance with specified measures):(ia) permit entry to any specified areas, places, or premisesonly in specified circumstances or in compliance withspecified measures:(ii) refrain from associating with specified persons:(iii) stay physically distant from any persons in any specifiedway:(iv) refrain from travelling to or from any specified area orplace, or refrain from travelling to or from any specifiedarea or place in specified circumstances or unless incompliance with specified measures (for example,refrain from leaving an area unless the person has aCOVID-19 vaccination certificate):(v) refrain from carrying out specified activities (forexample, business activities involving close personalcontact) or carry out specified activities 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 specifiedkind, in any specified place, or in specifiedcircumstances:(viii) report for and undergo a medical examination or testingof any kind, and at any place or time, specified and inany specified way or specified circumstances:(ix) provide, in specified circumstances or in any specifiedway, any information necessary for the purpose ofcontact tracing:(x) satisfy any specified criteria before entering NewZealand from a place outside New Zealand, which mayinclude being registered to enter an MIQF on arrival inNew Zealand:[22] As a consequence of amendments made to the Act on 26 November 2022 bythe COVID-19 Public Health Response (Extension of Act and Reduction of Powers)Amendment Act 2022 s 11 was replaced with a section that allowed more particularorders, including an order concerning the wearing of face masks under s 11(3). Thatwas not in force at the time that either of the challenged Orders were made, however.This further reduces any precedent value this judgment may have.[23] In addition, at the time of both decisions the Act had the following purpose: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 effects ofthe 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 MIQF costs;and(d) has enforceable measures, in addition to the relevant voluntarymeasures and public health and other guidance that also support thatresponse.[24] There were also pre-requisites that are relevant to the making of Orders in s 11set out in the Act, but they are not raised as part of this challenge.First and second grounds of review — ultra vires and mistake of fact[25] The applicant addressed its grounds of review based on ultra vires and mistakeof fact together.Mistake of fact as a ground of review[26] I first refer to the overall way in which the applicant presented its case. Itschallenge was based on the proposition that face masks have no material benefit inpreventing the spread of COVID-19 and have health disadvantages. Its argumentswere based on the opinion evidence from the applicant's witnesses and other evidencewhich was addressed at some length by counsel. The first 71 pages of the applicant'swritten submissions focussed on that evidence, and the reasons why face masks weresaid to be both ineffective and potentially harmful. The grounds of review were thenaddressed relatively briefly. For example the ultra vires/mistake of fact ground wasaddressed over only one page in the written submissions.[27] No discernible argument was advanced on the ultra vires ground. Rather thewritten submissions, and Ms Hansen's oral submissions, focused on themedical/scientific evidence and the alleged mistake of fact. I understood that thealleged mistake was as pleaded — that the decision-makers thought that face coveringswere an effective measure to contributing, preventing, or limiting the spread ofCOVID-19 when this was not true.[28] The applicant did not refer me to any authorities concerning mistake of fact asa ground of judicial review in support of these arguments. The respondent referred toauthorities, including Woods v Legal Complaints Review Officer where Kós J said:10Error of fact is a problematic concept in the spectrum of judicial reviewgrounds. Factual challenge is more normally the subject of appellate ratherthan review jurisdiction. Where review is concerned, the courts take acircumspect view of factual error. But the courts will intervene where factualerror undermines jurisdiction, where the factual inquiry was clearlyinadequate or otherwise the product of an unfair process or where a finding offact is utterly unsupportable on the evidence.[29] Mistake of fact can be a ground to successfully challenge a discretionarydecision by way of judicial review. The English and Welsh Court of Appeal outlineda test for mistake of fact as a ground of appeal in E v Secretary of State for HomeDepartment.11 That approach has been applied in New Zealand.12 In QueenstownLakes District Licencing Agency Inspector v Turnbull Group Ltd Whata J adapted thisapproach when formulating a test for mistake of fact as a ground of appeal on a10 Woods v Legal Complaints Review Officer [2013] NZHC 674 at [39] (footnote excluded). I donot consider the concept of jurisdictional error to be of assistance, however – see Philip A JosephJoseph on Constitutional and Administrative Law (5th ed, Thompson Reuters, 2021) at [23.5.3].11 E v Secretary of State for Home Department [2004] 2 WLR 1351,[2004] EWCA Civ 49, [2004]1 QB 1044 at [61]–[66].12 See Zafirov v Minister for Immigration [2009] NZAR 457 at [79]–[80]; Thorndon Quay CollectiveInc v Wellington City Council [2022] NZHC 2356 at [148]–[150].question of law.13 As a ground of judicial review I consider that the following furtheradjustment may be consistent with the simple, untechnical and prompt approach tojudicial review in New Zealand:(a) There must be a mistake in relation to a matter of established fact.Judicial review is not an appropriate procedure for addressing factualcontests, and the mistake of fact ground of review does not arise simplybecause the decision-maker could have reached a different conclusionon the facts.(b) The mistake must be of sufficient importance to lead the Court toconclude that there has been a failure by the decision-maker to exercisethe discretionary power in a lawful way.[30] When applying the second of those steps considering other grounds of judicialreview by analogy may be of assistance. The distinction between error of law anderror of fact " is the sole dichotomy to survive the purge on formalist legal methodduring the closing decades of the last century" and its existence is "unstable".14 Indeedit is not unusual for the Court to describe the Court's intervention when there has beena mistake of fact by reference to other grounds of review. In Ririnui v LandcorpFarming Ltd, for example, the Supreme Court upheld a judicial review challengebecause the relevant decision-making Ministers had understood that a Treaty claimhad been settled when it had not. Whilst the ground of review was not described as"mistake of fact" it was this factual error led the Court to conclude there had been anunlawful decision.15[31] Not all mistakes of fact will lead to the discretionary power being improperlyexercised. The mistake must effect the legality of the decision. So mistake of fact inrelation to a mandatory relevant consideration might be of sufficient importance towarrant the Court's intervention, whereas a mistake in relation to a permissive13 Queenstown Lakes District Licencing Agency Inspector v Turnbull Group Ltd [2011] NZAR 554at [35]–[36]. See also Zhao v The Legal Complaints Review Officer [2012] NZHC 3247 at [66]–[83].14 Philip A Joseph "Administrative Law Retrospective" [2023] 30 NZULR 387 at 406–407.15 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [93]–[95] and [98]–[99].consideration might not. In the end the mistake of fact must be sufficiently significantto warrant the intervention of the Court in its role of supervising the legality ofdiscretionary decision-making.Application in the present case[32] The fundamental difficulty with the applicant's challenge is that theeffectiveness of face coverings as a measure to address the risk of the spread ofCOVID-19 is a matter of medical or scientific opinion rather than a matter of fact. Itis not always easy to identify the point where matters of opinion become matters offact. There is a continuum where, at some point, one becomes the other. Where thatpoint is reached is itself a matter of opinion. An applicant cannot establish this groundof review simply by establishing that alternative opinions, or that an alternative viewof the facts is available. Here the Act itself expressly recognises that the decisionshere are to be based on expert opinion as s 9 obliges the Minister to seek the advice ofthe Director-General of Health on such matters.