BROADBENT and STEVENSON v THE CHIEF EXECUTIVE OF THE MINISTRY OF HEALTH and THE CHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT [2022] NZHC 159

BROADBENT and STEVENSON v THE CHIEF EXECUTIVE OF THE MINISTRY OF HEALTH and THECHIEF EXECUTIVE OF THE MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT [2022] NZHC159 [11 February 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2022-404-86[2022] NZHC 159UNDER The Habeas Corpus Act 2001IN THE MATTER OF An application for writ of habeas corpusBETWEEN STEPHEN GEORGE BROADBENT andKERRY JOY STEVENSONApplicantsAND THE CHIEF EXECUTIVE OF THEMINISTRY OF HEALTH and THE CHIEFEXECUTIVE OF THE MINISTRY OFBUSINESS, INNOVATION &EMPLOYMENTRespondentsHearing: 10 February 2022 (by telephone)Counsel: Applicants in personV McCall and A P Lawson for the respondentsJudgment: 11 February 2022JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 11 February 2022 at 11:00am pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy Registrar[1] Mr Broadbent and Ms Stevenson were planning to arrive in New Zealand byair from Australia on 2 February 2022. They knew that on arrival they would besubject to a general requirement, pursuant to orders made under the COVID-19 PublicHealth Response Act 2020 (the COVID Act), that they be isolated or quarantined ata managed isolation or quarantine facility (MIQF).[2] On 28 January 2022, in advance of their arrival, Mr Broadbent andMs Stevenson applied for an exemption from the general requirement to be isolated orquarantined at an MIQF. They asked for home isolation instead. They say theyreceived no response to their application. Instead, on their arrival in New Zealand on2 February 2022 they were detained at an MIQF, where they currently remain.[3] They say their application was processed arbitrarily and in breach of principlesof natural justice. They also say the decision to refuse an exemption (which they saywas communicated to them only by the fact of their being detained at the MIQF) wasnot a reasoned and proportionate response to the outbreak or spread of COVID-19.[4] For those reasons they say the refusal of an exemption was invalid and thattheir detention is accordingly unlawful. They apply for a writ of habeas corpusordering their release from detention at the MIQF.[5] The Chief Executive of the Ministry of Business Innovation and Employment(MBIE), under whose authority Mr Broadbent and Ms Stevenson are being detained,says the detention is lawful. Alternatively, the Chief Executive says an application fora writ of habeas corpus is not the appropriate procedure for considering the allegationsmade by Mr Broadbent and Ms Stevenson — they should have applied for a judicialreview. For either reason, the Chief Executive says I should refuse the application.[6] I have to decide (i) whether the Chief Executive has established that thedetention of Mr Broadbent and Ms Stevenson is lawful and (ii) whether I should inany event refuse the application for a writ of habeas corpus on the ground that theapplication is not the appropriate procedure for considering the allegations raised byMr Broadbent and Ms Stevenson.The background in more detail[7] Mr Broadbent and Ms Stevenson live in Greenhithe, Auckland. They hadoriginally planned to arrive in New Zealand, from Queensland, on 16 January 2022.They had obtained an MIQ voucher enabling them to do so.[8] Well in advance of that planned arrival they applied, on 22 November 2021,for an exemption allowing them to isolate at home rather than in an MIQF. They madetheir application under cl 12 of the COVID-19 Public Health Response (Isolation andQuarantine) Order 2020 (the IQ Order). I set out relevant parts of the IQ Order laterin this judgment.[9] In asking for an exemption, Mr Broadbent and Ms Stevenson said (amongother things) that they had been in Queensland for over six months and they would bedouble vaccinated. The Chief Executive declined that application on about24 December 2021, in part because of the threat of the Omicron variant of COVID-19.[10] Mr Broadbent told me that he and Ms Stevenson accepted that decision. Henonetheless explained to me concerns that he had with the application process, as hesaid that these remained relevant to their complaints about the way their later(January 2022) exemption application was processed. He said MBIE's website didnot allow applications to be made for home isolation. The only way he could progressan application for home isolation was by an email to various persons at both MBIEand the Ministry of Health. He said he was directed by MBIE back to the website, buteventually the "Isolation Exemptions Team" at MBIE dealt with his application byemail.[11] As it turned out, Mr Broadbent and Ms Stevenson were in any event unable totravel to New Zealand on 16 January 2022. This was because they both tested positivefor COVID-19 on 15 January 2022.