OREWA COMMUNITY CHURCH v MINISTER FOR COVID-19 RESPONSE [2022] NZHC 2026 [16 August 2022]

OREWA COMMUNITY CHURCH v MINISTER FOR COVID-19 RESPONSE [2022] NZHC 2026[16 August 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-9[2022] NZHC 2026UNDER the Judicial Review Procedure Act 2016IN THE MATTER OF the COVID-19 Public Health Response(Protection Framework) Order 2021BETWEEN OREWA COMMUNITY CHURCH ANDOTHERSApplicantsAND MINISTER FOR COVID-19 RESPONSEAND THE DIRECTOR-GENERAL OFHEALTHRespondentsContinuedHearing: 16-17 June 2022Counsel: M J Flannagan and G Edgeler for the Applicants inCIV-2022-485-9L I van Dam and A J Summerlee for the Applicants inCIV-2022-485-123B McKenna and C Wrightson for the Respondents in both mattersJudgment: 16 August 2022JUDGMENT OF GWYN JSolicitors:Go Legal, AucklandParry Field Lawyers, ChristchurchCrown Law, Wellington ContinuedCIV-2022-485-123UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court Rules 2016IN THE MATTER OF an application for judicial reviewBETWEEN FREE TO BE CHURCH TRUSTApplicantAND MINISTER FOR COVID-19 RESPONSERespondentTABLE OF CONTENTSIntroduction [1]Orewa [5]FTBC [8]Summary of conclusions [11]Background [13]Legal framework [47]The COVID-19 Public Health Response Act 2020 [47]COVID-19 Public Health Response (Protection Framework) Order 2021 [52]The relevant right – s 15 Bill of Rights Act [66]Are the applicants' beliefs such that their manifestation is protected by s 15?[77]Preliminary questions [94]Deference [94]The precautionary principle [108]Approach to the Bill of Rights Act analysis [116]Prescribed by law; restrictions amount to a limitation [120]Do the limits serve a sufficiently important purpose? [121]The applicants' challenges [127]CVC-related restrictions as introduced [130]Rational connection [135]The scientific evidence [136]Covid-19 [148]Asymptomatic and pre-symptomatic transmission [153]Effectiveness of the Pfizer vaccine [159]Risk assessment of faith-based gatherings [169]Comparison with schools [187]Other activities and businesses [198]Less impairing alternatives [207]Masking, social distancing, good hygiene practices (the "three Ws") [211]Size of venue / social distancing/ventilation [216]PCR / RAT testing, prior infection [220]Discussion [227]Proportionality [235]CVC-related restrictions after Omicron in the community [238]Effectiveness of the vaccine against Omicron [241]What the advice to government said [253]Delay in implementing decision to remove requirement for CVCs [260]Offence provisions [264]Gatherings at private dwellings [268]Conclusion as to CVC-related restrictions after Omicron in the community [274]Limit in due proportion to the importance of its objective [277]Failure to consider s 15 of the Bill of Rights Act/Error of law [284]Unreasonableness [291]Exemption under cl 105 of the Order [293]Conclusions [296]Costs [299]Introduction[1] This case concerns whether, as part of the New Zealand government's responseto the Covid-19 pandemic, various restrictions imposed were unlawful because theylimited the right of the applicants to manifest their religious beliefs.[2] There are two claims, the first is brought by Orewa Community Church andothers (Orewa); the second by the Free to Be Church Trust (FTBC). Both claims arebrought against the Minister for Covid-19 Response (Minister) and the Director-General of Health (Director-General).[3] Both applicants challenge the lawfulness of the Covid-19 Public HealthResponse (Protection Framework) Order 2021 (the Order). The provisions of theOrder set out various ways to regulate activities and gatherings, including faith-basedgatherings, at different levels of Covid-19 risk. The Order imposed limits on the sizeof gatherings, depending on whether attendees had Covid vaccination certificates(CVCs) or not, and depending on what level of the Covid-19 Traffic Light Frameworkwas in place.1 Lower limits applied where participants did not have CVCs.[4] While there are differences between the claims by Orewa and FTBC, both saythe limits placed on gatherings by the Order are in breach of their right to manifestreligion under s 15 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act)and are therefore ultra vires.Orewa[5] The Orewa applicants comprise:(a) Orewa Community Church, Orewa;(b) the Al Hikmah Trust, Auckland;(c) St Anthony's Catholic Church, Whanganui;1 COVID-19 Public Health Response (Protection Framework) Order 2021, cls 46 and 47.(d) Bridges Church, Cambridge;(e) C3 Churches, Auckland, Taupō and Christchurch;(f) Central Worship Centre Church, Avondale;(g) City Impact Churches;(h) Connect Church, Paraparaumu;(i) Curate Churches, Auckland, Tauranga, and Whakatāne;(j) Encounter Churches, Auckland, Levin, and Bream Bay;(k) Equippers Auckland Trust, Auckland;(l) LifeChurches, Auckland;(m) New Life Churches;(n) Papatoetoe Community Church, Papatoetoe; and(o) Reverend Johnathan Grant, the Vicar of St Paul's Symonds Street,Auckland.[6] The Orewa applicants have presented a large number of affidavits frommembers of the applicant churches and mosques. In addition, Dr Matthew Flannagan,a theologian, and Professor Timothy Flanigan, a specialist in serious infectiousdiseases and public health, have given expert evidence for the Orewa applicants.[7] The Orewa applicants argue that both the CVCs and the gathering limits in theOrder unjustifiably limit their rights to manifest their religion. That is, all capacityrestrictions imposed on faith-based gatherings under the Order were, and continue tobe, unlawful.2 The Orewa applicants also argue that the Minister failed toappropriately take the right to manifest religion into account in introducing therestrictions in the Order.FTBC[8] FTBC is a trust incorporated under the Charitable Trusts Act 1957 andrepresents ministers and church leaders of various Christian protestant denominations.The FTBC trustees who have brought the proceeding are:(a) Andre Bay, the pastor of Shore Baptist Church, Auckland;(b) Jason Winslade, the pastor of Redemption Church, Christchurch;(c) Logan Hagoort, the pastor of Covenant Presbyterian Church,Christchurch;(d) Phil Henderson, the pastor of Onekawa Bible Church, Napier;(e) Bruwer Vroon, the pastor of Grace Church, Gisborne;(f) Matthew Johnston, the pastor of Riverbend Bible Church, Hastings;(g) Nick Clevely, the pastor of Covenant Grace Baptist Church, Timaru;and(h) Kris Baines, the pastor of Community Bible Church, Wellsford.[9] The FTBC applicants say that the restrictions in the Order made arbitrarydistinctions between faith-based gatherings and comparable situations and that theMinister did not move fast enough in removing the CVC-based limits on faith-basedgatherings once the Omicron variant of Covid-19 emerged in the community. Theysay that, at that point, the restrictions became an unjustified limit on their right to2 As of 4 April 2022, CVCs are no longer part of the Order. Capacity restrictions at the Red settingremain in the Order. New Zealand is currently at the Orange setting.manifest their religion. Alternatively, the FTBC applicants argue the Covid ProtectionFramework (CPF) restrictions are unreasonable. FTBC does not challenge thecapacity restrictions that remain at the Red traffic light setting.[10] The FTBC applicants also put forward a number of affidavits from membersof the applicant churches. They did not file their own expert evidence but relied tosome extent on Professor Flanigan's evidence.Summary of conclusions[11] I have determined that:(a) The measures in the Order do limit and restrict the applicants' rightsand freedoms under s 15 of the Bill of Rights Act.(b) The measures were a justified limit on those rights and freedoms, bothat introduction and after the Omicron variant was circulating inNew Zealand.(c) The Minister did not act unreasonably by making distinctions in theOrder.[12] My reasons for reaching those conclusions are set out below.Background[13] On 30 January 2020 the World Health Organization (WHO) declared theCovid-19 pandemic a Public Health Emergency of International Concern. Covid-19is a disease caused by a novel coronavirus called SARS-CoV-2. As is now well-known, the first case was identified in Wuhan, China, in December 2019, but thedisease soon spread all over the world.[14] In the first phase of the Covid-19 pandemic, prior to the development of avaccine, the New Zealand government's strategy was to eliminate Covid-19 from thecommunity. On 23 March 2020, the Prime Minister issued an epidemic notice3 andon 25 March 2020, New Zealand went into its first nation-wide lockdown. Theelimination strategy had a number of aspects, including border restrictions, contacttracing, regular testing of frontline workers and the Alert Level system. FromMarch 2020 to October 2021, New Zealand moved between Alert Levels withadjustments to restrictions as required.[15] Restrictions on gatherings were, for most of 2020 and 2021, a central part ofthe Alert Level system. Services provided at places of worship were classed as"gatherings" from the beginning of the Alert Level system.[16] The Pfizer-BioNTech vaccine (the vaccine) was approved by the New ZealandMedicines and Medical Devices Safety Authority (Medsafe) in February 2021 and arollout of the vaccine occurred across New Zealand during the course of 2021. ThePfizer vaccine has been the primary vaccine used in New Zealand. By early August2021, Covid-19 had been eliminated within New Zealand.[17] In August 2021 New Zealand had its first community outbreak of the Deltavariant of Covid-19 and the country was placed in Alert Level 4 lockdown on17 August 2021. Most of New Zealand returned to Alert Level 2 by 7 September2021, but parts of Auckland, Northland and Waikato remained in the higher AlertLevels for months.[18] On 24 September 2021 Cabinet received preliminary advice as to how proofof Covid-19 vaccination could be used to reduce the impact of Covid-19 on publichealth. A briefing of that date from the Department of the Prime Minister and Cabinet(DPMC) and the Ministry of Health said:As New Zealand's vaccination programme advances, the use of vaccinationas a condition of entry to venues provides a potential additional risk mitigationmeasure to further reduce the risk of outbreaksThe public health benefit of using CVCs in high-risk events and venuesdepends on the level of vaccination coverage, if an outbreak is occurring, andthe number of COVID-19 cases. CVCs could mitigate the risk of COVID-193 This notice has been renewed every three months since and remains in force today.outbreaks in some settings and protect vulnerable populations by reducing therisk of COVID-19 spread.Secondary benefits could be to incentivise vaccination and providereassurance to event organisers that their event is unlikely to be cancelled ifthere is an escalation of Alert LevelsThe events and venues that are considered to be highest risk are those wherethere are large numbers of people, which continue for a long period of time,and where there is close interaction between attendees. The key risk factorsto use when identifying high-risk events and venues include:• Number of people• Proximity to each other / density and crowding / whether peopleare travelling or living together• Length of time together• The proportion of people that attend from outside the region• Ventilation systems at indoor venues• Presence of vulnerable people[19] The advice also noted that CVCs should be considered as part of a wider suiteof interventions to reduce the risk of community transmission of Covid-19, such asstaying at home if sick, mandatory record-keeping, zoned areas to maintain smallerbubbles, reinforcement of hygiene messaging and mask wearing.[20] The advice noted that proof of a negative Covid-19 test is less effective inbenefitting public health than proof of full vaccination because vaccination generallyprovides better assurance of baseline protection. Proof of vaccination would be thestronger public health measure.[21] Following receipt of that advice, the Minister agreed to consultation on aframework for requiring, prohibiting and enabling the use of CVCs.[22] On 27 September 2021 the Prime Minister briefed Cabinet on a proposedstrategy, which introduced the three levels of what came to be known as the TrafficLight Framework, with different settings for Red, Amber (subsequently Orange) andGreen. Officials were directed to develop the preliminary framework further to addin detailed settings, based on modelling, science and public health advice.[23] Consultation, including with places of worship, occurred on the preliminaryframework which included, in regard to gatherings (whether private, church or marae)that:(a) at Green, gatherings would have no restrictions;(b) at Amber, gatherings would have no restrictions with a vaccinationrequirement or limited numbers and attendees seated and separated; and(c) at Red, gatherings would be strictly limited.[24] The Prime Minister reported back to Cabinet on 4 October 2021 on the Strategyfor a Highly Vaccinated New Zealand. Cabinet agreed to use CVCs in some domesticsettings. Officials were asked to explore a range of domestic settings where they mightbe used, taking into account the risk of transmission at specific events, due to thenumber of people in attendance and the types of activities being performed.[25] The Strategic COVID-19 Public Health Advisory Group (SPHAG) was askedto comment on the paper considered by Cabinet on 4 October 2021. It raised concernsthat the Traffic Light settings were not sufficiently restrictive.[26] On 14 October 2021 the Minister for Covid-19 Response, Mr Chris Hipkins(the Minister), received a further joint briefing from DPMC and the Director-Generalupdating him on progress and future work required in relation to the development ofa new domestic response framework. The advice noted that:(a) Vaccination requirements should be considered as part of a wider suiteof interventions to reduce the risk of community transmission of Covid-19.(b) Vaccination requirements could be used to reduce the risk of super-spreader events, at least until vaccination rates are well over 90 per centacross all (eligible) age and ethnic groups.(c) There was public health benefit in people being vaccinated at all higher-risk settings.(d) Vaccination requirements do not mitigate all risk of transmission andcannot always be considered as a substitute for other public healthmeasures.[27] On 18 October 2021 Cabinet decided to move from the elimination strategy toa minimisation and protection strategy, with the Covid Protection Framework as thecentral element. The CPF laid out response measures for what was, by then, a highlyvaccinated population, without relying on lockdowns. The CPF features three levels:(a) Green – aims to allow normal social and economic activity, whilecontinuing to build health system capacity.(b) Orange – aims to avoid exponential growth in cases, with moderatepopulation-level controls.(c) Red – aims to protect the sustainability of the health system and thehealth of communities through population-level controls.[28] The CPF framework sought to leverage the protections of vaccination byproviding greater freedoms to people when they were fully vaccinated. Thevaccination requirements were different at each level, in response to the level of riskinvolved.[29] Cabinet agreed that decisions to move between levels would be guided bythresholds for change, developed by the Ministry of Health:(a) Green – case numbers kept low through testing, contact tracing andquarantine and hospitalisations at a manageable level.(b) Orange – a move to Orange would occur with increasing communitytransmission, increasing pressure on the health system, or increasingrisk to at-risk populations.(c) Red – a shift to Red would occur when Orange is no longer containingthe virus in the original outbreak areas, action is needed to protect thehealthcare system, and the health of communities, or at-riskpopulations.[30] On 26 October 2021 the Prime Minister reported to Cabinet on revised settingsfor the introduction of CVCs.[31] The Guidelines for Places of Worship (Guidelines) were issued on29 November 2021.[32] On 30 November 2021 the Minister made the Order. The Order came intoforce on 2 December 2021.[33] The first case of the Omicron variant of Covid-19 was detected in thecommunity in New Zealand on 22 January 2022. On 23 January 2022, the Ministerordered that all of New Zealand be moved into the Red setting of the CPF. On thatsame day, Cabinet decided to introduce a three-phase system to address Omicron,which would run alongside the CPF, with a focus on testing, contact tracing and self-isolation requirements for new cases.[34] On 25 January 2022 the Minister briefed Cabinet on updates to the Red settingsof the CPF, reflecting Ministry of Health advice to him:Current evidence suggests Omicron has higher transmissibility, and vaccinesshow reduced effectiveness against the Omicron variant compared to Delta.This means that more vaccinated people are likely to become infected and thatthe number of COVID-19 cases occurring each day will be far greater than atany other time during the pandemic. At the initial stages of this outbreak, theoverall response to Omicron will focus on 'stamping it out'. Once communitycase numbers increase, our focus will shift to 'managing the virus' to slow thespread, mitigate impacts on the most vulnerable and maintain essentialactivities and supply chains.