[33] During the pandemic experts in particular fields, such as epidemiology, havebeen required to form views, and advise decision-makers, on measures to addressCOVID-19. Whilst consensus has formed on many issues it is inevitable that therewill be differences of opinion, sometimes strongly expressed. Disagreement canbecome more firmly felt when measures are imposed that restrict individual rights.That has been particularly evident with vaccine mandates, but this is not limited to thatissue. This case involves another contest of this kind. The evidence filed by theapplicant, and the other sources it has relied upon, show that there is a body of expertopinion that disagrees with the proposition that face coverings assist in reducing therisk of spread of COVID-19. But equally there is a body of expert opinion that facecoverings do so assist. And it is this body of expert opinion, including from theNew Zealand Director-Generals of Health, that have been relied upon by theMinisters, as is contemplated by s 9(1)(a) of the Act. The fact that the applicantdisagrees with these views, and is able to present alternative opinions to the Court,does not establish a ground of judicial review.[34] What the applicant sought to do was persuade the Court that its experts wereright, and that the Ministers, the Director-Generals of Health, and the experts theyrelied on were wrong. By itself that would be difficult task, especially given theprocedural limits of judicial review. But for this ground of review the applicant wouldneed to go further to the point of establishing that their experts' opinions were mattersof established fact.16 It has not done so.[35] I should briefly explain why this approach might be seen to be different fromother COVID-19 related judgments. The Court has been required to reach conclusionson matters of disputed medical scientific opinion in some of the previous COVID-19judicial review challenges. But that has been required because a right under theNZBORA has been engaged — the right to refuse medical treatment under s 11. Soin the vaccine mandate cases the Court was required to address whether the limitationof that right arising from the vaccine mandates was demonstrably justified inaccordance with s 5 of the NZBORA.17 In the applicant's previous judicial reviewchallenges to the fluoridation to drinking water supplies a similar issue arose.18 So theCourt was required, as a matter of law, to address the question of disputed medicalopinion to assess whether the measures were demonstrably justified. Even in thatcontext, however, the Court has noted the difficulty involved in it reaching conclusionson disputed matters of medical opinion.19[36] Here the applicant argues that s 14 is engaged. It also raises other rights underthe NZBORA. I address those particular grounds of challenge below. But whenaddressing the applicant's challenge based on mistake of fact the fundamentaldifficulty referred to above arises. A difference of opinion is not a mistake of fact.16 In Queenstown Lakes District Licencing Inspector v Turnbull Group Ltd, above n 13, Whata Jreferred to this as showing that the "error is one of verifiable or established fact" at [35(b)].17 See Four Aviation Security Service Employees v Minister of COVID-19 Response, above n 8;Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291, (2022) 19 NZELR 125;NZDSOS Inc v Minister for COVID-19 Response [2022] NZHC 716, (2022) NZELR 833.18 New Health New Zealand Inc v South Taranaki District Council, above n 1.19 NZDSOS Inc v Minister for COVID-19 Response, above n 17, at [86]–[91]; New HealthNew Zealand Inc v South Taranaki District Council, above n 1, at [121]–[122].Randomised Control Trials[37] I illustrate the point by addressing one of the key contests referred to in theevidence and submissions.[38] One of the difficulties in addressing whether face coverings are an effectivemeasure are that it is usually necessary to undertake randomised control trials (RCTs)to establish whether a particular intervention can be proved to be effective. These aretrials in which the particular measure — here face coverings — is used in a controlledtrial environment to ascertain whether the measure is effective. This involvesparticipants in the trial being exposed to COVID-19 where some had the protection offace masks and others did not. The results of the testing can then ascertain whetherface masks are effective. RCTs are a superior form of evidence for ascertaining theeffectiveness of particular measures. That was the thrust of the evidence of Mr Gabrielfiled by the applicant, and I do not understand that to be disputed, although therespondents' experts point out that it is not the only evidence.[39] There is a practical difficulty in undertaking RCTs in this context, however.There has not been time to undertake substantial testing of this kind before measureshave to be taken. There are also ethical considerations involved in exposingparticipants in the testing to what can be a deadly illness.[40] There is some evidence of this quality however. Not all of it involves RCTswith COVID-19, but have involved other respiratory viral diseases. There is aparticular report called the Cochrane Review that addresses this evidence.20 Cochraneis a not for profit organisation in the health area based in the United Kingdom. Theconclusions of the Cochrane Review are based only on RCTs. The overall conclusionof this Review included the following:21There is uncertainty about the effects of face masks. The low to moderatecertainty of evidence means our confidence in the effect estimate is limited,and that the true effect may be different from the observed estimate of theeffect. The pooled results of RCTs did not show a clear reduction in respiratoryviral infection with the use of medical/surgical masks. There were no clear20 Tom Jefferson, Liz Dooley, Eliana Ferroni et al Physical interventions to interrupt or reduce thespread of respiratory viruses (Cochrane Database of Systematic Reviews 2023, Issue 1).21 As at 30 January 2023.differences between the use of medical/surgical masks compared with N95/P2respirators in healthcare workers when used in routine care to reducerespiratory viral infection. Hand hygiene is likely to modestly reduce theburden of respiratory illness, and although this effect was also present whenILI and laboratory‐confirmed influenza were analysed separately, it was notfound to be a significant difference for the latter two outcomes. Harmsassociated with physical interventions were under‐investigated.There is a need for large, well‐designed RCTs addressing the effectiveness ofmany of these interventions in multiple settings and populations, as well asthe impact of adherence on effectiveness, especially in those most at risk ofARIs.