Spotlight on COVID-19 related judicial review cases

Friday, June 17, 2022

Prepared by Jonathan Scragg1, June 2022

Introduction

The COVID-19 pandemic has dominated the landscape in Aotearoa New Zealand, and globally, for more than two years. The pandemic has touched everyone, directly for those who have been infected by the disease, and indirectly, forcing changes upon everyone in the way they lead their daily lives.

Given the reach of COVID-19, it should be unsurprising that it is an issue that our Courts have had to grapple with. A broad range of legal issues associated with COVID-19 have come before the Courts over the last two years, including:

  • the introduction and use of vaccinations;
  • the use of other public health measures, such as “lock downs”; and
  • the use of border control measures, including the managed isolation and quarantine facility system (MIQ).

Case statistics

It is perhaps surprising that, given the breadth of the issues involved, only a relatively small number of cases have reached judgment. To date, there have been 73 cases published on the Courts of New Zealand website concerning issues related to COVID-19:

  • 33 cases have been heard by the lower or specialist Courts; and
  • 40 cases have been heard by the senior courts (34 cases in the High Court, four in the Court of Appeal, and two in the Supreme Court).

There have been 17 cases involving applications for judicial review. These are the cases that form the basis of this paper. Before turning to discuss those cases, first some introductory comments about the basis of judicial review and the process by which such cases are brought before the Courts in this country.

What is judicial review?

Judicial review involves the High Court making an assessment as to whether a decision has been lawfully made. The Court acts as a check and control over bodies that exercise public powers or functions. The purpose of judicial review is to ensure those bodies do not exercise powers unlawfully.

An applicant for review is usually concerned to stop their rights being adversely affected by what they say is the unlawful exercise of power. Commonly it is not just the lawfulness of the relevant decision that is in issue. Often it is the action, or actions, that will follow from the making of the decision that will have the greatest impact on the applicant, and thereby that prompts the applicant to bring the challenge.

For that reason, the relief to be granted – whether on an interim or final basis – is usually of central importance in judicial review cases.

The judicial review process                

There are two main procedural routes for bringing judicial review proceedings. A claim can be made under either the Judicial Review Procedure Act 2016; or under the common law in accordance with the process set out in Part 30 of the High Court Rules.

The Judicial Review Procedure Act provides a statutory basis for the review of the exercise of statutory powers. Historically, this was viewed as being limited to powers that were expressly included in an Act. However, the Judicial Review Procedure Act adopts broad language, and in more recent times, Courts have tended to take a non-technical approach to the powers that are subject to review under the Act.

The common law provides an alternative procedure for the review of non-statutory powers that are, in essence, of a public nature or have important public consequences. These are generally known as “Part 30” proceedings and remain important because of the wider range of decisions that are reviewable when compared to the Judicial Review Procedure Act. There is also potentially a wider range of remedies available under this route.

When it comes to interim relief in judicial review, there is little substantive difference between the two routes. The Court is exercising its judicial review jurisdiction, and the substance of its review is the same under each route. As such, any apparent procedural differences are disappearing. The Court has held that the practices to be followed under the Act will apply equally to Part 30 proceedings, subject to any express rules to the contrary.

COVID-19 and judicial review: catching on

In the High Court, 17 of the 34 cases concerning COVID-19 that have resulted in the issue of a judgment have been applications for judicial review.

The non-judicial review cases have been wide-ranging in subject matter and have included applications for leave,2 criminal prosecutions and sentencing,3 civil claims4 and five cases where litigants have sought to invoke the Court’s habeus corpus jurisdiction.

Judicial review has been used to challenge a range of different public health measures imposed by the Government. This has included challenges to the mandatory isolation period for people in MIQ, nationwide lockdowns, and vaccination mandates. Perhaps surprisingly, there have been no decided judicial review cases concerning mask mandates.

Vaccination: a thorny mandate?

