STEEDMAN v THE NEW ZEALAND POLICE [2023] NZHC 1617

STEEDMAN v THE NEW ZEALAND POLICE [2023] NZHC 1617 [27 June 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2022-483-26[2023] NZHC 1617BETWEEN TINA AROHA STEEDMANAppellantAND THE NEW ZEALAND POLICERespondentHearing: 9 March 2023Appearances: S K Green for AppellantJ C H Liu and J J Harvey for RespondentJudgment: 27 June 2023JUDGMENT OF McQUEEN J[1] On 18 July 2022, Ms Tina Steedman (the appellant) was convicted byJudge Krebs in the Taihape District Court of an offence under s 26(1) of the COVID-19 Public Health Response Act 2020 (the Act).1 On 21 October 2022, she wassentenced by Judge Krebs, who concluded that the matter could be dealt with by wayof conviction and discharge.2[2] Ms Steedman now appeals both her conviction and sentence. She says that theDistrict Court made errors of law in determining whether her exercise of certainfundamental rights could be taken into account when considering the offending. Shesays that the rights to freedom of expression and peaceful assembly are capable ofbeing read into orders made under the Act so as to excuse any criminal liability. Shecontends that the Judge should have discharged her without conviction pursuant toss 106 and 107 of the Sentencing Act 2002.1 Police v Ngarimu [2022] NZDC 13518. [Results Judgment].2 Police v Steedman [2022] NZDC 21075. [Sentencing Judgment].[3] Ms Steedman's appeal is opposed. The Police (the respondent) submit that thetext of the relevant order made under the Act cannot properly be interpreted to exemptcriminal liability, and the limits imposed on Ms Steedman's rights were justified in afree and democratic society. The Police say that the general consequences of theconviction were not outweighed by the gravity of the offence.[4] For the reasons set out below, I dismiss the appeal.BackgroundThe COVID-19 pandemic and related legislation[5] The circumstances and effect of the COVID-19 pandemic are well known, andno purpose is served by repeating them here. I will confine the background relevant tothis appeal to the relevant circumstances and legislation that led to the filing of chargesagainst Ms Steedman and her co-defendants.[6] The Act was passed on 13 May 2020. The purpose of the Act is to support apublic health response to COVID-19 that:3(a) prevents, and limits the risk of, the outbreak or spread of COVID-19(taking into account the infectious nature and potential forasymptomatic transmission of COVID-19); and(b) avoids, mitigates, or remedies the actual or potential adverse effects ofthe COVID-19 outbreak (whether direct or indirect); and(c) is co-ordinated, orderly, and proportionate; and(d) allows social, economic, and other factors to be taken into accountwhere it is relevant to do so; and(e) is economically sustainable; and3 COVID-19 Public Health Response Act 2020, s 4.(f) has enforceable measures, in addition to the relevant voluntarymeasures and public health and other guidance that also support thatresponse.[7] Part 2 of the Act concerns the making of COVID-19 orders by the Minister forCOVID-19 Response (the Minister). Such orders made under s 11 are secondarylegislation.4[8] Section 8 provides that COVID-19 orders under the Act can only be made incertain circumstances. Section 9 addresses the requirements for making orders unders 11 of the Act. It states:(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 the NewZealand 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.4 COVID-19 Public Health Response Act 2020, s 11(8).(2) Nothing in this section requires the Minister to receive specific advicefrom the Director-General about the content of a proposed order orproposal to amend, extend, or revoke an order.[9] Section 12 of the Act sets out generally what COVID-19 orders may providefor. It states:(1) A COVID-19 order may—(a) impose different measures, including requirements,restrictions, directions, and conditions, for differentcircumstances and different classes of persons, places,premises, craft, vehicles, or other things:(aa) specify the evidence (including any particular form ofevidence) that may be required to be produced to demonstratecompliance with a requirement, restriction, direction, orcondition:(b) apply,—(i) in relation to persons, generally to all persons in NewZealand or to any person or specified class of personsin New Zealand:(ii) in relation to places, premises, craft, vehicles, or otherthings, to any class or to all of them:(iii) in relation to anything else,—(A) generally throughout New Zealand:(B) in any area, however described:(c) provide that any provision of a COVID-19 order (even if theprovision is beneficial) does not apply in any specifiedcircumstances, in any specified way, or to any specifiedpersons, places, premises, craft, vehicles, or other things, orto any specified class of persons, places, premises, craft,vehicles, or other things:(d) authorise the Director-General, subject to any criteria orconditions specified in the order, to do any of the followingthings by written notice:(i) specify, determine, designate, define, or approve anymatters, impose conditions, or give directions, requiredfor the operation of a provision of this Act or a COVID-19 order, including matters that affect or determine theapplication, operation, or scope of a provision:(ii) determine that any provision of this Act or a COVID-19 order (even if the provision is beneficial) does notapply in any specified circumstances, in any specifiedway, or to any specified persons, places, premises,craft, vehicles, or other things, or to any specified classof persons, places, premises, craft, vehicles, or otherthings:(e) if any thing can be prohibited under section 11, permit thatthing but only subject to specified conditions.[10] Section 13 addresses the effect of COVID-19 orders. It states:(1) A COVID-19 order may not be held invalid just because—(a) it is, or authorises any act or omission that is, inconsistent withthe Health Act 1956 or any other enactment relevant to thesubject matter of the order; or(b) it confers a discretion on any person, or allows any matter orthing to be granted, specified, determined, designated,defined, approved, or disapplied by any person, or allows aperson to impose conditions or give directions, whether or notthere are prescribed criteria.