[41] There are various authors of this particular Cochrane Review. The lead author,Dr Jefferson provided evidence in reply. He described the conclusions of the Reviewa little differently in the following way: in terms of the effects of wearing medical or surgical masks, the resultsshow that compared to no masks, the 12 trials in the review found that wearingmasks in the community probably makes little or no difference to the outcomeof influenza-like of covid-19 like illness. Equally masks showed no effect onlaboratory-confirmed influenza or SARS-COV-2 outcomes. The five furtherincluded trials showed no difference between one type of mask over the other.In addition, the differences between the trials' results that identified the agentand those that did not are low, indicating the all give much the same result -that is the nature of the agent does not affect the outcome.[42] RCTs are not the only form of evidence, however. There are other forms ofstudy, such as observational studies that have addressed the efficacy of face masks.The respondents filed evidence from Associate Professor Kvalsvig andProfessor Baker of the University of Otago. They provided a report on the availableevidence more broadly, dated 20 January 2023.22 That report concludes that facemasks are effective in reducing transmission of COVID-19. It says:23• The evidence we have examined indicates that there is a coherent andconsistent body of high quality evidence to support community maskmandates as an effective contribution to measures to prevent thetransmission and spread of respiratory viruses including Covid-19.• As shown in this review, the totality of evidence across multiple fields andstudies constitutes high-quality evidence in support. The evidence doesnot and should not rely on any single study.22 Amanda Kvalsvig, Marnie Prickett, Dr Lucy Telfar Barnard, and Michael Baker The role of masksand mask mandates in protecting public health during a pandemic: A summary of the scientificevidence (Health, Environment & Infection Research Unit, Department of Public Health,University of Otago, 2023).23 At 8.• Instead, our review shows strong and consistent evidence in favour ofpopulation masking, with additional effectiveness when masking ismandated in high-risk public settings. The evidence is consistent withpublic health principles and the evidence that we have reviewed showscoherence across multiple fields of investigation including virology,physics, engineering, and epidemiology.• We do not observe the same coherence in the pleadings and associatedevidence provided by the applicant.[43] Professor Baker's evidence is of interest because he has changed his view overthe course of the pandemic. He said:Early in 2020 (and as set out in the statement of claim) I publicly commentedin respect of face masks that "they're not very effective. After all the virus canalso infect you via your eyes. It basically likes to land on mucous membranesand then from your eyes go down into your nose anyway. So I think peopleshould not bother with face masks." This is no longer my view. Over thecourse of the pandemic the scientific knowledge around both transmission andthe use of face coverings as a public health strategy and control measure hasevolved and the effectiveness of face masks as a prevention measure is nowwidely accepted by the scientific community. My view of the public healthbenefit of face masks has also changed and aligns with that evidence which isset out in the report [44] A further report dated 20 April 2023 was also provided by Associate ProfessorKvalsvig and Professor Baker focused on the Cochrane Review.24 This was providedin response to the applicant's focus on this Review in its amended statement of claim.It was critical of some aspects of the Cochrane Review and the way its results havebeen presented. It was this evidence that led to Dr Jefferson's evidence in reply.[45] Were this an ordinary civil proceeding such a contest of expert evidence wouldbe addressed by a requirement for expert conferral, joint reports, and cross-examination. But this is not an ordinary civil proceeding, it is an application forjudicial review. The best the applicant can do is establish that there are experts whohold contrary opinions to the experts that have been relied upon by the decision-makers. That does not establish mistake of fact as a ground of judicial review.24 Amanda Kvalsvig and Michael Baker Commentary and critique of the 2023 Cochrane Review'Physical Interventions to interrupt or reduce the spread of respiratory viruses' by Jefferson et al(Health, Environment & Infection Research Unit, Department of Public Health, University ofOtago, 2023).The 2021 Order[46] It is appropriate to address the alleged error of fact more generally in light ofthe particular decisions that are challenged. Both Ministers have given evidencedescribing the approach that they adopted and a number of advice papers wereformulated in the decision-making processes. Both Director-Generals of Health havealso provided evidence and described the material taken into account and the adviceprovided to the Ministers.[47] Dr Bloomfield explains the background to the development of the views on theuse of face masks during the pandemic in light of the evolving evidence that COVID-19 was transmitted by aerosol transmission. At the outset of the pandemic responseface mask requirements were not part of the measures imposed. For example, theMinistry conducted a review in 2020 and found there were no clinical trials on theefficacy of face masks as a protective measure. It noted the World Health Organisation(the WHO) had found there was insufficient evidence to make a recommendation foror against their use.[48] Evidence continued to become available over the course of the pandemic,however. In June 2020 the WHO changed its advice.25 It now included the following:However, taking into account the available studies evaluating pre- andasymptomatic transmission, a growing compendium of observationalevidence on the use of masks by the general public in several countries,individual values and preferences, as well as the difficulty of physicaldistancing in many contexts, WHO has updated its guidance to advise that toprevent COVID-19 transmission effectively in areas of communitytransmission, governments should encourage the general public to wear masksin specific situations and settings as part of a comprehensive approach tosuppress SARS-CoV-2 transmission [49] Amongst the scientific literature relied upon by the WHO in providing thisadvice was the Cochrane Review. This information was then part of the evidence thatwas relied upon when the first face mask requirement was imposed on public transportand planes under alert level 2 was decided upon in August 2020. The advice regularly25 World Health Organization Advice on the use of masks in the context of COVID-19 (Interimguidance, 5 June 2020).provided by the WHO from that time by way of updates remained consistent with theabove advice.[50] The first challenged decision was made in November 2021. As at thebeginning of August 2021 there were no cases of COVID-19 within New Zealand, andthe vaccination rates were high. But New Zealand suffered its first Delta outbreaklater in August. Lockdowns were originally imposed in response, but followingdecisions made by the Cabinet at the end of September the Government decided tomove to what was called the traffic light framework. Advice from a number of sourceswas received in deciding upon the measures that would be imposed under thisframework. Minister Hipkins describes the process under which the traffic lightsystem, which included the requirement for face masks, was agreed upon by Cabinet.The decisions were not focused on face masks as the new framework involved a rangeof measures to be applied across New Zealand at the various traffic light settings —red, orange or green. It was agreed that face covering requirements would alterdepending on the settings applicable in each geographic area. At green face coveringswere mandatory only on flights, and at orange and red they are mandatory on flights,public transport, taxis, retail and public venues. There had been ongoing advicethroughout the Government's COVID-19 response, and the face covering elementswere carried over from the previous decisions which required masks to be worn. Thisincluded advice from Dr Bloomfield on 13 September 2021 concerning face coveringrequirements under the previous framework.