There have been several judicial review cases brought to challenge the vaccination mandates.5

One prominent case is Yardley, Wallace and a Defence Force Worker v Minister for Workplace Relations and Safety, Commissioner of Police, Chief of Defence Force, and the Attorney General [2022] NZHC 291.

The applicants were three Police and Defence Force workers who were ultimately successful in their challenge to the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021. The three workers did not wish to be vaccinated and faced termination of their employment if they were not vaccinated by 1 March 2022.

The applicants first sought interim relief which was declined by the High Court. Justice Cull held that, while the workers had been stood down, their employment had not been terminated. The substantive application was then heard with urgency.

An interesting, though ultimately unsuccessful, argument made by the applicants was that the Order failed to meet the Crown’s obligations under the Treaty of Waitangi, as Māori would be disproportionately affected by higher rates of dismissal from employment.6  The Court (Cooke J) rejected the argument because:7

  • the Minister had taken into account that COVID-19 was likely to disproportionately affect Māori and had addressed the possibility of disproportionate affect from the Order, which meant it had been considered as a relevant consideration; and
  • the evidence put forth by the applicants did not support the argument that there would be a disproportionate effect on Māori resulting from terminations arising under the Order.

Ultimately the Court concluded the purpose of the Order had failed to justify its wide reach.

Justice Cooke referred to the “precautionary principle” that he had discussed in an earlier case: Four Aviation Security Service Employees v Minister of COVID-19 Response8 and which has been recognised in other COVID-19 cases, particularly in Canada.

The precautionary principle is that “even a modest vaccination protection on a modest number of personnel needs to be considered in the context of the potential effects of a pandemic.”9 This principle had been the basis of Cooke J’s approach in Four Aviation Security Service Employees (where the applicants had been unsuccessful in their challenge to a vaccination mandate).

In Yardley, however, the Order was not premised on the public health need to curtail viral spread. Instead, it had been “imposed for the purpose of ensuring continuity of, and confidence in, essential services.”10 The justification for the precautionary approach is the health risk to the wider public, which was not relevant in the circumstances of Yardley. Justice Cooke found that the Order did not advance the purposes for which it had been promulgated and imposed an unjustified limit on the applicants’ rights.

MIQ: challenges to mandatory quarantine periods

Given the timescales typically involved in civil litigation, and notwithstanding the fact that applications for review are intended to be heard and determined promptly, the road to a substantive hearing can be long. For that reason, a number of the cases challenging mandatory quarantine periods involved applications for interim relief. In some cases, determination of the interim relief application has had the effect of determining the substantive application for review.

One such case was Christiansen v The Director-General of Health [2020] NZHC 887. Christiansen concerned the Ministry of Health’s decision to decline the applicant’s bid to reduce the length of his MIQ stay so he could visit his dying father. In the High Court, Walker J was prepared to make an interim order to restore the applicant to the position he would have been in, had it not been for the Ministry’s decisions. In allowing the applicant to leave MIQ early, Her Honour commented:11

I have also considered the question of the appropriate deference to the expertise of the decision makers in a time of unprecedented public crisis. No matter how necessary or demonstrably justified the COVID-19 response, decisions must have a clear and certain basis. They must be proportionate to the justified objective of protecting New Zealand bearing in mind the fundamental civil rights at issue – freedom of movement and of assembly in accordance with the New Zealand Bill of Rights Act 1990.

Bolton v The Chief Executive of the Ministry of Business, Innovation and Employment [2021] NZHC 2897 also concerned a challenge to the MIQ system. Mr Bolton and his partner were scheduled to attend a board meeting in Boston, USA in November 2021. They were to fly on a private jet and had applied for an exemption under the COVID-19 Public Health Response (Isolation and Quarantine) Order 2020 to allow them to self-isolate at their home on their return, rather than at a government MIQ facility. The applicants successfully argued that the decision maker had failed to take into account relevant considerations and there had been an error of law when considering, and declining, their exemption application.12

Justice Venning focused his analysis on the purpose of the Act and the Order noting that:13