[35] The Minister also noted that decreasing the number and risk of exposure eventswas a core public health measure to manage transmission:Lower capacity limits in high-risk settings will help to reduce the transmissionof the virus. However, there is no precise level of capacity limits for particularkinds of venues that is optimal. Rather, reducing capacity limits is a toolwhich may be used alongside other public health measures, and specific limitsshould be set by reference to both those other measures and the practicalimplications for businesses, whanau and others who will be affected.[36] A further Public Health Risk Assessment on 2 February 2022 recommendedthat gathering limits at the Red setting remain unchanged at that point, but be keptunder regular review as the Omicron outbreak evolved, with a view to reducinggathering limits should there be rapid and uncontrolled community transmission.[37] During February Omicron cases in New Zealand continued to risesubstantially. The Government response was to shift to Phase 2 of the Omicronresponse on 15 February 2022 and to Phase 3 on 24 February 2022. At that point,there were over 5,000 recorded cases each day. By 27 February 2022, there were14,491 cases recorded, with 305 patients in hospital (including five in intensive care)and one death.[38] From mid-February 2022 the Government was focussed on planning for itsfuture Covid-19 response after the Omicron wave had reached its peak. Central to thatwas a review of the CPF.[39] On 4 March 2022 Ministry of Health officials advised the Director-Generalthat physical distancing and capacity limits would remain necessary during theOmicron outbreak, but once the peak was over there would be a strong case torevaluate gathering limits. The advice said it was "too early to conclude that there isan insufficient public health rationale for CVCs to be used to prevent entry to certainpremises."[40] On 21 March 2022 the Minister reported back to Cabinet on the CPF reviewand sought decisions from Cabinet on the post-Omicron peak Covid-19 response. Therelevant Cabinet Paper noted that the elimination strategy and minimisation andprotection approach had prevented the worst impacts of Covid-19. Modellingindicated that hospitalisations were likely to peak sometime in mid to late March andwould decline thereafter.[41] Cabinet was informed that CVCs would have served their purpose once theOmicron peak subsided and that the significant limit on rights that they reflected wouldno longer be proportionate to the public health risks in the next phase. However, thePaper advised Cabinet that CVCs remained an important part of the "toolkit" for thosebusinesses and organisations who wished to continue using them and as part of a futureresponse if, for example, a more severe, immunity-evading variant emerged for whichthere is a new, effective vaccine. The Paper also advised that, to be effective, CVCsneed to be updated to reflect the roles of boosters and acquired immunity.[42] The Director-General's initial recommendation in early April 2022 was that theGovernment retain CVCs until the end of August 2022. However, the Director-General's final view was that CVCs could be removed and Cabinet agreed to removeCVCs from the CPF on 4 April 2022. That decision was informed by:(a) The Ministry of Health advice that, while two doses of the vaccineprovide some reduction in Omicron transmission, it was less so than forDelta.(b) New Zealand now had one of the highest vaccination rates in the world,with approximately 95 per cent of those aged 12 and over having hadtwo doses of an approved vaccine (88 per cent for Māori).Unvaccinated people therefore represented a smaller transmission riskthan when CVCs were introduced.(c) The increasing level of acquired immunity from the Omicron outbreak.(d) The fact that it would take five to six weeks to incorporate a boosterinto the CVC system and for the public to download their new CVC foruse, by which time New Zealand would likely be well past its Omicronpeak.[43] Cabinet also decided that, without CVCs and with public health risks from thevirus being lower after the peak, the CPF could be simplified as follows:(a) At Green: no capacity limits would apply.(b) At Orange: no capacity limits would apply, but allocated seating or onemetre physical distancing would be strongly encouraged, particularlyfor events of 500 or more people.(c) At Red: outdoor capacity limits would be removed. Indoor capacitylimits for gatherings were increased from up to 100 people to up to 200people, based on one metre physical distancing.[44] On 10 June 2022 the Minister made the COVID-19 Public Health Response(COVID-19 Vaccination Certificate) Order Revocation Order 2022 revoking theCOVID-19 Public Health Response (COVID-19 Vaccination Certificate) Order 2021,as well as making consequential amendments removing references to CVCs in theOrder, effective 17 June 2022. The requirement to use CVCs in some settings is thusremoved, but the traffic light system remains in place and the Red setting continues toprovide for a limit of 200 people at indoor gatherings.[45] That is the framework that remains in place as at the date of hearing and thisjudgment.[46] On 13 April 2022 New Zealand moved to the Orange setting of the TrafficLight Framework.Legal frameworkThe COVID-19 Public Health Response Act 2020[47] The COVID-19 Public Health Response Act 2020 (COVID-19 Act) came intoforce on 13 May 2020.[48] The COVID-19 Act authorises the Minister to make orders under s 11.Section 9(1) of the Act sets out the requirements for doing so.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:(a) the Minister must have had regard to advice from theDirector-General about—(i) the risks of the outbreak or spread of COVID-19; and(ii) the nature and extent of measures (whether voluntaryor enforceable) that are appropriate to address thoserisks; and(b) the Minister may have had regard to any decision by theGovernment on the level of public health measuresappropriate to respond to those risks and avoid, mitigate, orremedy the effects of the outbreak or spread of COVID-19(which decision may have taken into account any social,economic, or other factors); and(ba) the Minister must be satisfied that the order does not limit oris a justified limit on the rights and freedoms in theNew Zealand Bill of Rights Act 1990; and(c) the Minister—(i) must have consulted the Prime Minister, the Ministerof Justice, and the Minister of Health; and(ii) may have consulted any other Minister that theMinister (as defined in this Act) thinks fit; and(d) before making the order, the Minister must be satisfied thatthe order is appropriate to achieve the purpose of this Act.[49] The Minister may, in accordance with s 9, make an order under s 11 for anumber of purposes, including requiring persons to comply with any specifiedmeasures so as to contain, reduce, control, manage, or limit the risks of the outbreakor spread of Covid-19 and/or to avoid or mitigate the actual or potential adverse publichealth effects of the Covid-19 outbreak (whether direct or indirect).4 The s 11 powerincludes the power to make orders requiring persons to permit entry to places only incompliance with the specified measures.5[50] The Minister and the Director-General must keep any Covid-19 orders underreview.6 In addition, there are a number of other safeguards to ensure the Minister'spowers are not misused.74 COVID-19 Act, s 11(1)(a).5 Section 11(1)(b)(ia). Section 11(h)-(k) affords the Minister the power to regulate how CVCs areused, including the power to require persons to permit individuals to enter a place or receive aservice whether or not those individuals are vaccinated (under s 11(1)(h)).6 Section 14(5).7 For example, any order can be made only where there is an epidemic notice, a state of emergency,or a notice in the Gazette from the Prime Minister authorising the making of an order (s 8) (anepidemic notice is currently in force); orders must be gazetted and publicly notified 48 hours[51] Before making an order the Minister must be satisfied that the order does notlimit or is a justified limit on the rights and freedoms in the Bill of Rights Act.8COVID-19 Public Health Response (Protection Framework) Order 2021[52] On 30 November 2021, the Minister signed the COVID-19 Public HealthResponse (Protection Framework) Order 2021 (the Order). The Order came into effecton 2 December 2021.[53] The purpose of the Order is "to prevent, and limit the risk of, the outbreak orspread of COVID-19 and to otherwise support the purposes of the Act".9[54] Part 2 of the Order contains a range of public health measures which only applyonce they are specified in a COVID-19 response schedule that applies to a particularregion.10 The effect of this is that an activity is permitted unless an active scheduleexpressly limits it.[55] On 2 December 2021, when the Order took effect, there were two activeschedules:(a) The Red schedule was active for Northland, Auckland, Taupō andRotorua Lakes District, Kawerau, Whakatāne, Ōpōtiki Districts,Gisborne District, Wairoa District, Rangitīkei District, Whanganui andRuapehu Districts; and(b) The Orange schedule was active for the rest of New Zealand.[56] From 23 January 2022 the Red schedule was active for all of New Zealand,with the whole country moving to the Orange setting on 13 April 2022.before they come into force, unless the order is required to come into force urgently to prevent orcontain the outbreak or spread of Covid-19 (s 14(2) and (3)); orders are automatically revoked,unless approved by the House within a specified time (s 16); Parliament expressly removed anydoubt that the COVID-19 Act would limit access to the Court to challenge the lawfulness of anyorder (s 13(3)); and the COVID-19 Act itself must be continued by resolution of the House every90 days (s 3).8 Section 9(1)(ba).9 Order, above n 1, cl 3.10 Clauses 16 and 17.[57] The Order, as introduced, defined gathering:1113 Meaning of gatheringIn this order, gathering—(a) means people who are intermingling in a group butexcludes people who remain at least 2 metres awayfrom each other, so far as is reasonably practicable;and(b) includes—(i) a gathering to undertake voluntary or not-for-profit sporting, recreational, social, orcultural activities:(ii) a gathering to undertake community clubactivities (except activities that occur at thesame time and place as services providedunder a club licence under section 21 of theSale and Supply of Alcohol Act 2012):(iii) a faith-based gathering:(iv) a funeral or tangihanga:(v) a gathering held in a defined space orpremises of a workplace (other than a vehiclein use as part of a public transport service)that have been hired for the exclusive use ofthe gathering by a person (other than theperson who manages or controls the definedspace or premises); but(c) excludes a gathering for the purpose of a business orservice at—(i) office workplaces; and(ii) ordinary operations at retail; and(iii) gyms; and(iv) hearings at courts and tribunals; and(v) education entities at normal operations.[58] The definition encompassed private gatherings and specifically included faith-based gatherings.[59] In the Red setting12 there are to be no gatherings unless permitted,13 and apermitted gathering is one where:11 Clause 13.12 Schedule 7.13 Clause 42.(a) If it is a gathering of "CVC compliant" people, it is subject to a fixednumber of 100 and a one-metre physical distancing rule;14(b) If it is not a gathering of all "CVC compliant" people, it is subject to afixed number of 25 and a one-metre physical distancing rule.15[60] In the Orange setting,16 there are to be no gatherings unless permitted,17 and apermitted gathering is one where:(a) If it is a gathering of "CVC compliant" people, there is no fixed numberlimit;18(b) If it is not a gathering of all "CVC compliant" people, it is subject to afixed number of 50 and a one-metre physical distancing rule.19[61] In the Green setting,20 there are to be no gatherings unless permitted,21 and apermitted gathering is one where:(a) If it is a gathering of "CVC compliant" people, there is no fixed numberlimit;22(b) If it is not a gathering of all "CVC compliant" people, it is subject to afixed number of 100 and a one-metre physical distancing rule.23[62] A CVC means a COVID-19 vaccination certificate issued under cls 8 or 9 ofthe Order.24 "CVC compliant" was defined in the Order:256 When person is CVC compliant14 Clause 46.15 Clause 47.16 Schedule 6.17 Clause 42.18 Clause 46.19 Clause 47.20 Schedule 5.21 Clause 42.22 Clause 46.23 Clause 47.24 COVID-19 Public Health Response (COVID-19 Vaccination Certificate) Order 2021, cls 8 or 9.25 Order, above n 1, cl 6.(1) In this order, a person is CVC compliant if the person—(a) holds a valid CVC issued to that person; or(b) is under the age of 12 years and 3 months; or(c) is a student participating in an extra-curricular or a curricularactivity.(2) A person who is required under an applicable COVID-19 provision toensure or verify that a person (person A) is CVC compliant satisfiesthat requirement if the person reasonably considers that person A is,—(a) in relation to subclause (1)(b), under the age of 12 years and3 months; or(b) in relation to subclause (1)(c), a student participating in anextra-curricular or a curricular activity.[63] The government issued Guidelines for Places of Worship on 29 November202126 which explained the application of the Order in the context of places ofworship. Under the CPF restrictions, a religious group could choose to:(a) require CVCs for all services and offer larger services;(b) require CVCs for no services and offer smaller services;(c) offer both services operating with CVCs and services operating withoutCVCs (as long as spaces were cleaned between groups, there was nointermingling of the two groups, spaces used were ventilated, and thoseinvolved were clear on the distinction); or(d) if an organisation had multiple defined spaces in a venue, operatemultiple activities at once, with an activity requiring a CVC in onespace and an activity not requiring a CVC in another space (providedthere was no intermingling between groups).[64] As under the Alert Level system, online services remained an available optionfor religious groups to reach the members of their congregations.[65] On 4 April 2022, CVCs were removed from the CPF.26 The Guidelines were subsequently amended on 4 April 2022.The relevant right – s 15 Bill of Rights Act[66] The Bill of Rights Act affirms the fundamental freedoms and rights it sets out.27Those rights and freedoms "may be subject only to such reasonable limits prescribedby law as can be demonstrably justified in a free and democratic society".28[67] The Bill of Rights Act applies to acts of the legislature, executive and judiciaryand by any person or body in the performance of any public function, power, or dutyconferred or imposed on them in, by or pursuant to law. This means that the Bill ofRights applies to the Order. The COVID-19 Act explicitly recognises that, in makingan order under s 11, the Minister must be satisfied that the order does not limit or is ajustified limit on the rights and freedoms in the Bill of Rights Act.29[68] To the extent the provisions of the Order impose limits on the right to manifestone's religion, they must meet the "such reasonable limits prescribed by law as can bedemonstrably justified in a free and democratic society" requirement.30[69] The right the applicants say is engaged in this case is the right to manifest theirreligion:3115 Manifestation of religion and beliefEvery person has the right to manifest that person's religion or beliefin worship, observance, practice, or teaching, either individually or incommunity with others, and either in public or in private.[70] The right to religious freedom is directly protected by ss 13 and 15 of the Billof Rights Act.32 In this case, neither set of applicants contends that the right in s 13 –the freedom of thought, conscience, and religion – has been limited.[71] The rights to freedom of religion and manifestation of that religion are alsoprotected under art 18(1) of the International Covenant on Civil and Political Rights27 New Zealand Bill of Rights Act 1990, s 2.28 Section 5.29 Section 9(1)(ba) of the COVID-19 Act, above n 4.30 Bill of Rights Act, above n 27, s 5.31 Section 15.32 Sections 19 (Freedom from discrimination) and 20 (Rights of minorities) may also be relevant insome situations.(ICCPR)33 and art 9(1) of the European Convention on Human Rights (ECHR).34Article 18.3 ICCPR and art 9(2) ECHR explicitly state that the freedom to manifestone's religious beliefs can be limited in the interest of public safety, for the protectionof public order, health or morals, or for the protection of the rights and freedoms ofothers.[72] While s 15 of the Bill of Rights Act does not contain an explicit limitation inthe terms of arts 9(2) and 18.3, the Bill of Rights Act affirms New Zealand'scommitment to the ICCPR and those provisions are relevant when consideringjustified limits to s 15.[73] To date, there is little New Zealand case law on the rights to freedom ofthought, conscience, religion and belief and to manifest religion or belief.[74] In New Zealand Health Professionals Alliance Inc v Attorney-General,35 theplaintiffs (health practitioners) challenged s 14 of the Contraception, Sterilisation andAbortion Act 1977 (CSAA). The provisions require the health professional to tell thepatient of their conscientious objection to providing assistance to a patient in regardto abortion services or related advice. In addition, using the list maintained under s 18of the CSAA, the health professional must identify the closest provider of abortionservices to that person's practice, and tell the patient how to access the contact detailsof that provider. The applicants in that case said the s 14 requirement infringed theirrights under ss 13 and 15 of the Bill of Rights Act. Justice Ellis found that the s 13right to freedom of thought, conscience and religion was not engaged and that therefusal to provide the information required by s 14 did not constitute manifesting theclaimants' beliefs in observance or practice, as required by s 15.