[51] I accept that the Minister considered that the face mask requirements wereappropriate as part of the measures covered by the 2021 Order when he made hisdecision on 30 November to introduce the Order, and that he considered that theycontributed to inhibiting the transmission of COVID-19. He had received detailedadvice from the Director-General over a considerable period, including the adviceunder the previous framework that it was appropriate to require face mask coveringson public transport and domestic flights. Given that advice, and the expert viewsprovided, there is no basis for a challenge based on mistake of fact. I also accept therespondents' submission that the views of the WHO beginning from June 2020 are acomplete answer to this ground of review.[52] I also note that the advice provided to the Minister was balanced. For examplethe September 2020 report from Dr Bloomfield had advised that there was "someevidence" that the use of masks as part of a comprehensive package of measures couldlimit the spread of COVID-19, but the use of masks alone was insufficient. It alsoidentified disadvantages of requiring the wearing of masks. The Minister thendescribed his own evaluation of the position in his evidence. So the uncertainties thatthe applicant relies upon in its evidence were recognised in the decision-makingprocess. This confirms there can be no real basis for a challenge based on mistake offact.[53] I note that there was no formal decision paper leading to the decision made bythe Minister to impose the 2021 Order. There is a paper to Cabinet from the Ministerin support of the decision to introduce the traffic light framework, but no formaldecision paper for the making of the order itself. The Minister describes the processof establishing the content of the 2021 Order as an "iterative" one involving officialsand advisers. It is a very detailed order running to 58 pages addressing manyrequirements within geographic boundaries. Neither was there any formal advice fromthe Director-General with respect to the 2021 Order provided in evidence, andDr Bloomfield does not suggest there was any such formal advice in his affidavit. TheMinister says, however, that "the order was accompanied by formal Director-Generaladvice". The position is accordingly not entirely clear from the evidence. But s 9(2)provides that nothing in s 9 requires the Minister to receive specific advice from theDirector-General about the content of a proposed order, so nothing turns on this.The 2022 Order[54] The second challenged decision was made by Minister Verrall. She took overfrom Minister Hipkins as the Minister for COVID-19 Response on 14 June 2022. Inaddition Dr Diana Sarfati took over from Dr Bloomfield as the Director-General ofHealth from 29 July 2022.[55] Following a meeting with officials on 8 August Minister Verrall requested abriefing from the Ministry on the value of ongoing mask requirements. Later inAugust she received that briefing and further advice from Dr Sarfati to the effect thatmask requirements for public transport and in healthcare settings should be retained,but to remove it in other settings. This briefing advised that "the evidence that maskwearing decreases the rate of transmission of COVID-19 (and other airbornerespiratory viruses) is substantial". Minister Verrall explains in her affidavit, howeverthat she decided against maintaining requirements for public transport, but agreed thatthey should be retained in healthcare settings. This led to the promulgation of the2022 Order.[56] In her evidence the Minister describes the decision as an appropriate step-downoption which was commensurate with the risk profile in her evidence. She indicatesthat the recommendation for healthcare settings was accepted due to the unique natureof those settings. She explains that vulnerable people at greater risk of severeconsequences of COVID-19 meant there was value in minimising the infection risk asfar as possible, and to give those people greater security in accessing healthcare.Dr Sarfati says in her evidence that although the Minister departed from the fullrecommendation in making the challenged decision, that the Minister's views wereconsistent with the other advice that the effectiveness of mask mandates waned overtime.[57] Once again there is no basis for judicial review based on mistake of fact. Theadvice provided to the Minister was consistent with the requirements of the Act, andtook into account the evidence that had developed over time about the effectivenessof masks and mask requirements.[58] It is also to be noted that the Minister was discerning in forming her views.She did not accept the advice to continue with a mask requirement on public transport,for example. Later, in the context of reviews, she did not accept the recommendationin March 2023 that the mask requirement in the healthcare sector be removed. Thisfurther reflects an understanding in the decision-making process that the questionsrequired balancing, and an overall evaluation in the circumstances.Alternative formulation of the argument[59] During oral submissions an alternative formulation of the applicant's case wasadvanced by Mr Reid. Indeed he commenced the case with this reformulation andwas followed by Mr Hansen who largely advanced the case as pleaded.[60] Mr Reid argued that the focus of the challenge was not mistake of fact, butrelated more on the adequacy of the advice that had been given to the Ministers. Herelied on the principles explained by the Court of Appeal in Air Nelson Ltd v Ministerof Transport where the Court held that there are circumstances that require Ministersmaking decisions to have particular matters drawn to their attention by way of a fair,accurate and adequate report before a legitimate decision could be said to have beenmade.26 He argued that this had not occurred.[61] I accept that Air Nelson is a well-recognised situation where judicial reviewhas been granted. That is primarily because there will be circumstances whereconsiderations must be taken into account by the decision-maker. In Air Nelson theCourt of Appeal referred to CREEDNZ Inc v Governor-General which is the leadingauthority on mandatory relevant considerations, although the Carltona principle wasalso alive in that case.27[62] There are difficulties with this reformulation of the applicant's case, however.First it is not what the applicant pleaded, or advanced in its written submissions. Inparticular the considerations that were allegedly not taken into account were notidentified so that the respondents had an opportunity to respond to this contention.The respondents did not object to this line of argument when it was advanced — again,as I understand it, the respondents did not want to be seen to be taking proceduralobjections but rather wished to respond to the challenge on its merits. But it is difficultfor the Court, and potentially procedurally unfair, to address an argument that was afailure to take into account mandatory relevant considerations in the advice toMinisters when that has not been squarely pleaded or otherwise identified.26 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [41]–[56].27 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA); Carltona Ltd v Commissioners ofWorks [1943] 2 All ER 560 (CA).