[12] Mr Broadbent and Ms Stevenson managed to obtain another MIQ voucher, thistime for 2 February 2022. On 28 January 2022, Mr Broadbent sent an email to theIsolation Exemptions Team asking them to reconsider Mr Broadbent and MsStevenson's application for home quarantine "on the grounds of changedcircumstances". He then set out what he said were the changed circumstances. Theseincluded that there were likely to be more community cases of Omicron than bordercases, that there were many community cases of Omicron isolating at home, and thathe and Ms Stevenson were both double vaccinated and had had COVID-19 and so"there is hardly anyone in the world less likely to get covid than us".[13] Mr Broadbent received an email reply from the Isolation Exemptions Team thenext day, 29 January 2022. It began: "Thank you for your email. We understand thatthis is not the outcome you were looking for." The email then explained the processfor making complaints. It noted that "if you would like for your request to bereconsidered, you will need to submit a new application with new relevant evidence".[14] Mr Broadbent replied by email saying he was not making a complaint, that hewas making a request to reconsider the application in light of changed circumstances.He asked that the application be properly considered. The Isolation Exemptions Teamresponded that "we are unable to reconsider your application based on the sameinformation". Mr Broadbent replied that "This is not the same information. If youread it you will clearly see that it relates to new information and changedcircumstances". The Team's further response was "if you would like us to considerthe new information, you will need to submit a new application".[15] These email exchanges all occurred on 29 January 2022. On 31 January 2022,Mr Broadbent sent a further email saying "If you insist, Please treat this as a newapplication under s12 (3) considering all of the information attached and already heldby you." His email attached a document that essentially repeated what was set out inhis email of 28 January 2022. It also attached his and Ms Stevenson's earlierCOVID-19 positive test results.[16] Mr Broadbent told me that he received no reply to his January 2022 applicationfor exemption. He said the only "communication" of any decision by MBIE to refusethe application was their treatment on arrival in New Zealand, when officials directedthem to, and then detained them in, the MIQF.[17] Mr Broadbent also told me that they have been told by the manager of theMIQF that they have to remain there until 6.45 pm on 12 February 2022. This isslightly earlier than the full ten days of isolation.1[18] Mr Broadbent and Ms Stevenson had initially considered challenging theirdetention by way of judicial review. They had drafted a judicial review application.They filed that draft with their habeas corpus application. They said they decided notto pursue the judicial review application because they knew it could not be determinedbefore their period of isolation and quarantine in the MIQF was completed.Mr Broadbent's and Ms Stevenson's submissions[19] Mr Broadbent made clear and articulate submissions. Ms Stevenson relied onMr Broadbent's submissions.[20] Mr Broadbent submitted that the distinction between arbitrary detention andlawful detention depended first on whether the process had been arbitrary. In order tobe lawfully detained, he said there had to be a proper process in accordance with theprinciples of natural justice. He said MBIE had not followed natural justice principles.Its process was arbitrary. Here, he referred me to the way in which MBIE had dealt(or failed to deal) with his application in late January 2022. He said no decision onthe application had been communicated to him and Ms Stevenson. If there had beena decision, no reasons for the decision were given. It followed, he said, that thedecision on their exemption application was arbitrary and unlawful.[21] As well as criticising the process, Mr Broadbent submitted that any decision torefuse their application was not a reasoned and proportionate response to the outbreakor spread of COVID-19, and therefore was unreasonable and invalid. HereMr Broadbent referred to the changed circumstances that he had put forward in makingthe application in January 2022. He said there was no data suggesting that anyonewho had been double vaccinated and had recently recovered from COVID-19 had thentested positive. He said he and Ms Stevenson were at present the least likely people1 The manager of an MIQF has a discretion to allow a slightly earlier departure time: COVID-19Public Health Response (Isolation and Quarantine) Order 2020, cl 11.in New Zealand to catch COVID-19. He said it made no sense for them to have toisolate in an MIQF rather than at home when thousands of people in the communitywho actually had COVID-19 were allowed to isolate at home. He said this wasespecially so, given that any decision-maker had to have regard to his andMs Stevenson's rights under the New Zealand Bill of Rights Act 1990. In this respect,Mr Broadbent relied on Venning J's judgment in Bolton v Chief Executive of theMinistry of Business, Innovation and Employment.2The Habeas Corpus Act 2001[22] An application for a writ of habeas corpus is an application to challenge thelegality of a person's detention.3 Detention includes every form of restraint of libertyof the person.4 Mr Broadbent and Ms Stevenson's liberty is being restrained while inthe MIQF and so they are subject to detention in terms of the Habeas Corpus Act.