(2) However, subsection (1)(a) does not limit or affect the application ofthe New Zealand Bill of Rights Act 1990.(3) To avoid doubt, nothing in this Act prevents the filing, hearing, ordetermination of any legal proceedings in respect of the making orterms of any COVID-19 order.[11] Section 26(1) provides that a person commits an offence if they intentionallyfail to comply with a COVID-19 order. An individual who commits an offence againsts 26(1) is liable on conviction to imprisonment for a term not exceeding six months,or a fine not exceeding $5,000.5 Section 26(3) provides that a person commits aninfringement offence if they do anything specified as an infringement offence in theAct or a COVID-19 order. Section 26(4) provides that a person who commits aninfringement offence is liable to an infringement fee or a fine, as provided in thesubsection.[12] The relevant order in the present case is the COVID-19 Public Health Response(Alert Level Requirements) Order (No 12) 2021 (the Order), which came into force at11:59 pm on 21 September 2021.6 It has since been revoked, at 11.59 pm on5 COVID-19 Public Health Response Act 2020, s 26(2).6 COVID-19 Public Health Response (Alert Level Requirements) Order (No 12) 2021, cl 2(1).2 December 2021, by cl 107 of the COVID-19 Public Health Response (ProtectionFramework) Order 2021.[13] The purpose of the Order was to "prevent, and limit the risk of, the outbreak orspread of COVID-19 and to otherwise support the purposes of the Act".7 It establishedareas to which specific 'Alert Levels' were to apply. Of note in the present case is thatthe wider Auckland Region, as specified in schs 3 and 4 of the Order, was designatedas an 'Alert Level 3' area.8 Part 3 of the Order addressed Alert Level 3 restrictions,including on essential personal movement, controlled gatherings and limited outdoorgatherings. Generally, persons residing within those areas were required to stay homeand avoid all non-essential travel.[14] Relevant to the present appeal, cl 17 of the Order stated:17 Restrictions on travel into, out of, or through alert level areas(1) A person in one alert level area may go into, out of, or through anotheralert level area only if—(a) the travel is for 1 or more of the purposes permitted underclause 18; and(b) the person, so far as is reasonably practicable, travels directlywithout stopping while in the other alert level area (except forthe permitted purpose of the travel under clause 18 or apermitted airport transfer).[15] Clause 18 and sch 5 specified in detail the reasons for which persons werepermitted to travel into, out of, or through alert level areas. Broadly, permittedpurposes were: essential work, shared caregiving arrangements, care of children andothers, students attending registered schools, accessing health services, leaving orrelocating from hospitals, accessing judicial institutions, leaving or relocating homeon court order, leaving New Zealand, emergencies, returning home after isolation orquarantine, caring for pets or animals, going home, or relocating home or places ofresidence. Travelling to attend a political protest was not a purpose that was permittedby cl 18 and sch 5.7 Clause 3.8 Clause 6.The offending[16] On 16 October 2021, Ms Steedman and her two co-offenders travelled fromTaihape to Auckland. At the time, Taihape (being in the Rangitikei District) was inAlert Level 2, and Auckland was in Alert Level 3. Ms Steedman and her co-offenderstravelled to Auckland for the purpose of attending public protests against governmentimposed COVID-19 measures held in the Auckland Domain and organised byBrian Tamaki. They then returned to Taihape.[17] The police became aware of the travel following Ms Steedman posting aphotograph on social media of herself at the Auckland Doman, with the AucklandMuseum clearly visible in the background. She was later charged for intentionallyfailing to comply with cl 17 of the Order, pursuant to s 26(1) of the Act.[18] Ms Steedman gave a statement to the police in which she described:9 leaving Taihape about 6.30 am on 16 October, travelling throughTaumarunui, and reaching the border with the Auckland area where they werestopped at checkpoints. Ms Steedman was not the driver. The woman who wasdriving spoke to the police officer. Despite being encouraged not to do so, thetrio proceeded through the checkpoint and went to the Auckland Domain nearthe museum. Ms Steedman was at pains to stress that it was just the three ofthem in their "bubble".They arrived late to the Domain and missed most of the rally. However, shesaid that they caught the last speaker, Brian Tamaki, who spoke for a [sic]about 15 minutes.Ms Steedman explained that the three had lunch together under the treesbefore locating a toilet at a service station at St Luke's. They stayed at theservice station for about 10 to 15 minutes paying for fuel and something todrink before carrying on back to Taihape via Otorohanga.[19] Ms Steedman showed regret and remorse for her actions when giving herstatement to the police, and confirmed the accuracy of the statement she had given.109 Results Judgment, above n 1, at [6]–[8].10 At [10]–[11].The Results Judgment[20] Following a judge-alone trial on 14 June 2022, the Judge delivered his resultsjudgment on 18 July 2022. 11 His Honour discussed the statement Ms Steedman gaveto the police, and recorded:[35] Ms Steedman made full and frank admissions to Sergeant Demchy. Iam in no doubt whatsoever that Ms Steedman travelled to Auckland in breachof the COVID-19 order.[36] The defence advanced on her behalf, however, is that she was entitledto do so because she was exercising her rights to freedom of association andfreedom of speech guaranteed by the New Zealand Bill of Rights Act.[21] The Judge concluded that the defence advanced on behalf of Ms Steedman wasnot available, stating:[41] Although ss 13(2) and (3) of the COVID Response Act state thatCOVID orders made under that Act do not limit or affect the application ofthe New Zealand Bill of Rights Act 1990 ("NZBORA"), and clarify thatchallenges may be made to such orders, those provisions do not change thatfact that reading the No 12 Order in a way which would permit the charges tobe defended on the basis that the defendants were exercising their NZBORArights would require "considerable interpolation and judicial amendment" ofthe Order.12 To allow such a defence would effectively require an additionalparagraph in clause 18 specifying that the purposes for which New Zealanderswere permitted to travel to an Alert Level 3 area included protesting.