[63] The second, and related, concern is that the considerations not taken intoaccount by the Ministers were not clearly identified. Mr Reid argued that theapplicant's case was not so much based on a mistake of fact concerning the efficacyof face masks, but rather a failure to put to the Minister particular evidence relevant toefficacy. In oral submissions these appear to have been the following matters:(a) The Cochrane Review, and the conclusions that it had reached.(b) The advice that face masks have potential adverse effects, including assummarised by the WHO in its reports.[64] I do not accept that it can be established on the evidence that these matters werenot taken into account. I accept that the Cochrane Review itself was not placed beforeeither Minister. But the fact that there was uncertainty about the efficacy of face masksgiven the available scientific evidence was clearly part of the advice. This, insubstance, would be the relevant consideration, rather than particular pieces ofevidence relating to it. As indicated above the Cochrane Review was one of the papersthat was referred to in the WHO advice which was relied on in the decision-makingprocess. For example, in the summary of the evidence provided by Dr Bloomfield tothe Minister in September 2020, when the face mask requirements were being firstconcentrated on, the WHO advice was specifically referred to. The advice papers didnot refer to all the underlying scientific papers that had been used as part of theformulation of the advice to the Ministers. That would be an entirely unrealisticexpectation. In terms of the summary principles from Air Nelson all that could berequired was a fair, accurate and adequate report. This does not require all evidentialmaterial to be identified and supplied.[65] Equally, in relation to the disadvantages of masks, and accordingly maskrequirements, that was also part of the advice. The WHO advice had listed increasedrisk of self-contamination, headaches and breathing difficulties, skin difficulties,communication difficulties, discomfort, a false sense of security, poor compliance,waste management issues, and difficulties with wearing face masks (particularly forchildren) as amongst the disadvantages. Those are the kind of disadvantages thatDr Bloomfield had summarised to the Minister in his paper of 10 September 2020.[66] It is also apparent that Minister Hipkins was aware of these issues. He refersto the WHO advice of June 2020 in his evidence. He also specifically refers to thefact that it was unlikely that evidence on the efficacy face coverings would reach thegold standard of RCTs. The applicant argues that the Minister's views in this respectwere wrong because there was such evidence in the form of the Cochrane Review.But given the conclusion of the Cochrane Review was that the limited RCT evidencewas inconclusive and that there was a need to get more comprehensive evidence Iconsider this criticism to be misguided.[67] By the time of the decisions made by Minister Verrall the information referredto in the advice papers was less extensive. That is not to say it was not sufficientlycomprehensive, however particularly given the ongoing analysis and advice that hadbeen provided from 2020. The Minister herself had not had the extensive history ofbriefings over the period of the pandemic. But at that stage the decision-makingprocess involved the relaxing of the requirements. I also consider it unrealistic tosuggest that Minister Verrall, who herself is a practicing infectious diseases physicianprior to becoming a Member of Parliament in 2020, was unaware that the evidenceabout the efficacy of face masks had uncertainties, or that there were disadvantages inrequiring them. This had been a matter of reasonably prominent public debateparticularly amongst the medical experts. She would have been aware of sources suchas the WHO advice, for example. In any event it would be unjustified to reach aconclusion that she had not taken into account particular considerations without thatallegation being formally raised so that the respondents had an opportunity to respondto it.[68] Overall there is no basis to say that there was a failure to take into accountmandatory relevant considerations, or a failure to provide adequate advice to theMinisters in the decision-making process.[69] For these reasons these grounds of review are dismissed.Section 14 NZBORA — Freedom of expression[70] I deal next with the applicant's challenge based on the right to freedom ofexpression.[71] As the Supreme Court has most recently explained in Moncrief-Spittle vRegional Facilities Auckland Ltd discretionary decision making is constrained in twoseparate ways when a NZBORA right is being limited:28(a) subjectively: the decision-maker must be satisfied that a limitation ofthe right is justified; and(b) objectively: the Court must assess whether there has been an unjustifiedlimitation of the right.[72] In this case the requirement that the decision-maker turn their mind to thelimitation of such a right is also expressly set out as a requirement of the Act. Section 9materially provides:9 Requirements for making COVID-19 orders under section 11(1) The Minister may make a COVID-19 order under section 11 inaccordance with the following provisions:(ba) the Minister must be satisfied that the order does not limit or isa justified limit on the rights and freedoms in the New ZealandBill of Rights Act 1990;[73] It was not clear from the applicant's submissions which of the two relatedelements the challenge focused on, but it appeared to be primarily based on the grounddescribed in [71](b) above. Reliance was placed on art 19 of the InternationalCovenant on Civil and Political Rights and other international instruments, as well ascases where non-verbal activities have been held to engage the right of freedom ofexpression including the burning of flags,29 wearing gang insignia,30 and running in awooded area wearing only running shoes.31 The decision of the Court of Appealaddressing whether the wearing of a hair piece was encompassed within the freedom28 Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, [2022] 1 NZLR 459, at[81]–[86].29 Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.30 Schubert v Whanganui District Council [2011] NZAR 233.31 Pointon v Police [2012] NZHC 3208.of expression was also the focus of argument.32 The respondents duly engaged withthe applicant's arguments about whether non-verbal activities fell within the right,relying on overseas case law addressing when it did so.33[74] I do not consider that the application of s 14 in the case turns on debates aboutthese outer margins of freedom of expression. In my view s 14 is clearly engaged ina more direct way by a face mask requirement. That is because:(a) Requiring a person to wear a face mask interferes with their ability toverbally communicate. It inhibits the physical mechanics of speaking.As the WHO said in its advice on the negative aspects of face masks,one disadvantage was "difficulty with communicating clearly". Rightsare limited when they are made more difficult to exercise in a materialway.(b) Verbal communication can also be assisted by the physical presentationof the face, and particularly the mouth. That is plainly so for those whorely on lip reading, but it is also manifested through facial expressionand other non-verbal indications of meaning.(c) The presentation of the face can also portray meaning in the absence ofverbal communication. That could be so in relation to a tā moko orother facial tattoo, but also the wearing of make-up or jewellery etc.[75] The third of these features raises the arguments about non-verbal modes ofexpression that was the subject of argument by the parties. But given that a face maskrequirement clearly limits the first two aspects of verbal communication it seems tome that the right in s 14 was plainly limited by the challenged measures.