… The purpose of the Act is to support a public health response to COVID-19 that, inter alia, prevents and limits the risk of spread of the virus, is proportionate, and allows social, economic and other factors to be taken into account. The purpose of the IQ Order itself is to prevent and limit the risk of the spread of the virus…

He went on to cite Borrowdale v Director-General of Health [2020] NZHC 2090 in considering whether the limitation of the applicants’ rights, resulting from the application of the Order, was necessary. Justice Venning noted that the objective of the Order could be met if the decision maker was satisfied that the needs of the applicant could be met by self-isolation at home in a way which would prevent or limit the risk of the spread of COVID-19. Where the decision maker could not be satisfied of this, the application could be properly declined.14

Here, the applicants successfully argued that the decision maker had erred in law and had failed to take into account relevant considerations. Thus, the decision maker did not “properly decline” the application. When discussing the considerations that were pertinent, Justice Venning commented:15

The Prime Minister’s more recent statements on the issue confirm that New Zealand is now in the process of phasing out the elimination strategy it initially followed in response to COVID-19. COVID-19 is in the community. The situation in New Zealand is now quite different to what it was when the IQ Order was made.

The decision in Bolton highlights the difficulty that many public health decision makers have faced (and continue to face) in responding to the COVID-19 pandemic. In the context of an ever-changing landscape, decisions have been more susceptible to challenge.

Perhaps the most prominent judicial review case to involve a challenge to the MIQ system is Grounded Kiwis Group Incorporated v Minister of Health [2022] NZHC 832. That case involved a challenge brought by a group of New Zealanders who were seeking to return to New Zealand.

The application for review focused on aspects of border restrictions which were in place from 1 September to 17 December 2021, being:

  • the requirement to have a voucher for MIQ before entry to New Zealand, and to stay in MIQ (initially for 14 days, which was later reduced to 7 days);
  • the criteria for approval of an MIQ stay and how this operated in practice;
  • the way the voucher system and virtual lobby operated in practice; and
  • how emergency applications were determined.

The applicants succeeded only in relation to their challenge to the virtual lobby system. The system meant that people’s individual circumstances could not be adequately considered because the system in effect operated as a lottery. While the emergency application category had been introduced to help with this issue, the Court found that the emergency categories were too narrow.

Justice Mallon commented on the unique situation the Courts had found themselves in when reviewing decisions made in an ever-changing climate:16

I am mindful that I am considering all of this with the benefit of hindsight and therefore must “tread carefully”. I am also mindful that considerable work was carried out and significant funds were invested in running the MIQ system. I am also mindful that the Minister was aware of the acute MIQF supply problem and the BORA right to return and sought a good deal of advice about this that was provided on an urgent basis. I am also mindful that the public health risks of making the wrong decisions were very significant and that the Minister at all times considered the limit on citizens’ right to return was justified…

It is in relation to the MIQ system that applicants for judicial review have, broadly speaking, had the most success in challenging decisions. In saying that, the Courts have throughout had regard to the difficult circumstances in which decisions have had to be made. As in Grounded Kiwis, noted above, the Courts have acknowledged the broader environment within which decision makers have been making decisions. Justice Mallon acknowledged that “there were no easy answers in the tension between protecting the health of New Zealanders” residing in the country versus those wishing to return to their home.17

Symptomatic: challenges to decisions made as a flow-on effect of COVID-19

The Courts have seen a number of judicial review applications brought to challenge decisions that were made as a result of COVID-19, rather than decisions made to combat COVID-19.

In Afghan Nationals v Minister for Immigration [2021] NZHC 2261 an application for review including an application for interim relief was filed by a group of Afghani nationals with New Zealand connections who were wishing to flee Kabul. The applicants sought interim orders that visas be issued to them. The situation was described as a “Catch-22” as the visa applications were not processed because the applicants could not enter New Zealand, but they were not eligible for evacuation because they did not hold visas.