[42] In reality, the New Zealand Government specifically chose not toprovide that purpose as one for which New Zealanders were permitted totravel.[43] Even if that decision, and therefore the No 12 Order, is inconsistentwith the NZBORA rights to freedom of movement and peaceful assembly, thecourts are still required to apply the Order.13 Section 4 of the NZBORArequires as much .[44] In other words, I must apply the law as it stands/stood, and cannotchoose to decline to convict the defendants, should I find that the elements ofthe charge are proved beyond reasonable doubt, by reason only that the No 12Order is possibly inconsistent with the NZBORA.11 Results Judgment, above n 1.12 This footnote recorded: I use that quote as Ellis J used it in Taylor v Attorney-General [2014]NZHC 2225 in determining that the plain wording of s 80(1)(d) of the Electoral Act 1993 couldnot be read in a way that was consistent with the s 12 NZBORA right to vote, and that the provisionwas therefore inconsistent with that right.13 This footnote recorded: I note here that a criminal prosecution is not the appropriate forum fordetermining whether the Order is inconsistent with the New Zealand Bill of Rights Act 1990.[22] The Judge considered that s 4 of the NZBORA meant that he was bound toapply the Order and the Act notwithstanding that it may possibly be inconsistent withss 14 and 16 of the NZBORA. He commented:14In any event, the High Court has already, in Borrowdale v Director-Generalof Health, commented to the effect that limits created by previous, much morerestrictive and rights-infringing Government orders made in response to theCOVID-19 pandemic were limits that were demonstrably justified in a freeand democratic society in accordance with s 5 of the NZBORA.15[23] His Honour concluded:[53] In summary, even if cls 17 and 18 of the No 12 Order are bothinconsistent with the rights affirmed in ss 14 and 16 of the NZBORA and arenot a justified limit on those rights – and I have my doubts given the seniorcourt comments in Borrowdale about the earlier, more restrictive orders beingjustified limitations – I must still give the No 12 Order its natural meaningand, in accordance with s 4 of the NZBORA, cannot decline to apply it byreason only that it is possibly inconsistent with the NZBORA.[54] Undoubtedly the rights to freedom of expression and freedom ofmovement and peaceful assembly are important rights, but in thecircumstances those rights were/are to be subordinated to the public policyindicated by the COVID Response Act 2020 and any orders lawfully madeunder it. By virtue of s 4 of the NZBORA, the legislation and orders mustprevail over those rights unless and until Parliament overturns them as beingunlawful.The Sentencing Judgment[24] The Judge issued his sentencing judgment on 21 October 2022. At thesentencing hearing, Ms Steedman sought a discharge without conviction, arguing thatthe offending was very minor offending and a low-level offence, that the purpose ofthe travel could be taken into account, that there had been no deception involved, thatonly a small time was spent in Auckland, that Ms Steedman had confessed, and thatshe had expressed remorse.[25] The Judge considered that the offending did not involve a low level ofculpability but was rather a premeditated and deliberate act undertaken in the face ofsignificant publicity as a protest against the very rules that were being flouted, and14 Results Judgment, above n 1, at [48].15 This footnote recorded: Borrowdale v Director-General of Health [2020] NZHC 2090, [2020]2 NZLR 864; and Borrowdale v Director-General of Health [2021] NZCA 520, [2022] 2 NZLR356.therefore Ms Steedman's culpability was moderately serious.16 His Honour noted thatno evidence was filed as to the consequences of a conviction.[26] The Judge concluded:[11] It is true that this is a relatively minor offence but I have indicated myview that it is a moderately serious example of it. In my view, theconsequences are not out of all proportion to the gravity of the offending. Ihave said earlier that this was a deliberate and flagrant breach of theregulations for the purpose of protesting against their very existence butpublicity was widely made that prosecutions would be commenced andpursued by police for such breaches and many were.[12] Any justifying reasons for this other than a desire to protest are absent.Similarly, there are no specific consequences of a conviction as acknowledgedby Ms Green and it is only the general consequences arising from a convictionin any case which are present here.[13] In my view, Ms Steedman must have known the likely consequencesshould she breach the rules in the way that she did and might have expectedat the time to have weighed that risk into the decision to go and protest.[14] In the circumstances, I decline the application to discharge withoutconviction.[15] Having made those general remarks about the seriousness of theoffence and so forth and having regard to the factors relating to bothdefendants generally, it is my view that this matter can be dealt with by wayof the entering of a conviction only and there will be no other penalty. Thatthen is the end of the matter.The grounds of appeal[27] The grounds of appeal as recorded in Ms Green's written submissions onbehalf of Ms Steedman are:(a) the Judge erred in not considering whether Ms Steedman's rights underthe New Zealand Bill of Rights Act 1990 (the NZBORA) could bereconciled with the Order;(b) the Judge misconstrued Ms Steedman's case, which was that she hadbreached the Order, but that rights protected under the NZBORA werecapable of being read into the Order;16 Sentencing Judgment at [6]–[7].