[76] Both Ministers proceeded on the basis that the face mask requirement limitedthe freedom of expression. Minister Hipkins said in his affidavit he considered therequirement for face coverings was a justified limit on the individual's right of freedom32 Attorney-General v Smith [2018] NZCA 24, [2018] 2 NZLR 899.33 Attorney-General (Quebec) v Irwin Toy Ltd [1989] 1 SCRA 927; Karr v Schmidt 460 F 2d 609(5th Cir 1972).of expression. In his second affidavit he explains that he did not receive specificadvice about the NZBORA when he made the decision to implement the challengedorder, but that he was familiar with the NZBORA considerations relating to facecovering requirements from earlier decisions. He explained that he considered thelimitation on freedom of expression minor and in any event justified. He said that it" was one of the least rights-intrusive measures and it was the measure that I wasleast concerned about from a Bill of Rights perspective."[77] The applicant argued that this view was "extraordinary" given the broad natureof the right. The applicant argued that an unduly narrow view of the right had beentaken. I do not accept this. There is nothing in the Minister's affidavit that suggestedthe right of freedom of expression was being given a narrow interpretation. It wasaccepted that the right was being limited. The view taken, however, was that thelimitation of the right was justified. This involves a different question.[78] Similarly Minister Verrall was advised that the face mask requirement limitedthe right of freedom of expression, albeit at a low level. She said in her affidavit sheconsidered this was a minimum intrusion that was easily justified given the ability ofmasks to reduce transmission of COVID-19.[79] I note that there is some reference in the advice papers at the time of thedecision by Minister Verrall that a requirement to wear a face mask did not, inprinciple, engage the right of freedom of expression other than in exceptional cases. Isuspect that this was based on the more esoteric debates about non-verbal modes ofexpression. To the extent that was the advice given to Minister Verrall it was notcorrect for the reasons I have identified at [74] above. But based on the evidence ofthe two Ministers I do not apprehend that this view was held by them when they madetheir decisions. Rather they proceeded on the basis there was a limitation of the right,but that the limitation was justified.[80] As indicated the Court itself must assess whether the limitation of the right isdemonstrably justified under s 5 of NZBORA. Whether a limitation on a right isjustified can be addressed by the structured steps outlined by the Supreme Court inHansen v R,34 or by a less structured approach along the same lines.35[81] The arguments advanced by the applicant on this issue returned to its criticismof the view that face masks were effective at permitting the spread of COVID-19, andrepeated the argument that the Minister was labouring under a mistake of fact. For thereasons outlined above I do not accept these arguments. In any event I accept that thelimitation of the right of freedom of expression was demonstrably justified. That is sofor the following reasons:(a) Whilst there is legitimate debate about the effectiveness of face masksin restricting the spread of COVID-19, there is a substantial body ofexpert opinion that they are so effective. This included the advice fromthe WHO, and New Zealand experts such as Professor Baker andAssociate Professor Kvalsvig.(b) The restriction on the right of freedom of expression is a confined one.It only applies to the effects described in [74] above which is only arestriction of the right of expression to a limited extent. It did notprevent expression. It only applied to certain environments, and onlyfor certain periods of time. It was also proportionate to the need forwhich it was imposed.(c) As a number of COVID-19 decisions have now concluded, aprecautionary approach is permitted when making decisions addressinga need to minimise the spread of a potentially deadly illness.36 Whereevidence is uncertain such an approach can legitimately be applied. Itwas so appropriate here. Better safe than sorry.34 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [104].35 Moncrief-Spittle v Regional Facilities Auckland Ltd, above n 28, at [85]–[92].36 Orewa Community Church v Minister for COVID-19 Response [2022] NZHC 2026, [2022]3 NZLR 475; Four Aviation Service Employees v Minister of COVID-19 Response, above n 8, at[111]–[112]; GF v Minister of COVID-19 Response, above n 7, at [84]–[86].[82] As explained above, when discretionary decisions restrict a fundamental rightin the NZBORA the decision-maker must address that restriction and consider whetherit is demonstrably justified, and the Court must also be satisfied that any restriction isso justified. It is clear that both Ministers accepted that the mask mandate limited thefreedom of expression, but concluded that this limitation was justified. The firstrequirement was accordingly met. As to the second requirement I essentially agreewith the Ministers that the restriction was demonstrably justified for the reasons justaddressed.[83] For these reasons this ground of review is dismissed.Section 11 NZBORA — Right to refuse to undergo medical treatment[84] The applicant next argued that the challenged decisions limited the right torefuse to undergo a medical treatment guaranteed by s 11 of the NZBORA.[85] The respondents' position was that this right was not engaged by the challengeddecisions. Mr Hipkins explained in his affidavit that he had not been advised that s 11was relevant. Minister Verrall does not address this right in her evidence. The advicepapers to both Ministers did not suggest that this right was engaged. The applicantargued, however, that the right was engaged. If the applicant is right, then thedecisions may have been unlawful given the requirement of s 9(1)(ba) of the Act.[86] Because the right to refuse a medical treatment is not referred to in otherinternational instruments it has been necessary for New Zealand to develop its ownapproach to this right. That approach is explained by the Supreme Court in NewHealth New Zealand Inc v South Taranaki District Council.37 A majority of the Courtheld that the fluoridation of drinking water supplies did engage the right. The Courtdid not apply definitions provided in medical dictionaries.38 It also rejected theargument that there needed to be a relationship between a medical practitioner and anindividual where consent could be given and withdrawn before a measure could beregarded as a medical treatment.39 Neither did the Court see an important difference37 New Health New Zealand Inc v South Taranaki District Council, above n 1.38 At [73]–[74].39 At [88]–[90].between the word "undergo" in s 11 and the use of the word "subjected to" in ss 9 and10 of the NZBORA.40 O'Regan J concluded:41We conclude that s 11 of the Bill of Rights Act applies to any compulsorymedical treatment, whether provided in the course of a practitioner/patientrelationship or as a public health measure. We consider that this represents agenerous interpretation of s 11 but does not "overshoot" the purpose of thes 11 right.Reading down s 11 to exclude public health measures would leave open thepossibility that compulsory mass medication as a public health measure wouldnot be within the scope of s 11. There is nothing in the wording of s 11 orevident from the statutory purpose to justify such a reading down of theprovision. We accept that this interpretation of s 11 may bring within its netsome public health measures that are obviously necessary and justified, butsuch justification is better dealt with under s 5 than in the exercise ofinterpreting s 11.Applying this approach, we find that fluoridation of drinking water is theprovision of medical treatment. It involves the provision of apharmacologically active substance for the purpose of treating those whoingest it for dental decay. We agree with the Courts below that people who liveor work in areas where fluoridation occurs have no practical option but toingest the fluoride added to the water. So the treatment is compulsory. Whiledrinking water from a tap is not an activity that would normally be classifiedas undergoing medical treatment, we do not consider that ingesting fluorideadded to water can be said to be qualitatively different from ingesting afluoride tablet provided by a health practitioner.