Justice Cooke declined the application for interim relief on the basis that the Court was satisfied by the actions taken by the relevant decision makers. The Court was not prepared “to make orders, even interim orders, directing that the visas be issued (temporary or otherwise).”18 

The applicants were successful, however, when their substantive application for review was heard.19 The Court found that the decision to close the border due to COVID-19 did not provide a reason to refuse visas, which meant that decisions made by Immigration New Zealand to decline long-standing visa applications were ultra vires.20 The Court noted the difficult position Immigration New Zealand was in:21

The crisis caused by the COVID-19 pandemic has coincided with a humanitarian crisis in Afghanistan. COVID-19 has given rise to a need to prevent people entering New Zealand, yet the humanitarian crisis has given rise to the opposite need. Those circumstances may explain the errors made by INZ, as at a general level the position was difficult.

Challenges to the nationwide lockdown(s) & the use of habeas corpus

There have been surprisingly few cases brought challenging the nationwide lockdown(s). The leading case is Borrowdale v Director-General of Health [2020] NZHC 2090. Mr Borrowdale challenged the legality of the lockdown order that had been in force between 26 March 2020 and 3 April 2020, and about which certain statements had been made by Government representatives essentially requiring people to stay at home and in their “bubble”.

A full bench of the High Court found that certain statements made by the Prime Minister at various media addresses, published on the Ministry of Health website, and made by the Police Commissioner, together with a number of other statements, went beyond the scope of the Order.22 That meant a number of the restrictive measures the Government had put in place were therefore limitations on NZBORA rights that were not prescribed by law.

The Crown unsuccessfully tried to argue that the Government’s statements were guidance as opposed to commands which required compliance by law. The Court acknowledged that while the statements had softer messaging, they were “replete with commands” and referenced possible enforcement actions for those not in compliance.23 The Court commented that:24

… the importance of encouraging voluntary compliance but also the threatened use of coercive powers – that lies at the heart of the first cause of action.

As an alternative to seeking relief by way of judicial review, a number of litigants sought relief via writs of habeas corpus.25 Habeas corpus is commonly used by applicants to challenge unlawful imprisonment. Applications are made to the High Court and heard urgently, usually within three working days of being filed.

In A v Ardern [2020] NZHC 796 and B v Ardern [2020] NZHC 814, Mr Nottingham and Mr McKinney respectively challenged the March 2020 lockdown and argued that the effect of the public health measures introduced via the Alert Level System had the effect of detaining them unlawfully. They each sought writs of habeas corpus under the Habeas Corpus Act 2001. The applicants were self-represented. In both cases Peters J found that neither applicant had been detained for the purposes of the Act as they were free to engage in their usual activities.26

The Court of Appeal dismissed Mr Nottingham and Mr McKinney’s appeals, noting that there was a spectrum of restrictions that people could be subject to and that it was “important not to conflate restrictions on a person’s movement with restrictions upon their liberty.”27 The Court also commented that habeas corpus was not the appropriate procedure for considering their allegations and that:28

… An expedited application for judicial review seeking declarations in the High Court is the only appropriate procedure in the circumstances of this case.

Remedies in COVID-19 cases

Ordinarily a successful applicant for review will seek relief either to quash the decision in question; to require a decision-maker to reconsider an issue; to stop an agency from acting on a decision made; or to declare that a decision is invalid.

In the context of COVID-19, declaratory relief has commonly been the relief sought. Declaratory relief has been granted in some cases, see for instance the Afghan Nationals case and Borrowdale, both discussed above.

The Courts have, however, been more hesitant to grant relief in some other COVID-19 related cases.

In Nga Kaitiaki Tuku Iho Medical Action Society Inc v Minister of Health [2021] NZHC 1107, the High Court refused to grant interim relief despite finding the applicant had a strong case. The applicant had sought to prevent the Pfizer vaccine rollout and challenged the legality of the provisional consent granted for the vaccine under s 23 of the Medicines Act 1981. Despite finding it was reasonably arguable that the provisional consent for the vaccine was ultra vires under s 23 of the Medicines Act, and suggesting the Crown needed to reconsider the position, the Court refused to grant interim relief. The Court held that both public and private repercussions lent themselves to declining interim relief for a number of reasons:29

  • The process undertaken was not an orthodox provisional consent process but in fact went above and beyond;
  • The decision made by the Minister was in line with similar decisions made internationally; and
  • The Director General of Health had identified several other matters which counted against interim relief, including the overall risk to public health that would occur if the immunisation programme was halted, as well as the resulting reduction in public confidence in the vaccine.