(c) the Judge incorrectly applied Taylor v Attorney-General, and thereforedid not consider:17(i) the rights in question;(ii) the purposes of the relevant legislative instruments which werein conflict of the relevant protected rights;(iii) the factual circumstances, which showed Ms Steedmanexercising her rights, in breach of the Order, as against thosewho were permitted to pass through Alert Level borders undercls 17 and 18, and sch 5;(iv) what consequences (in her words "legislative mischief') wouldbe created by reading in rights protected by the NZBORA intothe Order; and(v) the scheme of the Act, particularly s 26 which provides twokinds of penalties for a breach of an Order;(d) the Judge erred in determining that Borrowdale cases applied toMs Steedman's case;18(e) the Judge erred in appearing to be applying ss 3, 4, and 6 analyses underthe NZBORA, where he referred to absolute rights, as Ms Steedmandid not argue that the relevant rights were absolute or limitless.[28] Ms Green seeks that Ms Steedman's conviction be quashed, set aside, or aconviction of the "lesser offence under s 26" be entered.17 See Taylor v Attorney-General [2014] NZHC 2225.18 See above n 14.Approach to appeal[29] An appeal against a refusal to discharge without conviction is viewed as acomposite appeal against conviction and sentence.19 The appeal must be allowed onlywhere a miscarriage of justice has occurred by virtue of a material error in enteringthe conviction or in applying s 107 of the Sentencing Act 2002.20 A miscarriage ofjustice means any error, irregularity, or occurrence in or in relation to or affecting thetrial that has created a real risk that the outcome of the trial was affected, or has resultedin an unfair trial or a trial that was a nullity. As noted recently by the Court of Appeal,the question is, in essence, simply whether the District Court's decision is wrong.21[30] Section 107 of the Sentencing Act governs discharges without convictiongenerally and states:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[31] This involves three elements:22(a) the gravity of the offending;(b) the consequences of the conviction; and(c) whether the latter is out of all proportion to the former.[32] If the threshold in s 107 is satisfied, then the Court has discretion under s 106of the Sentencing Act as to whether to grant discharge without conviction.19 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 14 at [6]–[16].20 Criminal Procedure Act 2011, s 232(2); Jackson v R, above n 25, at [12].21 Singh v R [2022] NZCA 23 at [8].22 Singh v R, above n 21, at [9], citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].AnalysisPreliminary remarks[33] The appeal was advanced solely on the basis that the Judge made errors of law.Ms Steedman's case does not challenge the lawfulness of the Order as such andMs Green was explicit that no application for judicial review was made. Rather theargument is that, properly interpreted in light of the NZBORA ("read up", as Ms Greendescribes it), the Order should permit travel for the purpose of political protest. Theparties did not deal with the case as a collateral challenge to the Order.23[34] I accept that an error of law made by the Judge could potentially constitute amiscarriage of justice, where it creates a real risk that the outcome of the trial wasaffected. Accordingly, I address Ms Steedman's appeal by considering whether theJudge made any error of law. If I conclude that an error of law has occurred, it willthen be necessary to consider what effect, if any, that has had on Ms Steedman'sconviction.Sections 14, 16, and 28 of the NZBORA[35] The rights relied upon by Ms Steedman are:(a) Section 14: Everyone has the right to freedom of expression, includingthe freedom to seek, receive, and impart information and opinions ofany kind in any form.(b) Section 16: Everyone has the right to freedom of peaceful assembly.(c) Section 28: An existing right or freedom shall not be held to beabrogated or restricted by reason only that the right or freedom is notincluded in the NZBORA or is included only in part.2423 Compare Chapman v Police [2023] NZHC 1435.24 Ms Green, counsel for Ms Steedman, accepted in oral submissions that s 28 "was probably notneeded" and did not identify any other right or freedom on which she relied. I therefore make nofurther comment on that section.[36] Ms Green submits that those rights combine as a "political protest right" of ahigher rank, as they are constitutional in nature. She says that the interpretation of theOrder should affirm those rights where the terms of the Order conflict with them. Shealso refers to s 13 of the Act and relies on the reasoning and approach of the SupremeCourt in Fitzgerald v R.25 She presumes that the rights relied upon are in fact engagedin the present case.[37] Mr Liu, on behalf of the Police in response, submits that:(a) The right to freedom of thought is not engaged, citing the Court ofAppeal in Moncrief-Spittle v Regional Facilities Auckland Ltd.26(b) The right to freedom of expression is not engaged as Ms Steedman wasnot prohibited from criticising the government or prevented fromexpressing her opinions as to how the government managed theCOVID-19 pandemic. Ms Steedman was free to express her viewsonline and have them imparted and received. Mr Liu relies on the viewof this Court in Borrowdale that the right to freedom of expression wasnot engaged by the original lockdown orders under the Health Act1956.27(c) The Court of Appeal in Borrowdale held that the InternationalCovenant on Civil and Political Rights (ICCPR) contained provisionsthat said the rights contained in ss 16, 17 and 18 could be restricted bylaw in circumstances where it was necessary to do so in the interests ofprotecting public health or the rights or freedoms of others. The Courtof Appeal also considered that the ICCPR recognised that the right tomovement, assembly, and association could be derogated, in that thoserights were not sacrosanct.2825 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.26 Moncrief-Spittle v Regional Facilities Auckland Ltd [2021] NZCA 142 at [112]; affirmed inMoncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138 [2022] 1 NZLR 459 at [65].27 See Borrowdale v Director-General of Health [2020] NZHC 2090, [2020] 2 NZLR 864 at [88].28 See Borrowdale v Director-General of Health [2021] NZCA 520, [2022] 2 NZLR 356 at [109].