Free to Be Church Trust v Minister for COVID-19 Response - [2024] NZCA 81
Date of Judgment
27 March 2024
Decision
Free to Be Church Trust v Minister for COVID-19 Response (PDF 466 KB)
Summary
COVID-19 Public Health Response Act 2020 - COVID-19 Public Health Response (Protection Framework) Order 2021-Removal of COVID-19 Vaccination Certificates -Alleged non-compliance with the New Zealand Bill of Rights Act 1990-Appeal dismissed
The appellant (FTBC) represents a group of churches whose right to manifest their religious beliefs under s 15 of the New Zealand Bill of Rights Act 1990 (NZBORA) was limited by the vaccination requirements imposed on gatherings by the COVID-19 Public Health Response (Protection Framework) Order 2021 (Order).
FTBC accepts that at the time the Order was made in November 2021, the limits on the s 15 right were justified. But FTBC says the justification ceased to be sufficient in early 2022 once the Omicron variant of COVID-19 was prevalent in the community, and that NZBORA required the relevant restrictions under the Order to be removed by mid-Februa1y 2022 at the latest. FTBC says that the date on which the relevant restrictions were removed - 4 April 2022 - unjustifiably prolonged the interference with s 15 NZBORA.
FTBC filed judicial review proceedings in March 2022, seeking review of the Order. It pleaded that in making the Order, and in keeping it under review, the Minister for COVID-19 Response (Minister) failed to (meaningfully) take into account whether the Order limited their s 15 right, and if so, whether the Order was a justified limitation on that right. The appellant sought declarations to that effect, and an order quashing the limiting measures of the Order.
Justice Gwyn dismissed the appellant's judicial review application. The Judge held, among other things, that the relevant measures of the Order were a demonstrably justified limitation of the appellant's s 15 NZBORA both at the time the Order was made in November 2021 and after Omicron was in the community in early 2022: Orewa Community Church v Minister for COVID-19 Response [2022] NZHC 2026, [2022] 3 NZLR 475 (High Court judgment).
The appellant appeals against part of the High Court judgment: the Judge's conclusion that the limit on s 15 NZBORA was demonstrably justified when Omicron was in the community. The appellant says that from mid-February 2022, when Omicron had out-competed the Delta variant, the limiting measures under Order were no longer demonstrably justified.
Held:
The central issue raised by this appeal is what NZBORA requires of a decision maker in changing circumstances which call into question the continuing justification for a rights-limiting measure, where that measure was demonstrably justified for the purposes of s 5 NZBORA at the time it was made.
Delegated legislation that is inconsistent with NZBORA cannot lawfully be made in the absence of an express provision in the empowering legislation which authorises that inconsistency. The COVID-19 Public Health Response Act 2020, which was the empowering legislation of the Order, did not authorise the Minister to make an order inconsistent with NZBORA. In this case, the Order was made lawfully, so remains lawful and valid unless and until revoked.
Where delegated legislation contains rights-limiting measures in order to support a response to a public emergency such as a pandemic, it is inherent in the rationale for those measures that they will not be justified indefinitely. The measures will be lawful if the limits on rights that they impose are demonstrably justified in a free and democratic society at the time the delegated legislation is made. But the expectation is that the emergency will pass, and the initial rationale for justifying the rights-limiting measures will cease to apply. NZBORA therefore requires the maker of delegated legislation to keep it under review to asce1iain whether there continues to be a sufficient justification for the rights-limiting measures it contains.
If a rights-limiting measure ceases to be justified, and therefore NZBORA compliant, the decision maker has a duty under NZBORA to take steps to amend or revoke the delegated legislation to make it NZBORA compliant. Precisely what steps the decision maker takes to achieve compliance will however depend on the relevant circumstances, the objectives of the empowering legislation, and the options available. NZBORA does not require decision makers to act precipitously without considering policy options, consulting, making policy decisions, and ensuring that new legislation is appropriately drafted to give effect to the decisions made.
The ultimate question for the courts in this context is whether the relevant decision maker failed to act consistently with their duties because they failed to take action to amend or revoke delegated legislation by the date on which the delegated legislation should have been amended to address non-compliance with NZBORA. Where, as is the case in this appeal, it is common ground that the rights-limiting measure ceased to be justified, and the measure has been modified in a manner that addresses that concern, the question will be whether failure to move faster was itself a failure to act consistently with NZBORA.
This is an inquiry the court will be in a position to undertake only if that issue has been adequately pleaded, and the decision maker has had a fair opportunity to respond to the case against them. In this appeal, because of the way in which the appellant's case was pleaded and presented in the High Court, this Court is not well placed to consider whether the Minister ought to have acted more promptly and what steps he should have taken. No evidence was provided which directly addressed this issue by either FTBC or (unsurprisingly, since the issue was not squarely raised) the Minister. In those circumstances, this Court cannot fairly or responsibly make a finding that the Minister had failed to act in accordance with NZBORA because he had failed to amend or revoke the Order by an earlier date.