[75] The Court went on to find that, even if s 15 did protect the applicants' freedomconscientiously to refuse to comply with s 14 of the CSAA, s 14 did not interfere withthat freedom.33 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976).34 Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221(opened for signature 4 November 1950, entered into force 3 September 1953).35 New Zealand Health Professionals Alliance Inc v Attorney-General [2021] NZHC 2510.[76] In Yardley v Minister for Workplace Relations and Safety, Cooke J consideredan application for judicial review brought by Police and Defence Force workers whodid not wish to receive the Covid-19 vaccination and faced termination of theiremployment if they did not do so.36 The applicants alleged that the requirement to bevaccinated placed unjustified limits on a number of their rights protected by the Billof Rights Act, including the s 15 right to manifest religion or belief. Justice Cookeaccepted the applicants' submission that an obligation to receive the vaccine which aperson objects to because it has been tested on cells derived from a human foetus,potentially an aborted foetus, does involve a limitation on the manifestation of areligious belief in the "observance, practice, or teaching" of religion as contemplatedby s 15:37 "It is grounded in a core principle of the particular Christian religion andthe objection to abortion." A justified limits analysis was therefore required unders 5. However, Cooke J was not satisfied of the applicants' broader claims thatrequiring vaccination is inconsistent with the manifestation of religion or belief arisingfrom the concept of individual bodily integrity, personal autonomy or similar Christianviews.Are the applicants' beliefs such that their manifestation is protected by s 15?[77] If sincerity of belief is demonstrated in relation to a practice that has a nexuswith religion, it should trigger the protection of the right to freedom to manifestreligion.38[78] The existence and genuineness of the applicants' beliefs is not in issue in theseproceedings. While some aspects of those beliefs vary as between the two groups ofapplicants, in general terms the relevant belief is that the physical gathering togetherof members of a congregation for worship is a matter of religious obligation. Theexpert evidence for the Orewa applicants from Dr Matthew Flannagan, emphasises theimportance to Christians of assembling in community. His evidence is that Christians,including the Orewa applicant churches, believe they are commanded to assembletogether, as a community, to engage in mutual teaching, exhortation, corporate36 Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291 at [47]-[52].37 At [49].38 Syndicat Northcrest v Amselem 2004 SCC 47, [2004] 2 SCR 551 at [56]-[57] and [69].worship and participation in the sacraments with one another. The Christian Orewaapplicants believe this to be a duty commanded by God.[79] The Orewa applicants say that the Order prohibited the Church and everyindividual in the Church from assembling in community with each other as their faithcompels them. All options in the Guidelines required segregation or exclusion in someform. The Orewa Christian applicants say that it is not sufficient that the Church wasable to serve its community individually, at different times and in different places.That does not amount to manifestation of their religion in community with others, inaccordance with their s 15 right.[80] Dr Flannagan also gives evidence that, in Christian theology, the practice ofexcluding people from the communal fellowship and worship of the Church isexcommunication. In his view, the effect of the Order was to requireexcommunication, which is a serious infringement on the separation of Church andState.[81] For the Muslim Orewa applicants, Imam Youssef's evidence explained that, inIslam, mosques are places where Muslims gather together. Devout Muslims areexpected to attend five daily prayers at the mosque, each conducted within a specificwindow of time, and each Friday there is a midday congregational prayer service. Formany mosques, including the applicant mosques, running segregated prayers andservices is logistically impossible given the time-windows within which each prayermeeting and service must be conducted, the size of the mosque leadership teams andthe fact landlords were given the power to choose to impose an exclusion policy onreligious tenants.39 Imam Youssef's evidence is that the obligation to take part in theFriday congregational prayer cannot be undertaken at home.[82] The witnesses for the FTBC applicants describe three interrelated religiousbeliefs and practices they say are affected by the Order:(a) Gathering together for worship as one family is an essential element oftheir faith.39 A restriction imposed by private landlords is not part of the Court's consideration in this case.(b) They are prohibited by their faith from making non-biblical distinctionsbetween members of the Church.(c) Certain religious practices can only be undertaken in the presence ofthe whole congregation.[83] As to the first, the FTBC applicants believe that Church members must be freeto gather together every Sunday as one family. They are commanded to do so by theBible and to not do so is sin. The applicants believe that their Sunday worship cannotbe conducted remotely. They point to Philip v Scottish Ministers, where the Courtaccepted that "the essential physical element of these aspects of their faith is absentfrom virtual, internet events".40[84] In relation to the second, the FTBC applicants believe they are not permittedto treat their members differently. The Church is one, entire body and the congregantsmust gather together as one people. Their faith prohibits segregation and they are notto discriminate. They see the use of different services for vaccinated and unvaccinatedmembers as a direct violation of that core tenet of their religion.[85] Third, the FTBC applicants say there are certain religious practices that requirethe presence of the whole congregation – the sacraments of communion and baptismare to be received physically, in the presence of the whole, physically gathered Church.Practices such as communion may only be carried out when the body is gatheredtogether.[86] The FTBC applicants say that the effect of the Order has been to prevent, forthe period 2 December 2021 to 4 April 2022, a significant number of members of eachcongregation from practising their faith, from fulfilling their duty to God, from beingtogether with their Church family to pray, sing, have fellowship and observe thesacraments. In addition, the effect of the Order in limiting the number of people whocan attend worship has been to prevent altogether those religious practices that requirethe whole Church to be gathered.40 Philip v Scottish Ministers [2021] CSOH 32 (Outer House) at [5], [62] and [95].[87] The FTBC witnesses gave evidence that the ramifications of those limits havebeen spiritually profoundly damaging.[88] The respondents acknowledge the sincerity and importance of the applicants'beliefs. Professor Paul Trebilco, a New Testament theology expert, provided expertevidence for the respondents. He does not dispute that the applicants' views aregenuinely held, acknowledging that: within the Christian Churches of Aotearoa New Zealand, there are a rangeof different interpretations of the matters discussed below, including the mostsincerely held views of Dr Flannagan and the Free to Be Church Trustees.[89] However, Professor Trebilco provides a contrary theological position toDr Flannagan's expert evidence and the fact evidence of the FTBC deponents, onwhether Christians are biblically required to gather together, in person, as a wholeChurch without distinction. Professor Trebilco also takes issue with Dr Flannagan'sevidence about excommunication. He says: the unvaccinated are not actually being 'removed' or 'excommunicated'from any congregation by CVCs. Rather, the number of other believers whoare part of a particular congregation with whom they can interact is beinglimited to 25 or 50. They are still part of the congregation, albeit not able tointeract with all other members for a time.[90] Professor Trebilco goes on to say that in the New Testament, the Church hasfull say over who is part of a Church and who is not. The State cannot"excommunicate" someone from Church; the State is not saying unvaccinatedcongregants are not part of a particular church. It is simply saying that suchcongregants must meet in a group of maximum size, for a period of time.[91] The FTBC applicants say Professor Trebilco's evidence is misconceivedbecause it challenges the "correctness" or "validity" of their religious beliefs. Theysay they are not required to establish that the observance of a religious practice orbelief in question is a mandatory doctrine of faith, or is perceived by the applicants asbeing mandatory,41 or that their belief is an objective or universally-recognisedreligious principle.41 Syndicat Northquest v Amselem, above n 38, at [47]: "an inquiry into the mandatory nature of analleged religious practice is not only inappropriate, it is plagued with difficulties."[92] They rely on Amselem, where the majority of the Supreme Court of Canadasaid:42Claimants seeking to invoke freedom of religion should not need to prove theobjective validity of their beliefs in that their beliefs are objectivelyrecognized as valid by other members of the same religion, nor is such aninquiry appropriate for courts to make.A person must show sincerity of belief and not that a particular belief is"valid".A court is in no position to question the validity of a religious belief it is notthe role of this Court to decide what any particular religion believes.[93] Similarly, in Yardley v Minister for Workplace Relations and Safety, the Courtsaid:43 the fact that others observing the same religion do not agree with that stancedoes not mean that the stance does not involve the observance of a religiousbelief.Preliminary questionsDeference[94] The respondents say the Court should afford the Minister a substantial marginof appreciation where, as here, he made an Order regulating activities with the benefitof substantial scientific expert advice, and having regard to the impact on the rights ofaffected communities.[95] The FTBC applicants, on the other hand, advocate for the Court's "expansivesupervision". They say that ultimately, whether the measures in question weredemonstrably justified is a question of law for the Court to decide and, accordingly,there can be no question of deferring to the views of the Executive.44[96] A margin of appreciation, or "deference", generally signifies that the Court willshow some restraint when scrutinising the Executive's policy choices.42 At [43]-[44].43 Yardley v Minister for Workplace Relations and Safety, above n 36, at [47] and [49].44 Four Aviation Security Service Employees v Minister of Covid-19 Response [2021] NZHC 3012at [80] and [82].[97] The role of the Court in this case is to decide whether the restrictions in theOrder are a demonstrably justified limitation on the applicants' rights under s 5 of theBill of Rights Act. It is a matter of law. But, while the Court should not abdicate thisrole even in exceptional circumstances, the oversight role should be conductedcarefully where, as here, the expert advice was a critical factor in the adoption of theCVC-related restrictions and the evidence before the Court is also largely expertevidence.[98] The degree of deference to be afforded is related to the appropriate approachto the evidence. Where it is established or admitted that the relevant right is in factlimited, the burden then falls on the Crown to put forward evidence that the limitationis demonstrably justified. If the applicant then wishes to argue that what the Crown'sevidence establishes is factually wrong, it has the burden to persuade the Court ofthis.45[99] Dr Ashley Bloomfield, the Director-General of Health and Chief Executive ofthe Ministry of Health, and Dr Ian Town, the Chief Science Advisor at the Ministry ofHealth, have given evidence in this case and the underlying information to which theyrefer, forms the evidential basis for the respondents' argument that the Order isdemonstrably justified. As I will come to, while Dr Bloomfield was the principalpublic face of the advice to the government, he and Dr Town in turn relied on a multi-layered system of information and advice, across a broad range of disciplines andexpertise.[100] The respondents have also filed expert theological evidence fromProfessor Trebilco.[101] The Orewa applicants rely on expert theological evidence from Dr Flannaganand expert medical evidence from Professor Flanigan to argue that the Crown'sevidence is wrong. Professor Flanigan is a Professor of Medicine at Brown University,Providence, Rhode Island, in the United States. He specialises in serious infectiousdiseases and public health. Dr Flannagan is a theologian, moral philosopher andteacher from Rodney, New Zealand. The FTBC applicants have not filed any expert45 At [86].evidence to contest the respondents' evidence but do rely, to some extent, on ProfessorFlanigan's evidence.[102] The approach I adopt is to consider the expert views of Dr Bloomfield andDr Town and the underlying material to which they refer, testing or challenging theirviews against the expert opinions put forward by Professor Flanigan,46 noting thatnone of the evidence was tested by cross-examination. Ultimately, the Court has todetermine the legal question of whether the measures were demonstrably justifiedagainst that evidential background.[103] As the Court of Queen's Bench of Manitoba said in Gateway Bible BaptistChurch,47 it is not an abdication of the Court's responsibility to afford an appropriatemeasure of deference to the technical expertise of those advising the Minister, inrecognition of the expertise of those specialist positions, together with the suddenemergence of Covid-19 as a novel and deadly disease:48 where a sufficient evidentiary foundation has been provided in a case likethe present, the determination of whether any limits on rights areconstitutionally defensible is a determination that should be guided not onlyby the rigours of the existing legal tests, but as well, by a requisite judicialhumility that comes from acknowledging that courts do not have thespecialized expertise to casually second guess the decisions of public healthofficials, which decisions are otherwise supported in the evidence.[104] The relevance of the evidence must be tested by reference to what precisely isin issue in this proceeding. The applicants have challenged some only of therestrictions imposed during the course of the pandemic. The timeframe is relevant,too. The Covid-19 pandemic was and is fluid, evolving and threatening. The situationat the start of the pandemic in March 2020 was considerably different from the positionin January 2022, when the Omicron variant was first identified in the community.[105] I conclude that it is appropriate to give some weight to the Minister'sjudgement to impose restrictions on a temporary basis, in a rapidly evolving46 See, for example, Four Aviation Security Service Employees v Minister of Covid-19 Response,above n 44, at [88].47 Gateway Bible Baptist Church [2021] MBQB 219 at [283].48 At [292].emergency, informed by expert advice involving predictive assessments of risk,49 andwhere the "costs of failure" would have serious consequences for the entirecommunity.[106] As the Ontario Superior Court of Justice put it in Ontario v Trinity BibleChapel, a case about the constitutional validity of religious gathering restrictionsimposed in the context of Covid-19:50This case calls for even greater deference to government decision making.Public officials were faced with an unprecedented public health emergencythat foretold of serious illness and death. Ontario was called upon to protectpublic health, while respecting a host of other interests and considerations.Restrictive measures aimed at curbing transmission of the virus wouldnecessarily impact on social, commercial, and religious activities. The task athand called for a careful balancing of competing considerations, informed byan evolving body of medical and scientific opinion.It is frankly difficult to imagine a more compelling and challengingequation This mix of conflicting interests and perspectives, centred on atangible threat to public health, is a textbook recipe for deferential review.[107] Having said that, it is important to note that this judgment is not a validationor a second guessing of the government's policy choices and the adequacy or efficacyof its public health measures put in place to contain Covid-19.51 The Court's focus ison the legality of the specific portions of the Order in question.The precautionary principle[108] There is a further, overlapping consideration – whether the precautionaryprinciple is relevant, given the subject matter of the measures in the Order that arechallenged.49 R (Lord Carlile of Berriew and Ors) v Secretary of State for the Home Department [2014] UKSC60, [2014] 3 WLR 1404 at [32] (per Lord Sumption), [67]-[68], [72] (per Lord Neuberger), [98](per Baroness Hale).50 Ontario v Trinity Bible Chapel [2022] ONSC 1344 at [126]-[127].51 Gateway Bible Baptist Church v Manitoba, above n 47, at [20].