[87] Elias CJ said:42Section 11 applies in its terms to all medical treatment. It seems to meirrelevant that the medium through which fluoride is delivered is water supplyand that it is therefore administered "indirectly". Medical treatment which isdelivered in water supply is treatment even if it is administered indirectly, inthe sense that the supply of water itself is for other purposes. The fluoridesupplied through the water is the relevant treatment. The water is simply themedium used to treat the population with fluoride. The issue in the case doesnot concern water, but fluoride administered through water without theconsent of those to whom drinking water is reticulated.Although fluorides may be medicines (prescription, restricted, pharmacy-onlyor general sale) depending on their concentration and intended use,fluoridating agents and fluoridated drinking water are specifically declared notto be medicines by reg 58B of the Medicines Regulations 1984. "Medicaltreatment" does not, however, need to involve the supply of a medicine, as theWhite Paper's reference to psychological treatment makes clear. Thedefinition of "medicine" used in the Medicines Act is for a distinct regulatorypurpose which does not bear on the values protected by s 11. I consider40 At [96].41 At [97]–[99] for himself and Ellen France J, Glazebrook J agreeing at [172].42 At [232]–[234]. Glazebrook J agreeing at [172].whether or not the fluoride supplied in water would be classified as a"medicine" for the purposes of the Medicines Act does not determine theinterpretation of s 11 of the New Zealand Bill of Rights Act.The scope of s 11 is not properly cut down because fluoride occurs naturallyin water and, in other countries, at levels which the addition of fluoride asrecommended by the Ministry of Health may replicate. In the case of naturallyoccurring fluoride, there may be no "treatment" imposed by a public authority.But if, as the evidence suggests, treating a population with fluoride is a "publichealth measure that works in a prophylactic or preventive way", that seems tome to be "treatment" which requires consent under s 11. The same conclusionmight well apply to imposed addition of folic acid or iodine if there is nopractical way for consumers to avoid consuming food to which these elementshave been added.[88] The applicant argued that the requirement to wear a face mask involved amedical treatment. As with the fluoridation case it relied on a definition provided inMosby's Dictionary of Medicine which referred to treatment as any method ofpreventing a disease.43 It said that face coverings fell within the definition of "medicaldevice" in s 3A of the Medicines Act 1981. It referred to provisions in the Code ofHealth and Disability Services Consumers' Rights.44 It also referred to authorities thatheld a medical treatment could include a medical examination,45 confinement in anabortion clinic,46 an assessment of children taken to a doctor for the purpose ofinvestigation into their safety,47 and a psychological assessment of a prisoner.48 Itrelied on the view that the right was part of a group of rights whose purpose was toprotect both bodily integrity and human dignity.49 The applicant argued that all ofthese sources exemplified that the right was engaged when something was beingapplied to, or with one's body for a medical purpose.[89] I consider that the definition of the right in s 11 must be consideredpurposively, and that the application of s 11 ultimately involves questions of degree.That is how I understand the Supreme Court's approach in New Health. In assessing43 Peter Harris, Sue Nagy and Nicholas Vardaxis Mosby's Dictionary of Medicine, Nursing andHealth Professions – Australian and New Zealand edition (2nd ed, Elsevier, Chatswood (NSW),2009).44 Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights)Regulations 1996.45 M v Attorney-General [2006] NZFLR 181 at [107].46 Re Abortion Supervisory Committee [2003] 3 NZLR 87.47 M v Attorney-General, above n 45.48 Smith v Attorney-General HC Wellington CIV-2005-485-1785, 9 July 2008.49 Relying on Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary(2nd ed, Lexis Nexis, Wellington, 2015) at [11.6.2]–[11.6.4].the applicant's argument, and the various sources it relied upon, it seems to me thatthere are three factors that can be advanced in support of the idea that a face maskrequirement involves a compulsory medical treatment:(a) It is a public health measure imposed to inhibit the transmission of aknown disease.(b) It involves those subject to the requirement to apply something to a partof their body.(c) The item so applied is commonly a standard piece of medicalequipment — a surgical mask — although other forms of mask can beused.[90] Notwithstanding these factors I do not accept that requiring face masks to beworn involves a compulsory medical treatment within the meaning of s 11.[91] I accept it is a public health measure. But not all public health measuresinvolve medical treatments. I see the requirement to wear a face mask as similar incharacter to a requirement to wash hands, or maintain physical distancing. It is apreventative measure rather than a treatment. Whilst I accept that some preventativemeasures can become medical treatments — illustrated by the conclusion in relationto the fluoridation of water supplies — this is because of particular features.Fluoridation crossed the line into a medical treatment because it effectively involvedthe compulsory ingesting of a pharmacologically active substance to treat dentaldecay. Here there is no requirement to ingest or apply such a substance. It is purely apreventative step which involves no treatment.[92] There is a further point. As the passages from Butler and Butler relied uponby the applicant say, the s 11 right is amongst a family of rights that have personalautonomy and human dignity as their underlying purpose. When identifying whetherthere has been compliance with fundamental rights the decision-maker must turn theirmind to the question in a substantive sense. It is not necessary that they make explicitreference to the particular section of the NZBORA provided the substantive right, orthe limitation of that right, is addressed.50 Even if I had accepted the applicant'sarguments that the measure here met the definition of medical treatment it seems tome that the limitation of rights was addressed in a substantive sense. Minister Hipkinssaid in his second affidavit:I also considered generally the issue of restriction on autonomy (although notexplicitly a right guaranteed) on the basis the requirements limited a person'sautonomy to choose what they put on their face and when. I considered theseconcerns were mitigated by the flexibility of the face covering requirementsat the time, and the evidence supporting the effectiveness of face coverings inreducing the spread of infectious diseases.