[23] On an application for a writ of habeas corpus, it is for the defendant to establishthat the detention is lawful. If the defendant fails to establish the lawfulness of thedetention, the Court must, subject to limited exceptions, grant the writ ordering therelease of the detained person from detention.5 One exception is that the Court mayrefuse to grant the writ, without requiring the defendant to establish the lawfulness ofthe detention, "if the court is satisfied that an application for the issue of a writ ofhabeas corpus is not the appropriate procedure for considering the allegations madeby the applicant".6The Chief Executive's position[24] The Chief Executive says that the detention of Mr Broadbent andMs Stevenson is lawful under the COVID Act and under orders that have been madeunder that Act. In particular, applying for an exemption from isolation at an MIQFunder cl 12 of the IQ Order does not render isolation at an MIQF unlawful unless anduntil an exemption is granted. So, even assuming that the decision on the exemption2 Bolton v Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC2897.3 Habeas Corpus Act 2001, s 6.4 Section 3.5 Section 14(1).6 Section 14(1A)(b).application was invalid (which the Chief Executive does not accept), that simplymeant that the default position under cl 12 prevailed, namely that Mr Broadbent andMs Stevenson were required to isolate or quarantine in an MIQF. Their detention wastherefore lawful.[25] Alternatively, the Chief Executive relies on s 14(1A)(b) of the Habeas CorpusAct, saying that the allegations made by Mr Broadbent and Ms Stevenson should beventilated in an application for judicial review, not an application for a writ of habeascorpus.[26] Ms McCall, for the Chief Executive, told me that Mr Broadbent andMs Stevenson's application for an exemption was being reconsidered. That processhad, however, not been completed at the time of the hearing before me.Issues[27] As indicated earlier, there are two issues for me to decide.[28] First, has the Chief Executive established that the detention of Mr Broadbentand Ms Stevenson is lawful? In answering that issue, I will address Mr Broadbent'sarguments that the detention is unlawful because MBIE acted arbitrarily, in breach ofnatural justice and unreasonably in responding to the exemption application.[29] The second issue arises only if the Chief Executive has not established that thedetention of Mr Broadbent and Ms Stevenson is lawful. I then have to considerwhether I should in any event refuse the application for a writ of habeas corpus on theground that the application is not the appropriate procedure for considering theallegations raised by Mr Broadbent and Ms Stevenson.Has the Chief Executive established that the detention of Mr Broadbent andMs Stevenson is lawful?[30] The starting point is cl 8 of the COVID-19 Public Health Response(Air Border) Order (No 2) 2020. Clause 8(3) provides that a person who arrives inNew Zealand by air "must be isolated or quarantined in accordance with the [IQOrder]".[31] Clause 8(3) applied to Mr Broadbent and Ms Stevenson. They were thereforerequired to be isolated or quarantined in accordance with the IQ Order.[32] Clause 12(1) of the IQ Order provides that a person's place of isolation orquarantine is "the high-risk MIQF or low-risk MIQF that is allocated to that person"by the Chief Executive after a suitably qualified health practitioner determineswhether the person should be allocated a high-risk MIQF or low-risk MIQF.Clause 12(1) is the provision that imposes the general requirement that a personarriving in New Zealand by air undertake isolation or quarantine in an MIQF.[33] I understood from Mr Broadbent that he and Ms Stevenson were allocated alow-risk rather than a high-risk MIQF. They do not challenge that particular decision.They challenge the Chief Executive's response to their application for an exemptionfrom the requirement to isolate or quarantine in any MIQF.[34] The possibility of such an exemption is provided by cl 12(2), which provides:7However, a medical officer of health may instead determine for any reason(for example, for medical evacuation) that a person's place of isolation orquarantine is any other facility or place.[35] Under cl 12(2) a medical officer of health can determine, for example, that aperson's place of isolation or quarantine is their home. That was the determination forwhich Mr Broadbent and Ms Stevenson applied.