(d) Therefore, neither freedom of thought or expression are engaged, andthe right to freedom of movement and assembly can be limited if it isreasonable and demonstrably justified in a free and democratic society.There is no higher 'political protest right'.[38] The High Court in Borrowdale (comprising Thomas, Venning and Ellis JJ) didconclude that freedom of expression was not engaged by orders made by the Director-General of Health under s 70 of the Health Act 1956.29 The Court, however, concludedthat freedom of association was engaged, stating:30.Rather, we favour the assessment of the learned authors Butler and Butlerthat s 17 encompasses an individual's right to associate with any otherindividual:31 it is consistent with the broad ambit of the closely related rights of freeexpression (s 14 of BORA) and free assembly (s 16 of BORA). Secondly, inother human rights systems a narrow view of the ambit of free association isacceptable since the right to associate with other individuals in an informal,disorganised way would likely be protected by a right to privacy orautonomy. The absence of such rights from BORA means it is legitimate forthe right of free association to occupy the field that its ordinary meaningsuggests.[39] The Court of Appeal in Borrowdale agreed with the High Court that freedomof expression was not a right engaged by the three orders, stating:32The High Court held that the rights affirmed by ss 14 and 22 of the NZBORAwere not engaged in this case and preferred to focus on ss 16, 17 and 18. Wedo not understand Dr Borrowdale to be challenging that aspect of the HighCourt's judgment. In any event, we agree with the approach taken by the HighCourt and will proceed on the basis that it is the rights affirmed by ss 16, 17and 18 of the NZBORA that are engaged in this case.(footnotes omitted).[40] I accept that view, and the submissions made by Mr Liu in reliance upon it. Iconsider that s 14 of the NZBORA was not engaged by the Order and nor wasMs Steedman prevented by the Order from exercising her right under s 14.Ms Steedman was not prevented from protesting or expressing her views, only from29 Borrowdale v Attorney-General [2020] NZHC 2090, [2020] 2 NZLR 864 at [88].30 At [88].31 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd edition,LexisNexis, Wellington, 2015) at 778.32 Borrowdale v Director-General of Health [2021] NZCA 520, [2022] 2 NZLR 356 at [105].travelling across Alert Level borders for the purpose of doing so. Ms Green ultimatelyaccepted that this was the position.[41] Accordingly, from this point onwards, I consider Ms Steedman's appeal on thebasis of s 16 only, which I accept is engaged by the Order, being that it was directedto reducing the movement of persons throughout Aotearoa New Zealand for thepurpose of stopping the spread of COVID-19.The effect of Borrowdale[42] The three orders in issue in Borrowdale related to the initial Alert Level 4 andAlert Level 3 periods that were applied in March 2020, at the beginning of theCOVID-19 pandemic and its entry into Aotearoa New Zealand. They set out:(a) Order 1: the requirement that all premises to be closed, except (amongother things) private dwelling houses, and forbade people fromcongregating in outdoor places of amusement or recreation.33(b) Order 2: the requirement that all persons to be isolated or quarantinedby remaining at their current place of residence, except as permitted foressential personal movement, and to maintain physical distancing.34(c) Order 3: the requirements of Alert Level 3.35[43] Both the High Court and Court of Appeal in Borrowdale concluded that thethree orders, while engaging and limiting rights protected by the NZBORA, werejustified in a free and democratic society.36 The illegality that arose was becausecertain limitations imposed early in the COVID-19 response were not prescribed bylaw.33 Borrowdale v Director-General of Health [2020] NZHC 2090, [2020] 2 NZLR 864 at [26]. Thisorder was issued on 25 March 2020, under s 70(1)(m) of the Health Act 1956, and was effectivefrom 11:59 pm on that day until further notice.34 At [29]. This order was issued on 3 April 2020, under s 70(1)(f) of the Health Act 1965, and waseffective from 6:00 pm that day until 22 April 2020, unless otherwise revoked or extended.35 At [32]. This order was issued on 24 April 2020, again under the Health Act 1956, and waseffective from 11:59 pm the same day, until 13 May 2020.36 Borrowdale, above n 31, at [292]; and Borrowdale v Director-General of Health [2021] NZCA520, [2022] 2 NZLR 356 at [162].[44] The District Court Judge in the present case described the three orders as"much more restrictive and rights-infringing Government orders" than the Orderconcerned in the present case. I agree that is an apt description. The orders with whichthe courts in Borrowdale were concerned were the part of the government's very initialresponse to the pandemic, and represented the imposition of the "Go hard, go early"suppression policy agreed by Cabinet.[45] By the time 21 September 2021 arrived, and the Order in this case came intoeffect, the position, while still fraught with risk, was undoubtedly different. Thepassage of the Act created a reasoned and bespoke framework for the government toimplement a response to the variable levels of risk posed by COVID-19 and its notablevariants. The Order allowed permissible travel for a large number of defined purposes,between and within areas subject to particular Alert Levels—providing the basis for aconclusion that it is much less restrictive than the orders in Borrowdale.[46] The District Court Judge's conclusion was essentially that, as both theHigh Court and Court of Appeal considered that the more restrictive three orders inBorrowdale did not unjustifiably limit the right contained in s 16 of the NZBORA, itwas very unlikely that a less restrictive order did unjustifiably limit that right. Further,he considered that even if there was an unjustified limitation on the s 16 right, he wasrequired to apply the Act and the Order on their terms, in accordance with s 4 of theNZBORA.[47] Ms Green says:It is submitted the conflict between the 2 instruments (the No 12 Order andthe rights) can be resolved in favour of the Appellant by engaging in theinterpretative function as prescribed by Part I (ss 2,3,4, and 6 of BORA).Utilising s 13 of the parent Act to aid in this interpretation also assists and that[which] was not undertaken at all by the Court below. This is said to be anerror of law. Finally, common law assists, particularly the case of Fitzgeraldv R [2021] NZSC 131 in the interpretative function.