[93] Although there is no explicit reference of this kind in Minister Verrall'saffidavit I consider that both Ministers were conscious that they were makingdecisions that were rights restrictive in this more general sense. So even if theapplicant's definitional argument had succeeded it may well be that the Ministers metthe requirements for addressing the restriction of rights in a substantive way. And forthe reasons I have already outlined in relation to freedom of expression I consider thelimitation of rights to be demonstrably justified. The same conclusion arises even ifthe measure had crossed the definitional boundary such that s 11 was engaged as well.[94] In any event I do not consider that s 11 is engaged. The applicant's challengeon this ground is dismissed.[95] The applicant also argued that the decisions breached the right in s 8 of theNZBORA to the right not to be deprived of life. Although there are argumentsconcerning a wider meaning of this right I do not see any basis for contending that aface mask requirement engaged it. I consider that the challenge based on this rightcan be dismissed out of hand.Irrationality[96] Finally the applicant challenges the relevant decisions on the grounds ofirrationality.50 Puli'uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA) at 514.[97] Irrationality and unreasonableness are closely related grounds of judicialreview. Unreasonableness arises when the Court determines that the substantivedecision was not reasonably open to the decision-maker. It is usually possible toidentify a more particular ground of judicial review with such decisions — for exampletaking into account irrelevant considerations, or failing to address mandatory relevantones. The Court will always seek to identify as precisely as possible the particularbasis for finding a decision was not lawfully made. But occasionally there will besituations where a failure to exercise a decision lawfully is inferred from the decisionitself. Indeed a lack of reasons and of reasoning, which might otherwise be scrutinisedon the other grounds of review, may be part of the unreasonableness found by theCourt. Indeed, some argue that a lack of reasons or reasoning is at the heart of thisground of review.51 The more surprising the decision is the more it needs to beexplained by the decision-maker.[98] Irrationality has a similar foundation. Irrationality arises when a decision doesnot make sense — where there are gaps in reasoning, or the decision appears to beillogical. Again the reasoning provided — the rationalisation — may be veryimportant. As with unreasonableness, however, this ground of review arises when theCourt infers that the decision reached cannot be considered to be in accordance withthe empowering provision because of a lack of rational basis for it.[99] The applicant's arguments here again returned to its key theme. It argued thatthe measures "lacked efficacy of purpose" because there was no reliable high qualityscientific evidence to justify them, that the rapid spread of COVID-19 demonstratedtheir ineffectiveness, and that the measures were not coordinated, orderly orproportionate.[100] I have already addressed and rejected many of these substantive points abovein relation to the challenge based on mistake of fact, the re-formulated argument basedon the alleged failure to adequately take into account the underlying evidence, and the51 See Canada (Minister of Citizenship and Immigration) v Vavilov [2019] SCC 65, [2019] 4 SCR653 at [86]; Lord Woolf, Jeremy Jowell, Catherine Donnelly and Ivan Hare De Smith's JudicialReview (8th ed, Sweet & Maxwell Ltd, London, 2018) at [1-037].challenges based on the NZBORA. There are only two additional matters that Iconsider necessary to address.[101] The first is the applicant's argument that the rules and guidance relating to themask requirements were inconsistent and contradictory and accordingly lackedrationality. It referred to public advice on the government's website which addressedthe encouragement for wearing face masks as well as the rules. I do not addresswhether these criticisms are made out on the facts. That is because I do not considerthat such criticisms can be relevant to a challenge to the decisions to promulgate ordersmade under the Act. Whether there have been confusing messages is a criticism of acommunication strategy. It is not a ground of review of the statutory decisions.Background of this kind might be relevant to a judicial review challenge in somecircumstances, but I do not see how that can be so here. I see no substance to thisground of challenge.[102] Finally I address the point, most squarely advanced by Mr Reid, that the extentof the exceptions provided for the mandate, particularly the more limited mandatearising from Minister Verrall's decision, meant that there was no longer a rational basisfor the order. It was argued that the exceptions were so extensive (and confusing) thatthey deprived the order of any potential efficacy. So, for example, when the mandateapplying in a rest home did not apply to the residents or to the staff and only to visitors,and it had an exception (for example) that a face covering could be removed becauseof hearing difficulties, this led to a situation where the mandate could realistically notbe effective. Put another way, the exceptions had overwhelmed the purpose of themeasures imposed by the Orders.[103] I accept that the effectiveness of a mask covering to prevent transmission willlikely be reduced the less extensive it is, and the more exceptions that there are. But Isee this argument as essentially circular. If the mandate is limited, and subject tosignificant exceptions, it is less rights intrusive. It is not the Court's function to makethe public policy decisions. The Court's role is to ensure the decisions are lawful. Andin this context what is important to legality is proportionality. The fact that theMinisters imposed less restrictive mandates, or made them subject to reasonablyextensive exceptions, does not make them unlawful.Conclusion[104] For the above reasons the applicant's challenges are dismissed.[105] During the course of the pandemic there have been a number of challenges toCOVID-19 related decisions. Many of those cases have involved important issuesconcerning the protection of the rights of the individual when the state has exercisedcoercive powers for the greater good. It is of real importance that individuals haveaccess to the Court to ensure that their rights and liberties are adequately protected insuch circumstances. During the pandemic the Court has not hesitated to set asidedecisions, or to declare them to have been made unlawfully.52[106] I do not consider this challenge to be of that kind, however. Whilst there areviews held by some scientists that face coverings are not likely to be effective, thatdoes not mean that it is unlawful to require them. The debate about efficacy might bemore relevant if a mask mandate involved a significant transgression of individualrights. But it does not. It is a precautionary step that Ministers decided to take whenthe pandemic was at its most threatening. I do not consider this judicial reviewchallenge to be well founded.[107] The respondents will be entitled to costs. My preliminary view is that theyshould be awarded on a 2B basis. If costs cannot be agreed I will receive amemorandum from the respondent within 15 working days (no more than five pagesplus a schedule) to be responded to within 10 working days thereafter (no more thanfive pages plus a schedule).Cooke JSolicitors:Graeme Reeves, Barrister & Solicitor, Wellington for the ApplicantCrown Law, Wellington for the Respondents52 Grounded Kiwis Group Inc v Minister of Health, above n 3; Yardley v Minister for WorkplaceRelations and Safety, above n 17; Te Pou Matakana Ltd v Attorney-General [2021] NZHC 2942,[2022] 2 NZLR 148; Christiansen v Director-General of Health [2020] NZHC 883; Borrowdalev Director-General of Health, above n 3.