That said, on the basis of the documents which are before this Court, the process adopted by the Minister to remove the relevant right-limiting measures by 4 April 2022 in the context of a fast-developing and complex public health crisis appears to have been prompt and efficient. This Court is not prepared to find that the time taken to make the Minister's decision, or the short delay from the date of the Minister's decision on 23 March 2022 to remove the right-limiting measures to 4 April 2022 when that decision became effective, were inconsistent with NZBORA.
The appeal is dismissed.
The appellant (FTBC) represents a group of churches whose right to manifest their religious beliefs under s 15 of the New Zealand Bill of Rights Act 1990 (NZBORA) was limited by the vaccination requirements imposed on gatherings by the COVID-19 Public Health Response (Protection Framework) Order 2021 (Order).
FTBC accepts that at the time the Order was made in November 2021, the limits on the s 15 right were justified. But FTBC says the justification ceased to be sufficient in early 2022 once the Omicron variant of COVID-19 was prevalent in the community, and that NZBORA required the relevant restrictions under the Order to be removed by mid-Februa1y 2022 at the latest. FTBC says that the date on which the relevant restrictions were removed - 4 April 2022 - unjustifiably prolonged the interference with s 15 NZBORA.
FTBC filed judicial review proceedings in March 2022, seeking review of the Order. It pleaded that in making the Order, and in keeping it under review, the Minister for COVID-19 Response (Minister) failed to (meaningfully) take into account whether the Order limited their s 15 right, and if so, whether the Order was a justified limitation on that right. The appellant sought declarations to that effect, and an order quashing the limiting measures of the Order.
Justice Gwyn dismissed the appellant's judicial review application. The Judge held, among other things, that the relevant measures of the Order were a demonstrably justified limitation of the appellant's s 15 NZBORA both at the time the Order was made in November 2021 and after Omicron was in the community in early 2022: Orewa Community Church v Minister for COVID-19 Response [2022] NZHC 2026, [2022] 3 NZLR 475 (High Court judgment).
The appellant appeals against part of the High Court judgment: the Judge's conclusion that the limit on s 15 NZBORA was demonstrably justified when Omicron was in the community. The appellant says that from mid-February 2022, when Omicron had out-competed the Delta variant, the limiting measures under Order were no longer demonstrably justified.
Held:
The central issue raised by this appeal is what NZBORA requires of a decision maker in changing circumstances which call into question the continuing justification for a rights-limiting measure, where that measure was demonstrably justified for the purposes of s 5 NZBORA at the time it was made.
Delegated legislation that is inconsistent with NZBORA cannot lawfully be made in the absence of an express provision in the empowering legislation which authorises that inconsistency. The COVID-19 Public Health Response Act 2020, which was the empowering legislation of the Order, did not authorise the Minister to make an order inconsistent with NZBORA. In this case, the Order was made lawfully, so remains lawful and valid unless and until revoked.
Where delegated legislation contains rights-limiting measures in order to support a response to a public emergency such as a pandemic, it is inherent in the rationale for those measures that they will not be justified indefinitely. The measures will be lawful if the limits on rights that they impose are demonstrably justified in a free and democratic society at the time the delegated legislation is made. But the expectation is that the emergency will pass, and the initial rationale for justifying the rights-limiting measures will cease to apply. NZBORA therefore requires the maker of delegated legislation to keep it under review to asce1iain whether there continues to be a sufficient justification for the rights-limiting measures it contains.
If a rights-limiting measure ceases to be justified, and therefore NZBORA compliant, the decision maker has a duty under NZBORA to take steps to amend or revoke the delegated legislation to make it NZBORA compliant. Precisely what steps the decision maker takes to achieve compliance will however depend on the relevant circumstances, the objectives of the empowering legislation, and the options available. NZBORA does not require decision makers to act precipitously without considering policy options, consulting, making policy decisions, and ensuring that new legislation is appropriately drafted to give effect to the decisions made.
The ultimate question for the courts in this context is whether the relevant decision maker failed to act consistently with their duties because they failed to take action to amend or revoke delegated legislation by the date on which the delegated legislation should have been amended to address non-compliance with NZBORA. Where, as is the case in this appeal, it is common ground that the rights-limiting measure ceased to be justified, and the measure has been modified in a manner that addresses that concern, the question will be whether failure to move faster was itself a failure to act consistently with NZBORA.
This is an inquiry the court will be in a position to undertake only if that issue has been adequately pleaded, and the decision maker has had a fair opportunity to respond to the case against them. In this appeal, because of the way in which the appellant's case was pleaded and presented in the High Court, this Court is not well placed to consider whether the Minister ought to have acted more promptly and what steps he should have taken. No evidence was provided which directly addressed this issue by either FTBC or (unsurprisingly, since the issue was not squarely raised) the Minister. In those circumstances, this Court cannot fairly or responsibly make a finding that the Minister had failed to act in accordance with NZBORA because he had failed to amend or revoke the Order by an earlier date.
That said, on the basis of the documents which are before this Court, the process adopted by the Minister to remove the relevant right-limiting measures by 4 April 2022 in the context of a fast-developing and complex public health crisis appears to have been prompt and efficient. This Court is not prepared to find that the time taken to make the Minister's decision, or the short delay from the date of the Minister's decision on 23 March 2022 to remove the right-limiting measures to 4 April 2022 when that decision became effective, were inconsistent with NZBORA.
The appeal is dismissed.