[109] The precautionary principle can be summed up in the phrase "reasonable actionto reduce risk should not await scientific certainty".52[110] One of the principal justifications for the precautionary approach is the healthrisk to the wider public. As the Federal Court of Ontario said in Spencer v Attorney-General of Canada, in relation to restricting entry into Canada in the context of theCovid-19 pandemic:53 The precautionary principle is a foundational approach to decision-makingunder uncertainty, that points to the importance of acting on the best availableinformation to protect the health of Canadians. The Order is a public healthmeasure that was adopted based on available scientific evidence from Canadaand abroad, and it gives effect to the precautionary principle in a manner thatreflects the Government of Canada's overall assessment of the risks posed bythe previously circulating virus and variants, and the lack of alternatives tomitigate it given the current state of knowledge of the virus.Viewed in light of the precautionary principle, the fact that the Order may notprovide perfect protection is not particularly significant. The evidence showsthat the challenged measures are a rational response to a real and imminentthreat to public health, and any temporary suspension of them wouldinevitably reduce the effectiveness of this additional layer of protection. This,in turn, would have a significant – perhaps deadly – effect on the widerCanadian public, based on the experience thus far.[111] The Order in question in this case was promulgated and justified on a publichealth need to suppress the spread of the Covid-19 virus and minimise its impact. Theevidence for the respondents is that the government's health response to Covid-19followed the precautionary principle. The respondents say that, in the context ofmeasures taken for public health purposes, the Court should recognise the applicationof that principle.[112] The FTBC applicants say that a broad interpretation of the precautionaryprinciple would run counter to the requirement for the Court to apply a higher level ofscrutiny in this case. To the extent the principle is applicable at all, it should beinterpreted and applied narrowly. Counsel refers to the report of the Canadian SARSCommission54 in support of a submission that, applied to this case, the precautionary52 Archie Campbell The SARS Commission Final Report, Spring of Fear (December 2006) at 8; andKatie Webber "The Precautionary Principle and Judicial Decision Making in the COVID-19Pandemic" (2022) 29 AJ Admin L 43 at 44 and footnote 9.53 Spencer v Attorney-General of Canada [2021] FC 361 at [113]-[114].54 The SARS Commission Final Report, Spring of Fear, above n 52, at 8.principle meant that the Minister should have acted to reduce or remove the relevantrestrictions when it first became apparent that the vaccine had reduced effectivenessagainst Omicron.[113] There is an overlap between the concept of deference and the precautionaryprinciple. Recognising the precautionary principle inevitably serves to increase themargin of appreciation afforded to the government when the Court comes to considerwhether the restrictions in question were the least impairing, effective option.[114] I acknowledge that the Court must be careful to distinguish between the roleof the precautionary principle in guiding executive action, and the role of the courts invigorously assessing government action for legality.55 But, having said that, therelevance of the precautionary principle has been recognised in other New Zealanddecisions in the Covid-19 context56 and I accept that it is appropriate to recognise theoperation of the principle in the decision-making that led to the Order. What thatmeans is that, in the absence of full scientific evidence about Covid-19, the Ministerwas entitled to take a cautious approach in considering whether or not to impose,reduce or remove restrictions. That approach, rather than the approach advocated bythe FTBC applicants, is consistent with the approach of the SARS Commission:57The importance of the precautionary principle that reasonable efforts to reducerisk need not await scientific proof was demonstrated over and over duringSARS We should be driven by the precautionary principle that reasonablesteps to reduce risk should not await scientific certainty.[115] The Commission endorsed the precautionary approach of, for example, theVancouver General Hospital which, when dealing with SARS, an undiagnosedrespiratory illness, automatically went to the highest level of precautions for its healthworkers and then scaled down as the situation was clarified.5855 Webber, above n 52, at 43 and footnote 3.56 Grounded Kiwis Group Incorporated v Minister of Health [2022] NZHC 832 at [174]; Yardley vMinister for Workplace Relations and Safety, above n 36, at [64] and [94]; Four Aviation SecurityService Employees v Minister of Covid-19 Response above n 44, at [110]-[111].57 The SARS Commission Final Report, Spring of Fear, above n 52, at 12.58 At 13 and 25.Approach to the Bill of Rights Act analysis[116] The decisive question in both applications before the Court is whether thelimitation of fundamental rights is demonstrably justified in a free and democraticsociety given the public interest sought to be advanced by the Order.[117] Section 5 of the Bill of Rights Act provides:5 Justified limitationsSubject to section 4, the rights and freedoms contained in this Bill ofRights may be subject only to such reasonable limits prescribed bylaw as can be demonstrably justified in a free and democratic society.[118] The parties accept that the appropriate approach in considering this question isas set out by the Supreme Court in Hansen v R.59 The Crown must show that anylimiting measure:(a) is prescribed by law;(b) serves a sufficiently important objective or purpose to warrant limitingthe protected right or freedom;(c) the means chosen to achieve the objective must be proportionate to theimportance of the objective. This has several elements:(i) rational connection – is the limiting measure rationallyconnected with its purpose?(ii) minimal impairment – does the limiting measure impair theright or freedom no more than is reasonably necessary toachieve that purpose?59 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1. The Court adapted the approach of the CanadianSupreme Court in R v Oakes [1986] 1 SCR 103.(iii) proportional effect – the benefits achieved by the measure mustnot be outweighed by the significance of the limitation of theright.[119] This is not a rigid test. As Cooke J noted in NZDSOS v Minister for Covid-19Response,60 rather, it is a framework for assessing whether the measure isdemonstrably justified in a free and democratic society. Many of the questions shadeinto one another.Prescribed by law; restrictions amount to a limitation[120] There is no dispute that the restrictions challenged by the applicants arecontained in the Order and are clearly prescribed by law. The respondents also acceptthat the CVC-related restriction did limit the applicants' right to manifest their religion.Do the limits serve a sufficiently important purpose?[121] The limit on the applicants' s 15 rights must serve a sufficiently importantpurpose, warranting the overriding of those rights.[122] As discussed above, the purpose is set out in the Order itself. Clause 3 of theOrder provides:3 PurposeThe purpose of this order is to prevent, and limit the risk of, theoutbreak or spread of COVID-19 and to otherwise support thepurposes of the Act.[123] Clause 3 of the Order, in turn, refers to the purposes of the COVID-19 Act, ins 4:4 PurposeThe purpose of this Act is to support a public health response toCOVID-19 that—(a) prevents, and limits the risk of, the outbreak or spread ofCOVID-19 (taking into account the infectious nature andpotential for asymptomatic transmission of COVID-19); and60 NZDSOS v Minister for Covid-19 Response [2022] NZHC 716, at [68].(b) avoids, mitigates, or remedies the actual or potential adverseeffects of the COVID-19 outbreak (whether direct orindirect); and(c) is co-ordinated, orderly, and proportionate; and(ca) allows social, economic, and other factors to be taken intoaccount where it is relevant to do so; and(cb) is economically sustainable and allows for the recovery ofMIQF costs; and(d) has enforceable measures, in addition to the relevantvoluntary measures and public health and other guidance thatalso support that response.[124] The Orewa applicants accept that the sufficiently important purpose test is met.The FTBC applicants originally pleaded that the limiting measures do not serve asufficiently important purpose to justify curtailment of the s 15 right, but by the timeof the hearing no longer challenged that point.[125] Nevertheless, for the sake of completeness, I consider the stated purpose of therestrictions. The CPF was developed in the context of a Delta outbreak in thecommunity. The purpose of the CPF was to minimise its spread, to protect thevulnerable and to avoid the health system being overwhelmed. The principal rationalefor the introduction of CVCs and related gathering limits in the CPF was the advicefrom the Director-General that, because of the effectiveness of the vaccine in limitingthe risk of infection, transmission and hospitalisation with the virus, the use of CVCswould mitigate the risk of Covid-19 outbreaks and protect vulnerable populations byreducing the risk of Covid-19 spread. An incidental benefit was the possibility thatthe use of CVCs could help to boost vaccination rates. Gathering limits self-evidentlylimit the ability of the virus to spread in the community.[126] These purposes were sufficiently important to justify some curtailment of theright to manifest religion.The applicants' challenges[127] The two applicant groups advanced somewhat different grounds in support oftheir submissions that the Minister could not have been satisfied that the Order was ajustified limit on the right to manifest their religion and belief.[128] The Orewa applicants challenge all the capacity restrictions (CVCs andgathering limits) in the Order as introduced.[129] The FTBC applicants also challenge the restrictions in the Order as introduced,but primarily focus on the CVC-based restrictions once Omicron entered theNew Zealand community.CVC-related restrictions as introduced[130] As discussed above,61 when the Order was introduced it provided that themaximum capacity limit for gatherings, which included faith-based gatherings,without using CVCs was 25 at Red, 50 at Orange and 100 at Green. Using CVCs,gatherings were limited to a maximum of 100 at Red, with no limits at Orange andGreen.[131] The Orewa applicants challenge the restrictions under two heads. First, theysay that, as introduced, the Order imposed limitations that were an unjustified limit ontheir s 15 rights (and continue to be so because of the gathering restriction that remainsin the Order – at Red, a limit of 200 people at indoor gatherings) (the Bill of Rightsclaim).[132] Second, they say that the Minister failed to understand the nature of the s 15right. This second aspect is framed as the Minister misdirecting himself and/or erringin law (the error of law claim).[133] The two claims are brought as separate causes of action, but there is a degreeof overlap in the evidence and analysis relating to each.[134] While it is not framed in quite this way, the essence of the Orewa applicants'Bill of Rights claim is that the restrictions were not rationally connected with theirpurpose and/or limited their s 15 rights more than was reasonably necessary to achievetheir purpose.61 At [59] to [61].Rational connection[135] The first limb under the proportionality test is whether the limiting measure isrationally connected with its purpose. In order to establish a rational connectionbetween the limiting measure and its purpose, it is necessary only to show that thereis a "causal connection between the infringement and the benefits sought 'on the basisof reason or logic'".62 It must be shown that it is "reasonable to suppose" the limitingmeasure will achieve its purpose.63The scientific evidence[136] Throughout the course of the Covid-19 pandemic, the New Zealandgovernment has received scientific advice from a range of expert advisors and bodies.The nature and extent of that expertise is covered in the evidence of Dr Bloomfieldand Dr Town.[137] Dr Ashley Bloomfield was at all relevant times the Director-General of Healthand the Chief Executive of the Ministry of Health. Dr Bloomfield is a specialist inpublic health medicine.[138] Dr Bloomfield discusses the effects of Covid-19 from a public healthperspective. He notes that, while most who contract Covid-19 will recover fully overtime, many suffer from ongoing and long-lasting health effects. A proportion of thosewho contract the virus will require hospitalisation, including treatment from aventilator and/or in an intensive care unit (ICU), which is a finite resource to treatthose who suffer serious health effects from a range of medical conditions or injuries.[139] The disease has the most severe effects on vulnerable members of thecommunity such as the elderly and those with other health problems or co-morbidities.People with health conditions which make them vulnerable to severe effects of Covid-19 will often be classed as disabled. The virus has had a disproportionate impact onMāori and Pasifika communities.62 Carter v Canada (Attorney-General) 2015 SCC 5, [2015] 1 SCR 331 at [99] citing RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199 at [153].63 Alberta v Hutterian Brethren of Wilson Colony 2009 SCC 37, [2009] 2 SCR 567 at [48].[140] Modelling papers sought by the Ministry of Health showed that uncheckedcommunity transmission of Covid-19 would quickly overwhelm the health system andNew Zealand would be faced with a large number of deaths.[141] Dr Bloomfield's evidence also covers New Zealand's experience to date withthe Omicron variant, which is discussed below in the context of the FTBC claim.[142] Dr Ian Town is the Chief Science Advisor at the Ministry of Health. Hisspeciality is in evaluating scientific evidence and helping ensure that credible scienceis at the core of decision-making. Dr Town chairs the COVID-19 Technical AdvisoryGroup (TAG) and the COVID-19 Vaccine Technical Advisory Group (CV-TAG) at theMinistry of Health. Both TAG and CV-TAG include a number of immunologists,infectious disease specialists, as well as scientists from other disciplines.[143] Dr Town is also a member of several other advisory groups within the Ministryof Health, including the COVID-19 Testing Technical Advisory Group, the COVID-19 Therapeutics Technical Advisory Group and the COVID-19 Clinical OversightGroup. Dr Town notes that these groups comprise external medical and scientificexperts who scrutinise and distil the available evidence and provide advice to theDirector-General.[144] Dr Town's work is supported by scientists within the Ministry of Health'sScientific and Technical Advisory Team, which includes experienced immunologistsand epidemiologists. Much of the advice provided by Dr Town in relation totransmission of Covid-19 and vaccination has been provided in his capacity as theChair of TAG and CV-TAG. Dr Town says that this ensures that a range of expertopinion and experience is brought to bear on the issues of minimising transmissionand on the safety and effectiveness of the vaccine. This stream of advice is distinctfrom, but complements and informs, the wider public health advice provided by theDirector-General and the Director of Public Health. Specifically, Dr Town providedadvice to Dr Bloomfield about the benefits and risks of the Pfizer vaccine which, inturn, informed the broader public health advice provided by Dr Bloomfield to theGovernment.[145] A further layer of independent advice is provided with a COVID-19Independent Continuous Review, Improvement and Advice Group (CICRIAG) andthe Strategic COVID-19 Public Health Advisory Group (SPHAG) whose membershipincludes senior scientists in relevant disciplines established to provide the Governmentwith independent expert advice. Both of those groups provide advice directly toMinisters rather than to the Ministry of Health.[146] The Scientific and Technical Advisory team at the Ministry of Health monitorscommunications from WHO and other international medical bodies, as well as fromthe relevant scientific institutions of other governments, concerning vaccines, andprovides CV-TAG with updates on relevant information for its discussions andrecommendations. Examples of such international bodies include the AustralianTechnical Advisory Group on Immunisation, the United Kingdom Health SecurityAgency, the United States Centre for Disease Control (CDC) and the European Centrefor Disease Prevention & Control.[147] Two aspects of the evidence are essential to an analysis of the claims: the natureof the Covid-19 virus and how the vaccine works against it, and the risk-assessmentof faith-based gatherings.Covid-19[148] The nature of the Covid-19 virus is explained in detail in Dr Town's evidenceand, to a lesser extent in the evidence of Professor Flanigan for the Orewa applicants.Where there is a difference in their evidence, I set that out.[149] SARS-CoV-2 is a respiratory pathogen. Transmission is through airbornedroplets containing virus exhaled by an infectious individual. Transmission can occurwithout symptoms, such as sneezing and coughing and can occur through breathing,talking, singing or laughing. These droplets vary in size and the amount of virus theycontain. Larger droplets fall to the ground soon after being exhaled, under theinfluence of gravity, whereas smaller droplets may remain suspended in air for aconsiderable period of time. That means that, while transmission risk is greatest whenin close proximity to an infected person for an extended period of time, especiallyindoors, infection can also occur after brief contact or from movement through thesame space without contact.