The day after the Court’s decision in Nga Kaitiaki Tuku Iho Medical Action Society Inc was released, the Government introduced, and Parliament passed, legislation to amend s 23 of the Medicines Act 1981 with retrospective effect to ensure that the vaccine rollout could continue.30

In Bolton the applicants sought a declaration that the decision to deny them an exemption to isolate at home was unlawful, or in the alternative, a direction that their MIQ exemption request be reconsidered.31 The Court directed that the decision be reconsidered.

Not in isolation: the continuation of judicial deference to decision makers

The courts have largely approached COVID-19 related judicial review cases in an orthodox manner in the sense that they have typically shown deference to decision makers and the difficult circumstances in which they have had to make decisions relating to COVID-19.

In NZDSOS Inc & NZTSOS v Minister for COVID-19 Response & Attorney General [2022] NZHC 716 the High Court considered a challenge to the exemption criteria for vaccination mandates in an Order under the COVID-19 Public Health Response Act 2020. The Court deemed that the criteria were not unreasonable nor were they being unreasonably applied, and commented that Courts were not well placed on judicial review to “make decisions about individual cases.”32

In GF v Minister of COVID-19 Response [2021] NZHC 2526 the High Court highlighted the distinction between judicial review and merits review when addressing another claim that an Order under the COVID-19 Public Health Response Act 2020 was irrational. Churchman J stated that:33

… it is not for the Court to decide matters such as whether a risk exists and what the best way of addressing that risk is. The test is whether it was reasonable for the Minister on the basis of the information before him, to have reached the conclusions he did.

Justice Isac took the same approach in Idea Services Ltd v Attorney-General [2022] NZHC 308, stating that he did not consider it was open to the Court, or appropriate, “to undertake a merits review in the absence of demonstrable irrationality.”34

Margin of appreciation

The courts have allowed a “margin of appreciation” for the bases on which public decisions are made during the circumstances of the COVID-19 pandemic, demonstrating that in judicial review it is not typically the Court’s role to step into the decision maker’s shoes. Where public decision makers have been alive to all relevant and mandatory considerations, the Court will not make value-judgments as to how those considerations should have been weighted.

This approach was evident in Yardley, where the High Court held that it was sufficient that the Order in question was directed at achieving the purpose of the relevant Act. Once this had been determined, arguments as to whether the Order did indeed achieve that purpose were not reviewable. The balancing of purposes required in the Act was for the relevant decision-maker, not the court.

The same approach was echoed in GF by Churchman J, who stated:35

where economic and social factors have clearly been considered, it is not for the Court in judicial review proceedings to second-guess the policy decisions made by the Government in this regard.

In cases where declaratory relief has been granted, the courts have recognised the difficult and urgent circumstances under which public decisions have had to be made. In Borrowdale, relief was granted in the form of a declaration that, for nine days, public announcements that New Zealanders were required to isolate at home breached NZBORA, because they were not prescribed by law. This declaration was cushioned, however, by statements emphasising that there was no question that those measures comprised “a necessary, reasonable and proportionate response to the public health emergency posed by COVID-19…”36

A similar approach was taken in Grounded Kiwis where declaratory relief was awarded. The Court provided ample recognition of the difficult circumstances faced by the Crown in unprecedented times, and the significant work that was carried out to operate the MIQ system.