[48] Ms Green submits that the analysis proposed by the NZBORA where alegislative instrument conflicts with protected rights was not undertaken by theDistrict Court Judge, and that this was an error of law. She says that a rights-infringinginterpretation should be avoided, and that therefore the three rights relied on byMs Steedman should be read into the Order, so as to provide a defence to theconviction.[49] Ms Green is correct that the Judge did not engage in a kind of analysis asenvisaged by Hansen v R.37 Instead, his analysis hinged upon the view that it wasunlikely that the Order could be considered an unjustifiable limitation on rightsaffirmed by the NZBORA. I consider that was a logical conclusion, and not in errorof law. It follows that I do not accept that the Judge erred in referring to and/or applyingthe conclusions of the High Court and Court of Appeal in Borrowdale, and therebytechnically refusing to engage in a full rights-analysis as sought by Ms Green.[50] The judgments in Borrowdale were clearly relevant, being as they were, anassessment of the rights implications of rights-limiting orders made in the context ofthe COVID-19 pandemic. I accept that they were made under different legislation andin the context of judicial review, but I do not think this makes the judgmentsinapplicable as contended by Ms Green. The issue remains the same—whether therelevant order unduly limited rights protected by the NZBORA.[51] It is also clear to me that in coming to that conclusion the District Court Judgedid not 'misconstrue' Ms Steedman's case. His Honour clearly understood thatMs Steedman contended that the proposed inconsistency of the Order with theNZBORA, and the principle that a rights-consistent interpretation is to be preferred,means that the Order should be read or interpreted in a manner consistent withNZBORA rights, and thereby provide a complete defence to Ms Steedman'sconviction.[52] However, for completeness, I will go on to consider the other matters raised byMs Green in argument.Can s 16 of the NZBORA be "read up" into the Order?[53] Ms Green submits that the Order and the rights relied upon by Ms Steedmancould be reconciled by:37 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.i. Acknowledging the political rights, exercised by the Appellant,were "higher" rights; not akin to the absolute right in s9 nor thefair trial right (again, limitless). The basis for these rights, ashigher rights, is that it strikes at the heart of any democracy thatit must be an "open society" – open to critique, to protest and toexamination by its citizens.ii. Next, there is no right to work nor to a certain standard of livingin New Zealand. The permissive nature of cl 17 and cl 18 as areason, only, for travel needs consideration, it is submitted,iii. The purposes of the Order and indeed the Act, were arguably notbeing upheld by permitting the wide range of movement byworkers and school students and those relocating back to or tonew homes. These permitted exceptions meeting the purposes ofthe Order and the Act means it can not do violence to the schemeof the Act, by reading up the rights, rather than reading themdown.iv. The provision of other measures, in place at this time, along withthe prohibition of movement into Auckland, means that thepurposes of the Order and the Act could be met should theAppellant have exercised her political rights in a certain factualway (distancing, not lingering, no contact with multiple placesetc). That she did do so must count in balancing equation. Theconsideration of the rights, and the contest as against thelegislative instruments must not be considered in a vacuum. Theyought to be considered in a factual context. This is basic statutoryinterpretation.(footnotes omitted)[54] Ms Green submits that s 13 of the Act and the principle of legality generallystrengthens the principle that clear wording is required for legislation to be construedas overriding fundamental freedoms. As noted, s 13 of the Act provides that COVID-19 orders do not limit or affect the application of the NZBORA. Ms Green says therights-consistent interpretation need only be possible.[55] I also understood Ms Green to submit that to require Ms Steedman to exercisethose rights from her home in Taihape, without having crossed Alert Level borders,would also have unfairly limited her rights, as political protest "shall by its nature bedestructive". She says: "The rights (to gather, to speech, political thought as a freedomof expression) would have no meaning, where it was exercised from a person's home,or to no audience, for instance", and refers to the work of Albert Camus.38 The38 Albert Camus was a French philosopher and author who lived between 1913–1960.submission appeared to be that in order for Ms Steedman to have the full and effectiveexercise of her rights, she would have had to have been allowed to breach the Orderfor the purpose of political protest.[56] Ms Green submits that the purposes of the Act and the Order were notfrustrated by Ms Steedman exercising her rights to travel to Auckland for the purposeof political protest, and that they would not be frustrated by reading those rights intothe Order. Ms Green points to the spread of COVID-19 and says that the lockdownswere ineffective in stopping that spread, submitting that rights limitations weretherefore unjustified. She says also that given the wide range of permitted purposesfor which to travel across Alert Level borders, the lockdown was not "entirely ablanket ban or lockdown of Auckland", meaning "that the purpose of the No 12 Orderbeing upheld (to prevent the spread) was quite possibly not being achieved". Ms Greensubmitted that the risk of spread through breach of the Order would have been low,but she also accepted she had no evidence of this.[57] It is helpful to set out the terms of ss 4, 5 and 6 of the NZBORA at this point.[58] Section 4 of the NZBORA provides that no court shall hold any provisions ofany enactments implied repealed or revoked; or decline to apply any provisions of anenactment, by reason only that the provision is inconsistent with the NZBORA.