[150] Dr Town's evidence is that the risk of transmission varies with differentrespiratory activities. Quiet breathing is associated with the lowest rate oftransmission. Loud vocalising, in particular singing, is associated with much higherrates of transmission and of transmission to individuals much further away, due toairborne transmission of virus through aerosols.[151] Prevention of transmission is achieved by either decreasing the risk of aninfectious individual exhaling the virus in the presence of susceptible contacts, or byincreasing the protection of individuals from being infected. Dr Town's view is thatthe former is the most effective mechanism to prevent transmission and includesprevention of infection of individuals by vaccination (decreasing the number of cases),gathering limits (decreasing the number of exposure events), and separation of casesand contacts (staying at home if sick). However, while transmission risk can bereduced by a range of public health measures, the risk cannot be entirely eliminated.[152] Dr Town comments on Professor Flanigan's evidence and notes that he doesnot discuss the role of airborne transmission in any detail. Professor Flanigan impliesit is safe to inhale a small number of viral particles (or virions) as this will not resultin infection. Dr Town responds that, while this may be technically correct, in practice,it is impossible to estimate or implement. While there is a minimum infective dose, itis not possible to control how many viral particles are being expelled. Allowing peopleto inhale a "safe" dose of virions cannot be implemented as a means to reduce othercontrol measures. Every case must be considered to be infectious during theirinfection and even a relatively small dose of virus, substantially less than the 1000virions quoted by Professor Flanigan, may cause infection. This was confirmed in thefirst SARS-CoV-2 Human Challenge Trial (a trial in which humans were deliberatelyinfected under controlled conditions in order to better study the disease's course).6464 Ben Killingley and others "Safety, tolerability and viral kinetics during SARS-CoV-2 humanchallenge in young adults" (2022) Nature Medicine 1031.Asymptomatic and pre-symptomatic transmission[153] Professor Flanigan suggests that individuals who are asymptomatic are lesslikely to transmit Covid-19 to others. Dr Town discusses that proposition in hisdetailed evidence about asymptomatic and pre-symptomatic transmission.[154] Asymptomatic transmission refers to transmission from those who are infectedbut never show symptoms. Pre-symptomatic transmission refers to transmission fromthose who are early in infection, before the onset of symptoms.[155] Pre-symptomatic transmission is well-established and is likely to be asignificant cause of spread of the virus. Pre-symptomatic individuals are highlyinfectious. People can transmit the virus up to two days before they have symptoms.[156] Asymptomatic transmission has been established, but Dr Town's evidence isthat measuring the extent can be challenging and disagreement exists about theproportion of asymptomatic infections. Studies strongly suggest that Omicron has amuch higher rate of asymptomatic carriage than other variants of concern, and theresulting high prevalence of asymptomatic infection is likely a major factor in the rapidspread of the variant globally.[157] Dr Town's view is that the term "asymptomatic" should really only be appliedto a person who never develops symptoms during their illness. All individuals withSARS-CoV-2 infection will be asymptomatic initially and after they recover, but maybe highly symptomatic between.[158] The difference in infectiousness of asymptomatic individuals compared tosymptomatic individuals at any stage of the pandemic is unclear. Importantly, thesymptomatic status is not the only variable which influences infectiousness, withsubstantial variation in viral load both among those who are symptomatic and amongthose who are asymptomatic. The Human Challenge Trial did not identify a differencein infectious viral load between symptomatic and asymptomatic individuals.Asymptomatic individuals are much less likely to be aware of their infection, seektesting or even test positive with some testing methods, and will therefore not isolateor take other precautions.Effectiveness of the Pfizer vaccine[159] The primary rationale for the CVC-related restrictions was the Director-General's advice that, because of the effectiveness of the vaccine, the use of CVCswould mitigate the risk of spread of the virus.[160] Dr Town's evidence explains the three ways in which the vaccine is effective.The vaccine is able to:(a) prevent infection;(b) prevent severe illness and, at worst, death (referred to as the ability ofthe vaccine to prevent 'hospitalisation'); and(c) prevent onward transmission from those who do become infected.[161] The relationship between these three benefits of vaccination is at the heart ofits overall effectiveness. As Dr Town explains, by reducing infections among thosewho have received vaccinations, the vaccine also reduces transmission (self-evidently,the uninfected will not transmit) and hospitalisations (the uninfected will not suffersevere illness). When considering the impact of the vaccine in reducing communityspread and severe illness it is necessary to take into account its effect in reducinginfection, before also taking into account its effect in reducing onwards transmissionand hospitalisation among those who, despite being vaccinated, have become infected.[162] Dr Town gave evidence about the effectiveness of the vaccine (vaccineeffectiveness or VE) in relation to each of the Delta and Omicron variants of Covid-19.[163] In relation to Delta:(a) The vaccine is 79-93 per cent effective at preventing Delta infectionduring the first one to two months after receiving the second dose ofthe vaccine (including both symptomatic and asymptomatic infections).The vaccine is 53-75 per cent effective at preventing infection morethan three to four months after receiving the second dose.(b) In relation to symptomatic infection, in the first one to two weeksimmediately after the second dose, the vaccine is 92-93 per centeffective at preventing symptomatic Delta. More than three to fourmonths after the second dose, the vaccine is 56-78 per cent effective atpreventing symptomatic Delta infection.(c) While vaccine effectiveness wanes over time, protection against severedisease remains high for at least five to six months.[164] The effectiveness of two doses of the vaccine in preventing hospitalisation anddeath from Delta has been shown to be about 99.7 per cent. The effectiveness of twodoses of the vaccine against death is 98 per cent at two to nine weeks after vaccinationand 90 per cent at 20 or more weeks after vaccination.[165] The vaccine reduces transmission of the Delta variant by approximately 30-50per cent. As Dr Town notes, that reduction in transmission is in addition to individualprotection against infection. This means that vaccination significantly reduces thechance of becoming infected and substantially decreases the likelihood of transmittingthe virus if a vaccinated person does become infected.[166] A booster dose of the Pfizer vaccine restores waning antibodies to levels thatare similar to immediately after the primary course.[167] Dr Town's evidence as to VE in relation to the Omicron variant is discussed at[244]-[250] below.[168] Professor Flanigan's initial evidence did not address the effectiveness of thevaccine. In his evidence in reply, he said that the protection offered by the vaccine inrelation to transmission is minimal and short-lived and therefore clinicallyinsignificant. He does not address the three-fold impact of vaccination set out inDr Town's evidence. As I will come to, although the FTBC applicants did not presentany expert evidence on this point, their submission that, once Omicron was in thecommunity, there was no rational connection between the purpose of the Order andthe CVC-related restrictions, was said to be based on the respondents' scientificevidence about the effectiveness of the vaccine.Risk assessment of faith-based gatherings[169] Both the Orewa and FTBC applicants assert that the restrictions as introducedwere not rationally connected to their purpose, in part because of disparate treatmentof similar activities.[170] The first aspect of that challenge relates to the risk assessment of faith-basedgatherings. The respondents' assessment at the relevant times was that faith-basedgatherings are high-risk. It was primarily on this basis that faith-based gatherings wereincluded in the definition of "gatherings" in the Order and subject to the CVC andcapacity restrictions accordingly.[171] The Orewa applicants submit that the right to manifest religion is an importantone and that the restrictions are disproportionate, because faith-based gatherings arenot high-risk settings when public health measures other than CVCs and gatheringlimits are imposed.[172] As Dr Town's evidence notes, SARS-CoV-2 is transmitted through airbornedroplets exhaled by an infectious individual. Singing is associated with particularlyhigh rates of transmission. Transmission risk is greatest when an infected person is inclose proximity for an extended period of time with another person, but infection canalso occur after brief contact, or from movement through the same space withoutcontact.[173] Dr Town's evidence relating to pre-symptomatic transmission andasymptomatic transmission is relevant here. As he notes, it is impossible to identifyindividuals who are likely to transmit Covid-19 based on symptoms alone.Transmission can occur before an infected person becomes symptomatic and someinfected people never develop symptoms. This does not mean that they are notinfectious – to the contrary, pre-symptomatic transmission is likely to be a significantcause of spread of Covid-19.[174] Gathering limits aim to prevent super-spreading events. Both Dr Town andDr Bloomfield gave evidence that super-spreading events have played a significantrole in the spread of the virus in New Zealand. For example, the Omicron outbreakwas initially fuelled by two main events, the SoundSplash festival and a large wedding.[175] Gatherings that have the highest risk are those where there are large numbersof people, which continue for a long period of time, and where there is close interactionbetween attendees. Key risk factors include the number of people, their proximity, thelength of time they are together, people attending from outside the region, ventilationand presence of vulnerable people.[176] The evidence from both Dr Town and Dr Bloomfield is that faith-basedgatherings are high-risk settings. Activities commonly occurring in faith-basedgatherings such as singing, close personal contact by hand shaking, hugging and layingon of hands, administering and receiving communion, and sharing food and drink, arehigh risk activities and increase the likelihood of a super-spreading event. In addition,faith-based gatherings are very likely to have vulnerable people in attendance,including older people and Māori and Pasifika communities, who are at risk of severeoutcomes from Covid-19.[177] Both Dr Town and Dr Bloomfield gave as an example the August 2021 Deltaoutbreak where a South Auckland church was at the centre of the largest cluster. Thiswas an example of the high-risk nature of faith-based gatherings. They also refer to alarge cluster related to an outbreak at the Shincheonji Church in South Korea, at thestart of the pandemic, that resulted in over five thousand cases. The applicantsdisputed the similarity and relevance of the South Korean example.[178] The data from the Delta outbreak from early August until 11 October 2021 wasanalysed by Ministry of Health officials, with a view to determining the settings withthe highest secondary attack rate (SAR). The SAR is the percentage of contacts of anindex case that become a secondary case. Dr Town's evidence is that it can be a moreuseful measure of transmission risk than the reproduction number, which is heavilydependent on the number of contacts.[179] The first Delta SAR Analysis,65 which detailed 1,051 secondary cases amongthe 41,440 contacts identified, found that households gave rise to the majority ofsecondary cases and have the highest SAR, with 45.6 per cent. The next highest SARwas for private gatherings, with a SAR of 10.4 per cent. The significance of that datais disputed by Professor Flanigan, on the basis that it only evidences 72 secondarycases arising from private gatherings, with no distinction made between faith-basedgatherings and others.[180] Dr Town's response is that this misunderstands the nature of super-spreadingevents and the risk they pose. As he explained, super-spreading events occur when anindividual, or a small number of individuals, cause a substantial number of secondarycases, with the size of the cluster amplifying through successive chains oftransmission. Individuals at a super-spreading event who contract the virus will go onto pass it on to family members and others, seeding the virus throughout thecommunity. Dr Town provides an analysis of genomes sequenced in the period from4 August 2021 and broadly representative of the proportion of the cases arising fromdifferent clusters in the Delta outbreak. While faith-based gatherings were notcaptured as a discrete variable in the dataset in Delta Outbreak SAR Analysis, the casesarising from the South Auckland church cluster are graphically represented.[181] Professor Flanigan disputes the relevance of the Delta Outbreak SAR Analysison the basis that general public health measures such as masking and physicaldistancing were not in place at that stage (in Alert Level 1), so the data does not reflectthe impact of such measures on transmission. However the respondents note that nosuch restrictions were in place across the board at Alert Level 1 and, prior to discoveryof Delta in the community, social and other activities were taking place withoutrestriction. In that context, the fact that the super-spreading event resulting in thespread of Delta throughout the community occurred at a faith-based gatheringillustrates the high-risk nature of faith-based gatherings, compared to other activities.65 There were two Delta Outbreak SAR Analyses carried out by the Ministry of Health, dated19 October 2021 and 10 March 2022.[182] Dr Town says that the high-risk nature of faith-based gatherings was alsoconfirmed by an analysis of gathering-related SARs from 20 January to 1 February2022.66 This analysis found that places of worship had the second highest SAR at8.6 per cent (after "Other organised events" at 10.4 per cent).[183] Professor Flanigan disputes the validity of this data too, on the basis that bythis point Omicron was dominant in the community, that it was a small sample set andthat the core public health measures such as those he proposed were not in place atthat time.[184] However, the respondents note:(a) Omicron was first discovered in the community on 22 January 2022and, for a period, overlapped with Delta, before Omicron becamedominant. Whether or not Omicron was dominant for part of the periodis irrelevant as the data illustrates the SAR of gatherings (and thereforecomparable risk levels) in different settings.(b) Thousands of data points were analysed and the data clearly showedthat faith-based gatherings (at 8.6 per cent SAR) were the secondhighest risk setting after other organised events (at 10.4 per cent SAR)and both were higher risk than the other settings analysed (bars, gymsand restaurants, which are recognised as being areas of increasedtransmission risk).(c) Consistent public health messaging and the Guidelines for Places ofWorship were in place at the time of the outbreak and encouraged thecore public health measures that Professor Flanigan refers to, in theCDC Guidelines and the Thomistic Institute Guidelines – mostsignificantly, wearing masks, physical distancing and hand hygiene.Despite these public health measures being in place (although notmandated), places of worship were shown to have a SAR of 8.6 percent.66 As shown in the Ministry of Health's second Delta Outbreak SAR Analysis of 10 March 2022.[185] I am satisfied there was a sufficient evidential basis to conclude that faith-basedgatherings were high risk.[186] The Orewa applicants also submit that the Minister imposed restrictions ontheir rights as a means to encourage vaccination. I find that is clear from advicereceived by the Minister from DPMC and Ministry of Health officials that the primaryaim in imposing the CVC-related restrictions was to minimise the spread of Covid-19.Incentivising vaccination against Covid-19 was viewed as a secondary benefit ofCVCs.Comparison with schools[187] As well as challenging the risk assessment of faith-based gatherings per se, theOrewa applicants also submit that there was not a proper basis to treat faith-basedgatherings differently from schools. The Orewa applicants also say that thedifferential treatment of faith-based gatherings and schools shows that the Ministerdid not properly understand and have regard to the right to manifest religion and/ orassessed it as less important than the right to education, which is also a right protectedunder the Bill of Rights.