Stronger statements

COVID-19 judicial review cases have also provided the Court with an opportunity to make some stronger statements regarding the Court’s constitutional role to keep “a weather eye on the rule of law,” especially in emergency circumstances.37

In Christiansen, Walker J said:38

It is important to understand that this is not an appeal. The Court is not entitled to ask itself whether the substance of the decisions were right or wrong. There are limits to scrutiny of the merits. Traditionally, the primary role of the Courts in judicial review is to supervise the decision maker’s reasoning process - how, rather than what, decisions are made. The extent of those limits, particularly in the extraordinary circumstances such as the ones prevailing in New Zealand at present, is open to debate.

In Four Aviation Security Service Employees v Minister of COVID-19 Response & Ors [2021] NZHC 3012 the Court commented that “a very substantial measure is being implemented through a generally expressed empowering provision,” and warned the legislature that its conclusion should not be interpreted as clearing a path for more extensive use of this power in other circumstances.39

The importance of the factual matrix

Finally, it is instructive to consider two cases that each involved challenges to COVID-19 vaccination rollouts in which the Court (Ellis J in both cases) reached different conclusions when considering whether applicants had positions to preserve when seeking interim relief: Nga Kaitiaki Tuku Iho Medical Action and MKD & Ors v Minister of Health [2022] NZHC 67.

Nga Kaitiaki Tuku Iho Medical Action Society concerned the provisional consent and initial rollout of the Pfizer vaccine to people over 16-years of age, whilst MKD & Ors concerned the consent and rollout of the paediatric vaccine. The applicants were deemed to have had a position to preserve in the former case, but not the latter.

Justice Ellis acknowledged the difference in her approaches to the two cases. Her Honour suggested that to some extent, her decision in Nga Kaitiaki Tuku Iho Medical Action Society was shaped by an ability to influence Parliament to correct a statutory error. As noted above, Parliament did indeed respond with an amendment to the Medicines Act 1981.

In Nga Kaitiaki Tuku Iho Medical Action Society, the applicants sought interim orders in the form of declarations that:40

…the approval of the Pfizer vaccine, pursuant to s 23(1) of the Medicines Act, without identifying the ‘limited number of patients’ that the provisional consent applied to, was an error of law, and that until further order of the Court, the Crown ought not take any further action that would be consequential on the exercise of the statutory power;

…the vaccine rollout plan of the Pfizer vaccine, which had only provisional consent, to everyone in New Zealand aged 16 years and older may be unlawful, and that until further order of the Court, the Crown ought not take any further action that is or would be consequential on the exercise of the statutory power.

Section 15(1) of the Judicial Review Procedure Act 2016 provides that the Court may make specified interim orders if, in its opinion, it is necessary to do so to preserve the position of the applicant. When discussing this test, Ellis J referred to the liberal approach that Courts have taken in the past as to the preservation threshold.41 Her Honour held that it was arguable that the applicant had a position to preserve. This was because, by the time the substantive claim could be heard, the vaccine would have been largely rolled out, and the relief sought on an interim basis would have been unavailable.42

In MKD & Ors, the applicants sought interim relief in the form of a declaration that the consent granted under the Medicines Act for the paediatric Pfizer vaccine was invalid and unlawful and that, until further order of the Court, the respondents ought not to take any further action in relation to healthy children aged 5-11.43 Justice Ellis determined that interim relief was not available, because the applicants had no protectable position to preserve.44

Again, acknowledging the different approaches adopted in the two cases, Ellis J stated that:45

… [Nga Kaitiaki Tuku Iho Medical Action Society involved] a statutory concern that needed to—and could—be addressed as a matter of urgency by Parliament. In those circumstances, the proposition that the Court was precluded from addressing that issue by a jurisdictional bar (the applicants’ absence of a position to preserve) was an unattractive one. Despite the requirement for a position to preserve being expressed in threshold terms, the merits of the underlying, substantive, application for review may in some cases have a bearing on whether it is met.

These cases demonstrate the fact specific nature of judicial review cases, and applications for interim relief in particular. Different factual situations can, and often will, result in different outcomes. Justice Cooke made the same observation in Yardley, Wallace and a Defence Force Worker, when explaining why the decision differed from that in Four Aviation Security Service Employees.