[59] Section 5 provides that, subject to s 4, the rights and freedom contained in theNZBORA may be subject only to such reasonable limits prescribed by law as can bedemonstrably justified in a free and democratic society.[60] Section 6 states that where an enactment can be given a meaning that isconsistent with the NZBORA, that meaning shall be preferred to any other meaning.[61] The interrelation between ss 4, 5, and 6 is typically addressed by reference toHansen v R. However, Ms Green doubts the utility of the Hansen analysis in thepresent case. Rather, she submits the approach taken in Fitzgerald is moreappropriate.39 She submits that the importance of the rights in question (combined as39 Fitzgerald, above n 25.a right to political protest) require the application of s 6 by the Court with the effect ofwhat she describes as "a generous reading up of rights".40 Ms Green says that theDistrict Court Judge failed to fulfil the judicial function required by s 6.[62] I do not accept that this is the position. The Fitzgerald approach arises inrespect of an absolute right – one that is unable to be justifiably limited, and in respectof which, s 5 of the NZBORA is not relevant. The approach in Hansen remainsappropriate in circumstances where non-absolute rights are in issue, such as thepresent case, in respect of s 16 of the NZBORA—where s 5 of the NZBORA remainsrelevant. That was the Court of Appeal's conclusion in Borrowdale.41 This is alsoconsistent with the view of the Tipping J in Hansen that his approach would not alwaysbe appropriate in the circumstances.42[63] The point is that because Fitzgerald concerned an absolute right, which cannotbe justifiably limited, an interpretation of that right giving the right-holder the full andeffective exercise of their right was required to be one that was largely inconsistentwith the statutory wording. Any other interpretation would have prolonged anddeepened the limitation on Mr Fitzgerald's absolute right. In the present case, the fulland effective exercise of a right means something different, because it is accepted thats 16 is a right that can be justifiably limited. It is not a matter of saying that becausethe Order is possibly inconsistent with s 16, that it is an unjustified limit and therefores 16 provides an absolute defence to the offending.[64] I accept the arguments made by Mr Liu for the Police that there is no 'higherpolitical protest right' as advocated by Ms Green—rather the position is that in respectof the Order, s 16 is the engaged right, and that to ascertain whether there is anunjustified limitation on that right, the approach in Hansen is the correct methodology.The primary issue is therefore not whether s 16 can be read into the Order, but ratherwhether the Order represents a justified limitation on s 16.[65] The test set out by Tipping J in Hansen is as follows:4340 Fitzgerald, above n 25, at [38]–[40] and [48] per Winkelmann CJ.41 Borrowdale v Director-General of Health [2021] NZCA 520, [2022] 2 NZLR 356 at [139]–[141].42 Hansen, above n 37, at [93]–[94].43 At [92].Step 1. Ascertain Parliament's intended meaning.Step 2. Ascertain whether that meaning is apparently inconsistent with arelevant right or freedom.Step 3. If apparent inconsistency is found at step 2, ascertain whether thatinconsistency is nevertheless a justified limit in terms of s 5.Step 4. If the inconsistency is a justified limit, the apparent inconsistency atstep 2 is legitimised and Parliament's intended meaning prevails.Step 5. If Parliament's intended meaning represents an unjustified limitunder s 5, the court must examine the words in question again unders 6, to see if it is reasonably possible for a meaning consistent or lessinconsistent with the relevant right or freedom to be found in them.If so, that meaning must be adopted.Step 6. If it is not reasonably possible to find a consistent or less inconsistentmeaning, s 4 mandates that Parliament's intended meaning beadopted.[66] The parties were agreed that Parliament's intended meaning was to preventtravel between Alert Level areas except for specific purposes, for the purpose oflimiting the spread of COVID-19. It is also apparent that this meaning is somewhatinconsistent with s 16, which is the right to freedom of peaceful assembly. An orderthat cuts across a person's right to travel to a public location and gather with otherpersons for any purpose is an order that is inconsistent with that right.[67] Section 5, as noted, requires that rights and freedoms contained in theNZBORA may only be subject to reasonable limits prescribed by law as can bedemonstrably justified in a free and democratic society. The Order itself is secondarylegislation, and therefore the apparent inconsistency was prescribed by law. Thequestion is then whether the apparent limitation or inconsistency was demonstrablyjustified in a free and democratic society. For the following reasons, I consider that itwas.[68] First, the purpose of the Order was for the protection of public health. Theobject was to prevent, and limit the risk of, the outbreak or spread of COVID-19,thereby protecting the health and wellbeing of all people in New Zealand andpreserving the capacity of the public health system. Secondly, Ms Steedman's abilityto gather with persons was not entirely limited—in her home area, which was at AlertLevel 2, she was permitted to gather and interact with a range of people. It was onlycrossing over into other areas that was prohibited, and only prohibited for purposesnot allowed in the Order. That appears to me to have been a proportionate response.The restrictions applied were for the purpose of ensuring that areas with higher risksof community transmission like Auckland, due to its population density, did not undulycontaminate other regions, thereby necessitating intensified restrictions in thoseregions.[69] Thirdly, whether the Order was achieving its purposes in this instance isirrelevant. It is not for the courts to effectively invalidate secondary legislation purelyon the basis of Ms Steedman's view that it was not effective. On the contrary, thequestion remains whether the limitations placed on Ms Steedman's right under s 16are justified.