[188] The definition of "gathering" in the Order excluded "a gathering for thepurpose of a business or service at education entities at normal operations".67 Schoolswere therefore not subject to the restrictions by way of limits on number and use ofCVCs.[189] In addition to his expert evidence in relation to theological matters,Dr Flannagan also gave anecdotal evidence of his experience as a religious educationteacher. His evidence seeks to challenge the effect of the Order in relation to schools,compared to Sunday School services. As Dr Flannagan has not sought to qualifyhimself as an expert in relation to public health or education generally, I do notconsider that evidence.67 Order, above n 1, cl 13(c)(v).[190] The Minister's evidence is that the decision to prioritise the opening of schoolsand not to use CVCs in schools was based on the importance of education to childrenfrom a developmental perspective, the importance of the right to education undernational and international law, and the potential impact (including health impact) oflong-term remote learning on children. The vaccination requirements should notrestrict children and young people's access to learning, or parents' and caregivers'ability to support their children in their learning. The Government was aware of thelong-term impacts of entrenching existing inequities and social exclusion in aneducation context. Although the risk assessment for schools was lower than for faith-based gatherings, the decision in relation to schools was not based on an assessmentof the comparative risk of those settings.[191] Dr Bloomfield's evidence too was that non-attendance at school can bedetrimental to a child's educational and social development and wellbeing which canhave long term consequences. Those risks are exacerbated in socio-economicallydeprived communities where schools may be the only contact children have with stateauthorities. Educational settings evidently cover a large proportion of the population.For those reasons, Dr Bloomfield says, the risk/benefit balance in educational settingsis different than in other settings.[192] The Minister also says that, while places of worship had alternative options forholding their services (smaller services without CVCs, CVC and non-CVC services atdifferent times or, depending on venue, at the same time, as well as online), thosechoices were not available for schools. Schools operate five days a week for full days.Classroom capacity and staffing limitations mean it would not have been possible tooffer different classes to those with and without CVCs. All students' education wouldhave suffered.[193] In any event, Dr Town disputes Professor Flanigan's evidence that the publichealth risks posed by schools and faith-based gatherings are equivalent. In the firstDelta Outbreak SAR Analysis, the SAR of education was 0.1%, compared to a SARof 10.4% for private gatherings.[194] Professor Flanigan queries the Analysis, based on sample size, the effect of theAlert Levels in place at the time of the study (August-October 2021) and the fact thatpublic health measures were in place in schools during part of the study period.[195] In response, Dr Town notes that during this period Alert Level restrictions inNew Zealand applied across all settings so would not be expected to have an impacton the SAR analysis. This analysis of thousands of data points, including 11,798contacts in education settings, represented the actual breakdown of secondary cases ina New Zealand outbreak, at a time when all relevant cases were being identified andall contacts traced. While public health restrictions such as masking and distancingimposed once schools reopened at lower Alert Levels could be expected to have someimpact, they would not be expected to result in a 100-fold decrease in transmissionrisk.[196] The risks of infection and serious illness also differed as between faith-basedgatherings and schools. The evidence from both Dr Town and Dr Bloomfield is that,while there is some risk of severe illness for children infected with Covid-19,particularly those who are immuno-compromised, in general, children's symptomswill be mild. In addition, all adults involved in the provision of education (teachersand parent helpers) were, during the relevant period, subject to the vaccine mandateand therefore had a base level of protection from, and a reduced likelihood oftransmission of, Covid-19. In contrast, faith-based gatherings are more likely to havea higher proportion of vulnerable people in attendance, particularly elderly membersof the community, who are at a disproportionate risk of severe outcomes from Covid-19.[197] I am satisfied on the evidence that there was a proper basis to treat schools andfaith-based gatherings differently.Other activities and businesses[198] Both the Orewa and FTBC applicants challenge what they say is the disparatetreatment under the Order of houses of worship and secular activities and says thedistinction is arbitrary as there is very little difference between those activities.Professor Flanigan's evidence addresses this point.[199] The Orewa applicants rely on Tandon v Newsom, where the US Supreme Courtgranted an injunction against limits imposed by the Governor of California onreligious gatherings in homes, to three households.68It is no answer that a State treats some comparable secular businesses or otheractivities as poorly as or even less favorably than the religious exercise atissue whether two activities are comparable for purposes of the FreeExercise Clause must be judged against the asserted government interest thatjustifies the regulation at issue. Comparability is concerned with the risksvarious activities pose, not the reasons why people gather.[200] The majority went onto say:69California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal careservices, movie theaters, private suites at sporting events and concerts, andindoor restaurants to bring together more than three households at a time.[201] I did not find this decision useful. As Justice Kagan, for the minority, noted,the First Amendment requires that a State treat religious conduct as well as the Statetreats comparable secular conduct. Here, the State had adopted a blanket restrictionon at-home gatherings of all kinds, religious and secular alike.70California need not, as the per curiam insists, treat at-home religiousgatherings the same as hardware stores and hair salons – and thus unlike at-home secular gatherings, the obvious comparator here. And even supposinga court should cast so expansive a comparative net, the per curiam's analysisof this case defies the factual record. According to the per curiam, "the NinthCircuit did not conclude that" activities like frequenting stores or salons "posea lesser risk of transmission' than applicants' at-home religious activitiesBut Judges Milan Smith and Bade explained for the court that those activitiesdo pose lesser risks for at least three reasons These are not the mere musingsof two appellate judges: The district court found each of these facts based onthe uncontested testimony of California's public-health experts No doubtthis evidence is inconvenient for the per curiam's preferred result. But theCourt has no warrant to ignore the record in a case that (on its own view)turns on risk assessments.[202] The respondents say that some of those other, secular activities were treateddifferently because of the assessed degree of risk of the activity. Others were not basedon an assessment of risk – for example, life-preserving services. So, supermarkets,68 Tandon v Newsom 593 US (2021), per Justice Kavanaugh for the majority, at 593.69 At 3.70 At 1.pharmacies, petrol stations, health services and emergency accommodation were notpermitted to restrict access by the use of CVCs.[203] The decision not to impose restrictions on plane travel, rail, interisland ferriesand other public transport was based on an assessment of the risk involved in thoseservices. Dr Town disagrees with Professor Flanigan's evidence, and says thatsupermarkets, health services and transport do not pose a similar degree of risk to ahigh-risk gathering, such as a faith-based gathering. Dr Town notes that these settingsare seldom sites of widespread transmission and do not give rise to the risk of super-spreader events. This is supported by the Delta Outbreak SAR Analysis of 19 October2021. The SARs of both public transport and retail settings (including supermarkets)were negligible. The SAR of healthcare settings was 0.2 per cent.[204] Retail was also assessed as a lower risk than faith-based gatherings. Under theCPF, the operators of private retail businesses and workplaces had the option ofchoosing whether to require CVCs as a condition of entry. Workplaces did not posethe same risk as a high-risk setting such as faith-based gatherings: in the DeltaOutbreak SAR Analysis of 19 October 2021, the SAR in workplaces was 0.6 per cent.Nor does retail usually involve the congregation of large numbers of people in oneplace, so therefore does not pose the same transmission risk. The SAR in food,alcohol, service station and retail settings (which included all shopping-related settingssuch as supermarkets, trade stores and smaller outlets such as fashion retail anddairies) was negligible in the Delta Outbreak SAR Analysis.[205] Airline travel was included in the public transport setting in the Delta OutbreakSAR Analysis. No secondary cases were connected to public transport.[206] I am satisfied that the restrictions in the Order, as they applied to faith-basedgatherings, were not arbitrary and were rationally connected to their purpose,satisfying the first limb under the proportionality test.Less impairing alternatives[207] The second limb of the proportionality test requires the Court to determinewhether "Parliament might have sufficiently achieved its objective by another methodinvolving less cost to the [right]" and whether the limit imposed "is no greater than isreasonably necessary to achieve Parliament's objective".71[208] The Orewa applicants submit that the CVC-related restrictions were not theleast restrictive means of preventing the transmission of Covid-19 in the context offaith-based gatherings.[209] They put forward a number of alternatives to the CVC-related restrictionswhich they say would be less limiting of their rights and freedoms, but equallyeffective.[210] The FTBC applicants also rely on the Orewa evidence to make the samesubmission.Masking, social distancing, good hygiene practices (the "three Ws")[211] Professor Flanigan explained that in 2021 he led a team of experts in theUnited States who developed the guidelines for the Thomistic Institute's United StatesConference of Catholics to help them remain safely open to all during the Covid-19pandemic. The Thomistic Guidelines relied on the "three Ws" – watch your distance,wear a mask and wash your hands. Professor Flanigan's evidence was that (as atFebruary 2022 when he swore his affidavit), there had been no clusters of cases ofCovid-19 being contracted at any Catholic church service implementing the ThomisticInstitute Guidelines.[212] Professor Flanigan also refers to the CDC guidelines, Considerations forCommunities of Faith, to help faith communities safely keep houses of worship open,"while still working to prevent the spread of Covid-19".72[213] Professor Flanigan's evidence is that houses of worship can safely open whileprotecting against the spread of Covid-19, without imposing capacity limits, if thehouse of worship implements what he calls the three most effective behavioural tools71 Hansen v R, above n 59, at [126].72 Centre for Disease Control "Considerations for Communities of Faith" (19 February 2021) CDC<www.cdc.gov>.in combatting Covid-19: social distance, facial coverings, and hand hygiene, and haspolicies in place to encourage sick, potentially exposed, and at-risk individuals to stayhome. He says, in having regard to those precautions, allowing a house of worship toopen without set capacity limitations "should be considered reasonably safe".[214] Dr Bloomfield emphasises that consistent public health messaging and theGuidelines for Places of Worship were in place at the time of the outbreak andencouraged the core public health measures that Professor Flanigan refers to, mostsignificantly wearing masks, physical distancing and hand hygiene. Despite thesepublic health measures being in place (although not mandated; nor were theymandated under the CDC Guidelines) places of worship were shown to have a SARof 8.6 per cent.[215] Dr Bloomfield's evidence is that:Measures such as masking, good personal hygiene and physical distancing allhad, and continue to have, a significant part to play in achieving the publichealth objective of minimising the spread of the virus, and protecting thepublic. I do not, however, consider that such measures would have beenadequate alternatives to the restrictions in the CPF.Size of venue / social distancing/ventilation[216] In Professor Flanigan's opinion, any limits on numbers for faith-basedgatherings should be based solely on the size of the particular building and the abilityto provide for adequate social distancing. He says this is particularly true for a countrywith a very highly vaccinated population.[217] Dr Town notes three main drawbacks to the proposal to allow a certain numberof individuals based on the size of the venue:(a) In many social settings, individuals are mobile and do not maintainphysical distancing, but gather in groups and move from group togroup, or are in close contact during entry and exit from the venue.(b) Gatherings of larger numbers of individuals are more likely to includemultiple infectious individuals, which increases the risk spread.(c) For a space to have reduced risk of aerosol spread, the ventilation andduration of exposure are critical factors. A poorly ventilated space,even if it is relatively large, poses a greater risk of transmission ofCovid-19 than a small space with good ventilation.[218] Dr Bloomfield's evidence is that there is no "bright line test" for an optimalcapacity limit. Imposing density limits in relation to individual venues is notconsidered an appropriate approach, in circumstances where action is needed toprotect the healthcare system and/or the health of communities and at-risk populations.Imposing fixed capacity limits is considered the more clear, easy to apply, andeffective approach in achieving the aim of minimising the spread of Covid-19 andprotecting the most vulnerable.[219] Nor, in Dr Bloomfield's view, is it possible to take into account the ventilationcapabilities of the individual venues when imposing generally applicable public healthmeasures: "A key tenet of the CPF is its simplicity and consistently across settings."PCR / RAT testing, prior infection[220] The applicants suggest that regular testing of congregants, by way of PCR testsor RATs and proof of prior infection, combined with masking, physical distancing,hand sanitising and other measures, could have been used as a practical alternative tothe CVC-related restrictions.[221] Dr Bloomfield's advice to the Minister was that he had considered thepossibility of using proof of a negative Covid-19 test as an alternative to proof ofvaccination but ultimately advised that proof of a negative test would be less effectivein benefitting public health than proof of full vaccination, as vaccination generallyprovides better assurance of baseline protection. Proof of vaccination would be thestronger public health measure.[222] Nor would the use of RATs or PCRs have addressed the risk to theunvaccinated individuals themselves and the related health system burden. Anunvaccinated individual is at higher risk of contracting Covid-19 in a high-risk setting,and at higher risk of hospitalisation if they contract the virus. Restricting anunvaccinated person's access to a high-risk setting protects the individual, whilelimiting the number of unvaccinated people contracting the infection helps to reducethe pressure on the health system.[223] Dr Bloomfield also notes that PCR tests are time and resource intensive andcapacity to carry out the testing is limited. Following the introduction of the Omicronvariant into the community, pooled sampling was no longer possible.73 PCR testing isbetter focused on those who are at risk of more severe outcomes, those who present tohospital with Covid-19 related complications, people in high-risk settings such as agedresidential care.[224] The respondent's evidence also addressed the limitations of RATs, noting thereare questions about their sensitivity in relation to asymptomatic or pre-symptomaticcases. That is of particular concern when the aim of the restrictions is to reduce thepossibility of super-spreader events. They were therefore not considered suitable asan alternative to CVCs.[225] At the time of making his affidavit in early May 2022, Dr Bloomfield notedthat until recently the availability of RATs in New Zealand was limited and firstsupplies were targeted to healthcare workers and other critical workers.[226] His evidence is that RATs continue to not be an acceptable alternative togathering limits, given their lack of sensitivity combined with the need to control therisk of super-spreader events. They are not a suitable alternative means to control thetransmission risk of large gatherings at the Red setting of the CPF.Discussion[227] In assessing the alternative measures proposed by the applicants, the keyquestion is whether one or a combination of those measures would have the sameeffect as the CVC-related restrictions, but be less likely to be inconsistent with theapplicants' s 15 rights.73 Pooled sampling involved PCR samples from multiple people being tested in one group. Thatenabled health authorities to increase the number of tests conducted in a given period up to 10-fold.