A final, and related, point can be made about the need for care when preparing evidence for use in a judicial review claim. Judicial review applications are typically decided on affidavit evidence (and submissions) without cross-examination. The jurisdiction is not designed to determine contested issues of fact. It is, however, important to lay a thorough factual foundation as part of a judicial review case.

A recent cautionary tale on this point can be seen in Yardley, Wallace and a Defence Force Worker. There the Court observed the evidence filed in the proceeding was deficient in responding adequately to the causes of action:46

One of the difficulties with the present case is that there is little before the Court that allows an analysis along these lines to be undertaken. There was nothing in the parties’ written submissions of this kind…The parties’ submissions also tended to address these question of justified limitation at a more abstract level, rather than by reference to the actual evidence of the effect of the measure… the inquiry is necessarily a practical one.

 

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

1 With thanks to Ashlesha Sawant and Kellee Candy of Duncan Cotterill.
2 8 cases.
3 6 cases.
4 4 cases.
5 Four Midwives, NZDSOS and NZTSOS v Minister for COVID-19 Response [2021] NZHC 3064; MKD & Ors v Minister of Health [2022] NZHC 67 1; NZDSOS Inc and NZTSOS v Minister for COVID-19 Response [2021] NZHC 3071; NZDSOS Inc & NZTSOS v Minister for COVID-19 Response & Attorney General [2022] NZHC 716; Four Aviation Security Service Employees v Minister of COVID-19 Response & Ors [2021] NZHC 3012; Yardley, Wallace and a Defence Force Worker v Minister for Workplace Relations and Safety, Commissioner of Police, Chief Of Defence Force, and the Attorney General [2022] NZHC 291; GF v Minister of COVID-19 Response [2021] NZHC 2526.
6 Yardley, Wallace and a Defence Force Worker v Minister for Workplace Relations and Safety, Commissioner of Police, Chief of Defence Force, and the Attorney General at [35].
7 At [38] – [39].
8 At [94] – [95].
9 Four Aviation Security Service Employees v Minister of COVID-19 Response at [94] of Yardley.
10 At [95].
11 Christiansen v The Director-General of Health at [67].
12 Bolton v The Chief Executive of the Ministry of Business, Innovation and Employment at [62] – [72].
13 At [47].
14 At [59].
15 At [68].
16 Grounded Kiwis Group Incorporated v Minister of Health at [429].
17 At [424].
18 Afghan Nationals v Minister for Immigration at [14].
19 Afghan Nationals v The Minister for Immigration [2021] NZHC 3154 22.
20 At [72] – [82].
21 At [137].
22 Borrowdale v Director-General of Health at [185] and [240]. See also the subsequent decision of the Court of Appeal [2021] NZCA 520.
23 At [184].
24 At [183].
25 A v Ardern [2020] NZHC 796; B v Ardern [2020] NZHC 814; Prescott v New Zealand Government [2020] NZHC 653 
26 A v Ardern at [25]–[27]; B v Ardern at [26]–[28]
27 Nottingham v Ardern [2020] NZCA 144 at [20].
28 At [27] – [29].
29 Nga Kaitiaki Tuku Iho Medical Action Society Inc v Minister of Health at [69] – [71].
30 Medicines Amendment Act 2021.
31 As above n12 at [12].
32 NZDSOS Inc & NZTSOS v Minister for COVID-19 Response & Attorney General at [151].
33 GF v Minister of COVID-19 Response at [99].
34 Idea Services Ltd v Attorney-General at [108].
35 As above n33 at [58].
36 As above n22 at [97].
37 At [291].
38 As above n11 at [43].
39 Four Aviation Security Service Employees v Minister of COVID-19 Response & Ors at [77].
40 As above n29 at [48].
41 As above n29 at [54].
42 At [55].
43 MKD & Ors v Minister of Health at [5].
44 At [54].
45 At [56].
46 As above n6 at [69].

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