[36] Mr Broadbent and Ms Stevenson say that the Chief Executive's decision ontheir exemption application was arbitrary, in breach of natural justice andunreasonable. They say the decision was therefore unlawful. I will assume for themoment that their arguments are correct and that the Chief Executive's decision wasunlawful. The problem for Mr Broadbent and Ms Stevenson (on this habeas corpusapplication, I emphasise) is that, even if the Chief Executive's decision was unlawful,7 I note that, in addition, cl 12(2A) sets out mandatory considerations for a determination undercl 12(2) and cl 12(3) places a filter on cl 12(2). Neither subclause is relevant on this application.the only relevant8 consequence is that there has been no valid decision under cl 12(2).9In the absence of any valid decision under cl 12(2), the general rule in cl 12(1) applies,and Mr Broadbent and Ms Stevenson's place of isolation or quarantine is the MIQFthat has been allocated to them. Their detention in that MIQF is therefore lawful.[37] In short, and as Ms McCall put it, the default position under cl 12(1) is that aperson arriving in New Zealand by air is required to isolate or quarantine in an MIQF.That default position prevails unless and until an exemption is granted under cl 12(2).Because no exemption has been granted, the default position prevails, even if thedecision refusing an exemption was unlawful.[38] The position would be different if the requirement to isolate or quarantine inan MIQF arose only on the Chief Executive deciding that a person should be subjectto such a requirement. A valid decision by the Chief Executive would then be aprerequisite to the lawfulness of detention in an MIQF. But that is not how theIQ Order operates. Under the IQ Order, that requirement is imposed directly bycl 12(1).[39] For these reasons, the Chief Executive has satisfied me that the detention ofMr Broadbent and Ms Stevenson is lawful. I therefore decline the application for awrit of habeas corpus.Should I refuse the application on the ground that the application is not theappropriate procedure for considering the allegations raised by Mr Broadbentand Ms Stevenson?[40] On the view that I have reached on the first issue, I do not have to reach aconclusion on this second issue. I nonetheless record that I accept Ms McCall'ssubmission that the challenges that Mr Broadbent and Ms Stevenson made to thedecision-making process, and to the substance of the decision itself, are not ones thatcan be appropriately considered on an application for a writ of habeas corpus.8 That is, relevant to the lawfulness of their detention, which is what is at issue on this application.9 At times in his submissions I understood Mr Broadbent to contend that the Chief Executive hadnot made any decision at all. Even assuming that to be so, the same consequence (that there wasno valid decision under cl 12(2), so that the general rule in cl 12(1) applies) would follow.[41] This is not to say anything about the merits of Mr Broadbent andMs Stevenson's challenges. It is merely to say that the summary procedure that isadopted for a habeas corpus application is not appropriate for those challenges. Here,there was no affidavit evidence filed in support of the application, the Chief Executiveprepared and filed a notice opposition within 24 hours of receiving the application,and I heard the application a few hours later. Unsurprisingly, the Chief Executive wasnot able to prepare and file affidavit evidence before the hearing.[42] This urgent procedure is appropriate (and required10) where the lawfulness ofa person's detention is being challenged. But it will not often lend itself to fairdetermination of administrative law challenges to decision making.11 The challengesmade by Mr Broadbent and Ms Stevenson, both as to process and substance, could befairly determined only after the Chief Executive had the opportunity to respond withaffidavit evidence. That opportunity would arise in a judicial review proceeding, butit could not arise on this habeas corpus application.[43] In saying this, I make no criticism of Mr Broadbent and Ms Stevenson. Theycandidly said that their first inclination had been to file a judicial review proceeding.[44] For completeness, my refusal of this application does not preventMr Broadbent and Ms Stevenson from pursuing a judicial review proceedingchallenging the Chief Executive's response to their exemption application. Iappreciate, of course, that they may regard the time and expense of such a proceedingas pointless given that it would be determined after their detention in the MIQF iscomplete.Costs[45] The parties did not address costs. I consider there should be no order as tocosts. Mr Broadbent and Ms Stevenson pursued their challenges to the ChiefExecutive's decision in a responsible and balanced way. Their challenges to thedecision are, at least on administrative law grounds, not wholly without merit.10 Habeas Corpus Act, s 9.11 See Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA), whichis now reflected in s 14(1A)(b) of the Habeas Corpus Act.Result[46] I decline the application for a writ of habeas corpus. I make no order as tocosts.______________________Campbell J