[228] The appellate courts have adopted a "range of reasonable alternatives" test todetermine this question.74[229] The Court of Appeal in Ministry of Health v Atkinson said:75[151] There is no dispute as to the relevant principles. This limb of the test canbe addressed by considering whether the Ministry's approach fell within arange of reasonable alternatives. In R v Hansen, Blanchard J noted that "achoice could be made from a range of means which impaired the right as littleas was reasonably necessary". Tipping J dealt with minimal impairment in thisway:[126] The Court must be satisfied that the limit imposed is nogreater than is reasonably necessary to achieve Parliament's objective.I prefer that formulation to one which says that the limit must impairthe right as little as possible. The former approach builds inappropriate latitude to Parliament; the latter would unreasonablycircumscribe Parliament's discretion. In practical terms this inquiryinvolves the Court in considering whether Parliament might havesufficiently achieved its objective by another method involving lesscost to the presumption of innocence.[152] Finally, McGrath J put the point slightly differently when he said:[217] The second question concerning proportionality is whetherthe measure intrudes as little as possible The inquiry here is intowhether there was an alternative but less intrusive means ofaddressing the legislature's objective which would have a similar levelof effectiveness [153] A similar approach has been adopted in Canada. For example, in RJR-MacDonald Inc v Canada, McLachlin J said the requirement for minimalimpairment meant that:[160] the law must be carefully tailored so that rights are impairedno more than necessary. The tailoring process seldom admits ofperfection and the courts must accord some leeway to the legislator.If the law falls within a range of reasonable alternatives, the courtswill not find it overbroad merely because they can conceive of analternative which might better tailor objective to infringement Onthe other hand, if the government fails to explain why a significantlyless intrusive and equally effective measure was not chosen, the lawmay fail.[230] It is only where there are alternative, less harmful, means of achieving theGovernment's objective "in a real and substantial manner" that a law will fail the74 Hansen v R, above n 59, at [217].75 Ministry of Health v Atkinson [2012] NZCA 184, [2013] 3 NZLR 546 at [151]-[153]. Cited withapproval by O'Regan and Ellen France JJ in New Health New Zealand v South Taranaki DistrictCouncil [2018] NZSC 59; [2018] 1 NZLR 948 at [133].minimum impairment test.76 The respondents say that the margin of appreciation playsa role at this stage of the analysis.77[231] I accept Dr Bloomfield's evidence that there is a need for caution whenextrapolating from the experience of any particular country whose circumstances maybe different from those in New Zealand. While the Ministry of Health did regularlymonitor and consider communications from WHO, other international medical bodiesand scientific institutions of other governments, public health decisions inNew Zealand have to be taken in a New Zealand context; that requires a New Zealand-specific assessment of the prevalence of Covid-19, health services capacity, populationvulnerabilities and other factors.[232] In the New Zealand context, Dr Bloomfield consistently advised the adoptionof a multi-layered approach, with measures contained in the CPF sitting alongside highlevels of vaccination, good hygiene, physical distancing, the wearing of masks, testingand, where appropriate, personal protective equipment, in order to minimise the spreadof Covid-19 – "the more layers of protection in place, the harder it is for the virus toget through". Such an approach has been applied globally and in New Zealand andreflects that no public health intervention is 100 per cent effective at preventingdisease.[233] The evidence of Drs Town and Bloomfield clearly establishes the scientificsupport for the efficacy of vaccination and gathering limits in reducing the spread andharm of Covid-19. That evidence supports a conclusion that those measures aresignificantly more useful in achieving the objective than any one or combination ofthe alternatives proposed by the Orewa applicants (and supported by the FTBCapplicants). As Justice Burrage put it in Taylor v Newfoundland and Labrador,78 thereis no simple, one size fits all solution to the effective management of a pandemic suchas Covid-19. Similarly, in Philip v Scottish Ministers, Lord Braid said:79 "I accept therespondents' submission that there is no international consensus as to how thepandemic should be legislated for".76 Alberta v Hutterian Brethren of Wilson Colony, above n 63, at [55].77 GF v Minister of Covid-19 Response [2021] NZHC 2526, [2022] 2 NZLR 1 at [81].78 Taylor v Newfoundland and Labrador [2020] NLSC 125 at [469].79 Philip v Scottish Ministers, above n 40, at [117].[234] The applicants' claims of arbitrariness and over-breadth by way of comparisonwith other activities are not borne out. The fact that some activities and businesseswere allowed to proceed or remain open (with no or different restrictions) does notnegate the rational connection between the restrictions on faith-based gatherings andtheir object. The restrictions on other activities in some cases reflected a different riskassessment. In other cases, the different restrictions reflected the essential nature ofthe activity.Proportionality[235] The final analysis requires a broad assessment of whether the benefits achievedby the restrictions are outweighed by the significance of the limitation of theapplicants' right to manifest their religion. If those benefits outweigh the limitationon the applicants' rights, the limitation is proportionate and demonstrably justifiedunder s 5 of the Bill of Rights Act.[236] As the respondents acknowledge, it would be inappropriate for them or theCourt to challenge the correctness of the applicants' beliefs. Having said that, theconsultation with faith communities showed that many churches decided to operatewith CVCs, to protect vulnerable congregants, and Professor Trebilco's evidence wasthat there is a range of views within the Christian community. That is relevant to theproportionality analysis. The gathering restrictions affected religious and non-religious alike. They may be a proportionate limit on the s 15 rights of a group whoseviews are not widely shared.[237] The primary objective of the Order is to prevent, and limit the risk of, theoutbreak or spread of Covid-19 in the community, in order to minimise death andserious illness and consequent impacts on the public health system. I have concludedthat there was a rational connection between the restrictions and their object ofdecreasing the spread of Covid-19. That connection is convincingly set out in theevidence for the respondents. The applicants have not identified any alternativemethod that would be equally effective in achieving the objective. I conclude that thebenefits of the CVC-related restrictions as introduced outweigh the limitation on theapplicants' right and the limitation is proportional and demonstrably justified.CVC-related restrictions after Omicron in the community[238] The FTBC applicants say that once the Omicron variant had emerged inNew Zealand in November 2021, the public health rationale for having a materiallylower cap on numbers at a gathering, if one or more attendees were unvaccinated, wasundermined. At that point the limitations in the Order became arbitrary and notrationally connected to the objective. Non-CVC gatherings should then have beensubject to the same capacity limits as those applying to CVC gatherings (100 ratherthan 25), but using protective measures other than CVCs, particularly masks.[239] The FTBC applicants also say that the government knew, at least in January2022, that the effectiveness of the primary course of the vaccine against the Omicronvariant was substantially reduced and a public health review in February 2022concluded that there was no longer "a sufficient public health rationale to justify" adifferentiated approach based on vaccination. However, the gathering limit was notremoved until 2022.[240] There are three aspects to FTBC's principal submission. First, theeffectiveness of the vaccine in relation to the Omicron variant; second, what thegovernment concluded in relation to the reduced effectiveness; and third, the fact thatCVCs were not removed from the CPF until 4 April 2022.Effectiveness of the vaccine against Omicron[241] In early 2022 studies showed that while the vaccine provides some protectionagainst symptomatic disease, its effectiveness in relation to Omicron is reduced,compared to Delta. The Minister received advice on 18 January 2022 that "critically,evidence suggests that two doses of Pfizer offer significantly less protection againstinfection from Omicron than from Delta We do not have high levels of protection[against Omicron]."[242] That advice was based on a number of international studies which showed thatVE in relation to infection reduced more rapidly for Omicron than for Delta.8080 Christian Hansen and others "Vaccine effectiveness against SARS-CoV-2 infection withthe Omicron or Delta variants following a two-dose or booster BNT 162b2 or mRNA-1273[243] The FTBC applicants say this data is not in dispute – it was all cited withapproval in the Ministry of Health's advice and it ought to have triggered a change tothe Order.[244] Dr Town and Dr Bloomfield acknowledge that early evidence suggested thattwo doses of the vaccine offered significantly less protection against infection fromOmicron than Delta and that Omicron was significantly more transmissible than Delta.While the severity of the disease for Omicron patients was reduced compared to thosewith Delta, the overall number of those in hospital was higher because of the muchhigher number of cases involved. Dr Bloomfield's advice to the Minister was that, inlight of the risks presented by Omicron, a highly precautionary approach to settingsunder the CPF was warranted and that no areas should be moved to Green at that time.His advice was that a precautionary approach would reduce the number of higher riskgatherings and thus reduce the chances of rapid transmission across New Zealand ifOmicron did enter the community. The initial suggestion from officials was that theappropriate response to Omicron emerging in New Zealand would be to increaserestrictions, including capacity limits, under the CPF.[245] The FTBC applicants rely on what the studies said about the effectiveness ofthe vaccine in preventing infection with Omicron. In response, Dr Town's evidenceemphasised that VE is considered in relation to three aspects – its ability to preventinfection, prevent hospitalisation and prevent onward transmission from those who dobecome infected.[246] Dr Town's evidence is that Omicron has a high number of mutations, includingup to 32 mutations in the spike protein, which confers resistance to the currentlyavailable vaccines and may have higher transmissibility. Evidence by March 2022indicated the Omicron variant is more transmissible and has a higher SAR than Delta.vaccination series: a Danish cohort study" (22 December 2021)<https://doi.org/10.1101/2021.12.20.21267966> at 6; United Kingdom Health Security Agency"SARS-CoV-2 variants of concern and variants under investigation in England" TechnicalBriefing 34 (14 January 2022) at 23; Yinong Young-Xu "Effectiveness of mRNA COVID-19vaccines against Omicron among Veterans" (18 January 2022) at 4; and Nick Andrews and others"Effectiveness of Covid-19 vaccines against the Omicron (B.1.1.529) variant of concern"(14 December 2021) at 8.[247] Dr Town says that Omicron may have a shorter serial interval than Delta andcases are likely to present differently: symptoms may be milder in previously infectedand/or vaccinated individuals; United Kingdom data suggested about 25 per cent maybe asymptomatic; and a sore throat is more common, while a loss of taste and smell isless commonly reported by Omicron cases than for Delta. The data indicated thathospitalisation and death rates were lower for Omicron than Delta, taking into accountvaccination status and risk of severe disease.[248] Dr Town says that rapid waning of VE occurs with Omicron, but a booster doserestores protection. The data demonstrates that:(a) The vaccine effectiveness is around 55 per cent or more soon after twodoses of Pfizer. This represents an epidemiologically importantreduction in transmission. Vaccine efficacy wanes to levels unlikely toreduce infection risk and transmission within five to six months of thesecond dose.(b) The vaccine efficacy is around 55 per cent to 69 per cent after thebooster dose of Pfizer. The data also suggests that while there is somewaning of efficiency after the booster dose, this occurs more slowlythan after the primary course, with efficiency remaining above 50 percent in those who had received a booster more than 10 weeks before.[249] VE against hospitalisation appears to be 60-70 per cent after a primary vaccinecourse, but declines to around 45 per cent from 25 weeks after the second dose.Vaccine effectiveness against hospitalisation increases to around 90 per cent after abooster dose (including in those over 65 years of age).[250] Dr Town concludes that two doses of the Pfizer vaccine continued to providesome protection and to assist in limiting the spread of Omicron within the communityand reducing the incidents of hospitalisation. Two doses are less effective againstOmicron than against Delta. A booster dose provides enhanced protection.[251] Dr Bloomfield's evidence addresses the consequences of Omicron for thepublic health system and is relevant to the role of the vaccine in reducing the incidenceof hospitalisation. With its very high levels of transmission, Omicron has resulted inan increased number of people requiring hospital level care. In addition to people whorequire hospital level care, increased case numbers increase the number of people whorequire primary care, for example from their general practitioner or local pharmacist.The number of hospitalisations, particularly at the first peak of the Omicron outbreak,together with the absence of staff due to quarantine and isolation, placed a significantstrain on the New Zealand healthcare system. Reducing that impact, Dr Bloomfieldsaid, remained an important part of New Zealand's public health response to Covid-19 which has represented an unprecedented public health challenge.[252] In conclusion on this point, the evidence of reduced VE for Omicron, comparedwith Delta, when taken together with the evidence about the ongoing benefits ofvaccination in the Omicron context, does not support the submission that there was nolonger a sufficient public health benefit to justify continued use of CVCs.What the advice to government said[253] Second, the FTBC applicants point to a public health review on 28 February2022, reported in a memorandum by Ministry of Health officials to Dr Bloomfield on4 March 2022. They say that memorandum should have triggered the Minister toimmediately remove CVCs from the CPF.[254] FTBC emphasises the following paragraph of the memorandum, under theheading "Covid-19 Vaccine Certificates":33. Given there is now significant community transmission, but with veryhigh rates of vaccination, the use of CVCs do not provide the same populationprotection. This brings the validity of retaining CVCs as a public healthmeasure, at this point in time, into question. The Director of Public Health'sadvice is that, given the very high rate of vaccination nationally and the currentdefinition of 'up-to-date vaccination status' (which only includes 2 doses ofvaccine, and is now under review), there is technically not a sufficient publichealth rationale currently to justify CVCs being used to prevent entry tocertain premises during this phase of the response.[255] And the linked, noting recommendation:Note the Director of Public Health's advice that, given the very high rate ofvaccination nationally, there is not a sufficient public health rationale currentlyto justify COVID Vaccine Certificates (CVCs) being used to prevent entry tocertain premises during this phase of the response.[256] FTBC's reliance on the memorandum is selective and, for that reason,inaccurate and misleading. The paragraph immediately following said:34. However, it is important to note that you will be receiving furtheradvice relating to vaccine tools, including boosters, the definition of 'up-to-date vaccination status', and mandates for affected group of workers whichshould still remain at this point. This further work, particularly if arequirement to have been boosted is included in the definition of 'up-to-datevaccination status', could mean that only 73 per cent of New Zealanderswould be considered fully vaccinated. If so, the original public healthrationale for CVCs would be restored immediately since a significant numberof New Zealanders would not be considered fully vaccinated.[257] That paragraph was reflected in a recommendation (which the Minister ticked"yes"), in the following terms:Agree that, in light of the ongoing work to define an 'up-to-date vaccinationstatus', it is too early to conclude that there is an insufficient public healthrationale for CVCs to be used to prevent entry to certain premises.