[70] Finally, I observe that the courts have been largely consistent in their findings(with the exception of vaccination mandates) that the limitations placed on rights ofpersons in New Zealand as a result of lockdown or other COVID-19 requirementshave been justified.44 The parties did not draw to my attention any judgments in thecriminal context in which arguments like those advanced by Ms Steedman have beensuccessful.[71] On the basis that the Order was a proportionate and balanced response to thenature of the pandemic at the time of Ms Steedman's offending, I consider that thelimitations on her s 16 right were justified, and that therefore, it is not possible ornecessary to read into the Order a proviso that criminal liability under s 26(1) of theAct is excluded if a person who has breached an order does so for the purpose ofpolitical protest.Taylor v Attorney-General[72] I do not consider the Judge erred in his reference to Taylor v Attorney-General.45 His Honour cited that case only in passing reference for the purpose ofestablishing that he did not consider that the rights that Ms Green said could be read44 See Borrowdale v Director-General of Health [2021] NZCA 520; and Orewa Community Churchv Minister for COVID-19 Response [2022] NZHC 2026.45 Above n 17.into the Order, could in fact be read into the Order. That was not an abdication of theDistrict Court's 'executive function' as contended by Ms Green, but rather, part of hisHonour's reasoning for the conclusion that it was unlikely that the Order would beconsidered an unjustified limitation of Ms Steedman's rights.[73] The Judge was of the view that the interpretation promoted by Ms Green wasnot available on the bare terms of the Order, and that therefore s 4 of the NZBORArequired him to apply the Order as written, in line with Parliament's intended meaning.This analysis reflects Steps 5 and 6 of the Hansen approach. Again, this was not theJudge refusing to enter a rights-analysis, but rather, taking the analysis to what heconsidered was its logical conclusion. That was not an error of law.[74] In any case, because I consider the limitation in this case is justified, it is notnecessary to go on to the latter steps in the Hansen approach.Conclusion –no error of law[75] In sum, I do not consider that the Judge made any error of law.[76] I conclude that:(a) section 16 is the relevant NZBORA right engaged in this case;(b) to the extent that there is an inconsistency, I am satisfied that the Orderrepresented a justified limitation on Ms Steedman's s 16 right; and(c) therefore, it is not possible or necessary to read into the Order a provisothat criminal liability under s 26(1) of the Act is excluded if a personwho has breached an order does so for the purpose of political protest.[77] Accordingly, I do not need to go on to consider whether there was a real riskthat the outcome of the trial was affected, or the trial was otherwise unfair.Refusal of discharge without conviction[78] As in the District Court, Ms Steedman provided no evidence upon which thisCourt could conclude that the consequences of a conviction are out of proportion withthe gravity of the offending. No application was made to adduce further evidence onappeal. This was noted by the Police.[79] Ms Green submitted that the Judge should have discharged Ms Steedmanwithout conviction as:(a) the purpose for which the travel to Auckland occurred was onlypolitical protest conducted in an "exemplary" fashion, involving noviolence, and she was open as to the purposes for the travel;(b) other persons who have breached COVID-19 orders have beendischarged without conviction where their breaches involved noexercise of protected rights;(c) the travel to Auckland was brief, and did not involve Ms Steedman andher co-offenders mingling with other persons;(d) the Judge did not take into account the impact of a conviction onMs Steedman;(e) the Judge did not consider that Ms Steedman was charged with acriminal offence "as opposed to the fine only offence"; and(f) a conviction and discharge was not the least restrictive outcomeappropriate in the circumstances.[80] As submitted by the Police, Ms Green's submission regarding the way in whichMs Steedman was charged misunderstands the statutory regime. Section 26(3) of theAct states that "a person commits an infringement offence if the person does anythingspecified as an infringement offence in this Act or a COVID-19 order". Where a breachis an infringement offence, it is expressly specified in the Act or Order. The Order doesnot specify that a breach of cl 17 is an infringement offence. It is therefore an offenceunder s 26(1).[81] In such circumstances, I am unable to conclude that the consequences ofconviction are out of all proportion to the gravity of offending, and that Ms Steedmanshould have been discharged without conviction. While I do consider the offending tobe of a more minor nature than was described by the Judge, on the information beforethis Court, I cannot see a basis for considering that his Honour erred.[82] No evidence was provided as to the effect of the conviction uponMs Steedman. Ms Green submitted that Ms Steedman lives in a small community andmay travel for representative sport. When questioned further about the effects of aconviction, Ms Green submitted that Ms Steedman's employment was not presentlyaffected but could be affected if she wanted to change jobs, and that at as an olderperson, "there is nothing to point to like a younger person", rather, Ms Steedman justwants to be able to rely on her good character.[83] Ms Green referred to this Court's decision in Nash as well as the District Courtdecision in Police v Rawnsley & Willis.46 Both those cases involved very differentcircumstances from those presented by Ms Steedman and I do not consider they assisther. Without more, I consider that the effect of conviction has been negligible.Accordingly, I conclude that the conviction was appropriately entered.Result[84] The appeal is dismissed.McQueen JSolicitors:McKenna & King Solicitors, Hamilton for AppellantCrown Solicitor, Whanganui for Respondent46 Nash v Police HC Wellington CRI-2009-485-007, 22 May 2009; Police v Rawnsley [2021] NZDC25342.