[258] Further advice from Ministry of Health officials to Dr Bloomfield on14 March 2022 was that "while the immediate social and legal justification for vaccinepasses and mandates is diminishing due to high vaccination rates, with winterapproaching, the borders re-opening and existing immunisation levels waning,removing them at this time is not advisable" and "at least until it decides to step downfrom Red to Orange settings of the CPF, Government should continue with the currentuse of COVID-19 Vaccinate Certificates (CVCs) domestically."[259] The 4 March 2022 memorandum does not support FTBC's submission. It doeshowever demonstrate that the Order was being kept under review as required bys 14(5) of the Act.Delay in implementing decision to remove requirement for CVCs[260] The third issue raised by the FTBC applicants is the apparent delay betweenCabinet's agreement on 21 March 2022 to remove CVCs from the CPF and the actualremoval on 4 April 2022.[261] The 21 March 2022 paper from the Minister to Cabinet makes plain why thegap between the decision and it taking effect was required:[15] I propose that MVPs are removed from the Framework at 11:50 pm Monday4 April 2022. By this date we are very likely to have confidence that we have movedpast the Omicron peak and allows time for sectors and agencies to put in place theguidance and workplace requirements they need to manage residual COVID-19 risk.[262] That aspect of FTBC's challenge must also fail.[263] Finally, I consider several subsidiary points raised by FTBC which they sayalso render the CVC-related restrictions arbitrary and not rationally connected to theirpurpose.Offence provisions[264] From 4 December 2021 the COVID-19 Public Health Response (InfringementOffences) Regulations 2021 provided that a breach of the number limit gathering rulesfor CVC gatherings was classified as a medium risk offence and for non-CVCgatherings it was classified as a high risk infringement offence.[265] Although not pleaded in their statement of claim, in submissions the FTBCapplicants say this rendered the gathering limits in the CPF arbitrary becausebreaching the capacity limits at nightclubs, bars, restaurants and gyms was not aninfringement offence.[266] Because of the late introduction of this aspect of the claim the respondents werenot able to bring evidence about the policy work that underlay the different treatment.Nevertheless, they say on its face the claim is not supported. At the Red setting, CVCgatherings could have up to 100 people and non-CVC gatherings up to 25. Nightclubs,bars, restaurants and gyms could have up to 100 people with CVCs, but were requiredto close without using CVCs.81 Hospitality and gyms could not legally operate at theRed setting without requiring CVCs, so the risk at those venues was lower. Therespondents also point to the different levels of risk.81 Order, above n 1, sch 7, part 3, subparts 1 and 3.[267] In the absence of evidence on the point, I am not persuaded that differingenforcement mechanisms for breaches of rules in these different contexts make theOrder arbitrary or not rationally connected to its purpose.Gatherings at private dwellings[268] The FTBC applicants also say the fact that gatherings at private dwellings arenot subject to the density limit imposed on other gatherings, including faith-basedgatherings, makes the gathering limits arbitrary. They say that a gathering of 100vaccinated people in a small private dwellinghouse – the "highest risk setting fortransmission of the virus" – is permitted, but the Order prevents a faith-based gatheringof more than 25 people, where one person is unvaccinated, in a large church hall.[269] As discussed above, the respondents' evidence is that the distinction is apractical one: requiring people to calculate the square footage of their home to have aprivate gathering would undercut the need for clear and uncomplicated healthmeasures and make it harder for individuals to ascertain whether they were compliant.In contrast, gatherings at other venues are more likely to be formally organised andable to calculate the size of the venue. In addition, gatherings at privatedwellinghouses are easier to contact trace.[270] The respondents also refute the claim regarding the risk setting of privatedwellinghouses. Gatherings in private dwellinghouses are included in the "privategatherings" category, with a SAR of 10.4 per cent,82 not the household settingscategory, with a SAR of 45 per cent.[271] The FTBC applicants also raise doubt about whether the gatherings rules applyto gatherings at private dwellinghouses at all, given that cl 42(4)(b) of the Orderprovided that the gathering rules do not apply to gatherings at premises referred to ins 12(2)(c) of the Act, and s 12(2)(c) includes "premises [] used solely as a privatedwellinghouse" in those premises that may not be closed by an order unders 11(1)(e)(i) of the Act.82 As shown in the Ministry of Health's first Delta Outbreak SAR Analysis of 19 October 2021.[272] The respondents concede a drafting issue but say it is clear that cls 46 and 47are intended to apply to gatherings at private dwellinghouses. Section 11(1)(b)(ia) ofthe COVID-19 Act empowers the Minister to make orders requiring persons to permitaccess to premises only under specified conditions: nothing in the COVID-19 Actexcludes dwellinghouses from the premises that may be subject to such conditions.By contrast, the effect of s 12(2)(c) and (d) is that private dwellinghouses, prisons,courts and parliamentary precincts cannot be closed, or have their opening subject toconditions (in the same way that commercial premises can) by a COVID-19 Order.[273] Because the issue was not pleaded, there is no evidence from the respondentson the point. I am satisfied that a possible technical drafting issue cannot make therestrictions applying to faith-based gatherings arbitrary or unconnected to theirpurpose.Conclusion as to CVC-related restrictions after Omicron in the community[274] For the reasons set out above, I have found that the limits imposed on theapplicants' s 15 rights by the CVC-related restrictions as introduced weredemonstrably justified.[275] I am satisfied on the evidence that, after the Omicron variant was circulatingin the community, there remained a rational connection between the CVC-relatedrestrictions and the purpose of the restrictions.[276] As I have concluded in relation to the Orewa applicants' first cause of action,while there were a range of other, less restrictive, measures relevant to achieving thatpurpose, they would not have had a similar level of effectiveness.Limit in due proportion to the importance of its objective[277] Finally, as with the Orewa applicants' claim, the Court is required to step backand assess whether, in the round, the restrictions after Omicron was in the communitywere in due proportion to the importance of their objective.[278] That assessment remains the same. As McLachlin CJ noted, in HutterianBrethren, the Canadian Charter "does not demand that the limit on the right beperfectly calibrated, judged in hindsight, but only that it be "reasonable" and"demonstrably justified".83 The same is true of s 5 of the Bill of Rights Act.[279] Although s 13 of the Bill of Rights Act is not relied on by the applicants, thedistinction between the ss 13 and 15 rights is important:84 It is only the external, manifestation, aspect of the right that can be subjectto 'such limitations as are prescribed by law and are necessary in a democraticsociety'. A restriction on the internal freedom of thought cannot bejustified; the right is absolute.[280] And Lord Nicholls explained in R (Williamson) v Secretary of State forEducation, the distinction between the two aspects of the right is significant:85 because the way a belief is expressed in practice may impact on others. So in a pluralist society a balance has to be held between freedom to practiseone's own beliefs and the interests of others affected by those practices.(Emphasis added)[281] As I noted earlier in this judgment, s 15 does not contain an explicit limitationregarding the rights of others (as the ICCPR and ECHR do) but the s 5 analysisnecessarily requires the Court to consider how the manifestation of the applicants'religious beliefs might impact on others.[282] I am in no doubt about the significant impact of the restrictions on all of theapplicants and the members of their congregations.86 But faith-based gatherings arenot self-contained events. Members of a particular faith community go back to theirfamilies, and workplaces and other social settings. Risks incurred in places of worshipimpact on others. It is that potential to affect others – the rights of the broader public83 Alberta v Hutterian Brethren of Wilson Colony, above n 63, at [37].84 New Zealand Health Professionals Alliance Inc v Attorney-General of New Zealand, above n 35,at [65].85 R (Williamson) v Secretary of State for Education [2005] UKHL 15, [2005] 2 AC 246 at [17].86 The FTBC applicants refer by analogy to the effects on congregants of closure of places of worshipdescribed in Philip v Scottish Ministers, above n 40. That case involved a complete closure ofplaces of worship.to life and health and their interests in an effectively functioning health system – thatrenders the possibility of qualification of the applicants' rights necessary.87[283] Finally, it is relevant to note that, as well as being subject to ongoing review(fortnightly as at mid-April by the COVID-19 Protection Framework AssessmentCommittee),88 the restrictions were temporary (four months), and in the context ofwhat is almost certainly the worst public health crisis in at least one hundred years.Overall, I am satisfied on the evidence that the CVC-related restrictions as introduced,and as continued after Omicron arrived in the community, continued to be aproportionate response to the public health risk.Failure to consider s 15 of the Bill of Rights Act/Error of law[284] The Orewa applicants say that the Minister failed to consider the nature of thes 15 right as "the right of churches to collectively assemble, [or] the right [of] peoplewithin those churches to assemble with all others with whom they would wish toassemble to manifest their religion."[285] The Orewa applicants submit that there is nothing to show that the Ministerthought about the right to manifest religion as a matter of religion, rather than as asocial gathering. They point, for example, to his evidence that he rejected advice toimpose a gathering limit of 10 (choosing 25 instead) as there were "proportionalityconcerns given the importance of social connection (specially at Christmas)", as the10 person limit "was impractical for large families that may want to come together fora gathering". They say that the consultation with communities of faith overlookedmainstream evangelicalism, aside from National Church Leaders Aotearoa, theInterChurch Bureau and possibly a Baptist church.[286] The Orewa applicants say the Minister made an error of law by defininggatherings to include both faith-based gatherings and secular activities such assporting and recreation clubs. As already discussed, the Orewa applicants and FTBCchallenge the definition of "gathering". In the definition of "gathering" faith-based87 New Zealand Health Professionals Alliance Inc v Attorney-General, above n 35, at [86]. See alsoR (Williamson) v Secretary of State for Education, above n 85, at [84] and [86].88 COVID-19 Act, s 14(5).gatherings were listed among other types of gathering that have nothing to do withreligion or belief and which are not provided explicit protection by the Bill of RightsAct. By placing the right to manifest religion alongside activities such as the abilityto participate in sport, rather than alongside other protected rights subject to fewerrestrictions (such as education) the Minister improperly categorised the right.[287] In their submission, the Minister's statements tended to trivialise or ignore theimportance of the right to worship. In particular, the Orewa applicants say that theOrder treats the right to worship unequally, compared to other legally protected rightssuch as access to food, healthcare, the ability to move freely, find shelter, access justiceand receive education. They say that the rights of owners and operators of businessand of people who wanted to get on a plane, bus or other public transport (some forholiday or entertainment purposes) were respected at a level not afforded to the rightto manifest religion and, in fact, were elevated above the right to manifest religion.[288] Three streams of targeted consultation on the framework were held with placesof worship. The Hon Aupito William Sio, Minister for Pacific Peoples, and his officeengaged with Pasifika church leaders. The Hon Priyanca Radhakrishnan, Minister forDiversity, Inclusion and Ethnic Communities, and her office engaged withrepresentatives from the Muslim, Hindu, Sikh, Jewish and Buddhist faiths. Finally,Sarah Sparks, as the Chair of the Community Panel (established in July 2021 byDPMC to provide a diverse range of perspectives on different aspects of the Covid-19response), engaged particularly with the Catholic Church.[289] The 14 October 2021 briefing to the Minister from DPMC and the Director-General reported back on stakeholder engagement on CVCs. In relation to faith-basedorganisations, the Advice Paper noted that there had been "mixed feedback" fromreligious organisations: "Some strongly opposed any mandatory use of CVCs ornegative COVID-19 test to enter their premises as this would impact the freedom ofreligious expression. Others were interested in having an option to introduce vaccinerequirements, should they wish to." The briefing also noted a concern aboutvaccination status being the basis for entry for people who are vaccinated "as theyconsider there is no benefit as vaccines do not prevent infection per se".[290] It is clear that the applicants' views are genuinely held. The "correctness" or"validity" of those beliefs is not challenged. But as Professor Trebilco's evidencenotes, the applicants' views are not necessarily accepted by all Christians, or even amajority of them.89 I am satisfied that the substance of the applicants' concerns wasput to and considered by the Minister. I also accept the respondents' submission thatthe requirement that a COVID-19 Order does not limit, or is a justified limit on, rightsaffirmed by the Bill of Rights Act cannot extend to a requirement that the Ministerconsider the religious views of every individual or group potentially affected by theOrder.Unreasonableness[291] The FTBC applicants allege that the Minister acted unreasonably by makingdistinctions in the Order that are not supported by public health principles. FTBC'ssubmissions amended the argument somewhat, covering the same submissions as inrelation to their s 15 Bill of Rights Act claim.[292] I agree that, as in NZDSOS,90 this ground does not meaningfully add to thearguments about whether the s 15 rights were justifiably limited.Exemption under cl 105 of the Order[293] Finally, the Orewa applicants say the Director-General did not grant them anexemption pursuant to cl 105 of the Order. Clause 105 provides:Subpart 2—Director-General may grant exemptions105 Power for Director-General to grant exemptions from this order(1) The Director-General may exempt any class of persons, businesses,services, or goods (or any person, business, service, or goods) fromthe application of any provision of this order or from the requirementto comply with any provision of this order in accordance with thisclause.(2) The Director-General may grant an exemption if satisfied that—(a) the exemption is necessary or desirable in order to promotethe purposes of the Act or the purposes of this order; and89 Professor Trebilco particularly disputes Dr Flannagan's evidence that the effect of the Order wasto require excommunication by excluding people from communal fellowship and worship.90 NZDSOS v Minister for Covid-19 Response, above n 60, at [144].(b) the extent of the exemption is not broader than is reasonablynecessary to address the matters that gave rise to theexemption.[294] The Orewa applicants' statement of claim does not seek any relief against theDirector-General and Ms Flannagan confirmed at the hearing that the Orewaapplicants had not applied for an exemption under cl 105. For that reason, therespondents have not had the opportunity to present evidence on exemptions. Nor isit clear whether the pleading is that the Director-General should have made anexemption under cl 105 for the applicants specifically, or for those who have areligious belief that conflicts with the gathering restrictions, or that faith-basedgatherings generally ought to have been exempted from the gathering restrictions.[295] Given these deficiencies, any claim in relation to cl 105 cannot succeed.Conclusions[296] In relation to the Order as introduced, I conclude that the Order was not anunjustifiable limitation on the applicants' rights under s 15 of the Bill of Rights Act.[297] In relation to Order once Omicron had arrived in the community, I concludethat the Order was not an unjustifiable limitation on the applicants' rights under s 15of the Bill of Rights Act.[298] As noted earlier in this judgment, the Order in its current form includes agathering limit at Red. New Zealand is currently at Orange. A shift to Red wouldoccur in the event of the Orange setting no longer containing the virus. If and whenthat were to occur, the Court's consideration of any further challenge to the Orderwould necessarily be context and fact-specific.Costs[299] The respondents acknowledge that, given the fundamental rights at issue andthe public interest in these matters, they do not seek costs in the proceeding.Gwyn J