Failures with habeas corpus writ against Ardern et al over lockdown ‘detention’

Last Friday an application was heard in the High Court where two men were seeking a writ of habeas corpus against The Prime Minister Jacinda Ardern claiming they were being illegally detained through the Covid-19 lockdown. Yesterday Judge Peters J delivered her judgment that shows multiple failures in the action.

  • An application to transfer the case to be heard by a full Court of five Judges in the Court of Appeal was declined.
  • A and his family are not subject to detention within the meaning of the Habeas Corpus Act 2001.
  • If A and his family are detained, the detention is lawful.
  • Application for name suppression based on vague possibilities, declined but extended pending appeal

One of the men, who has interim name suppression and was described as A, appeared in person as the Applicant. He is currently serving a term of home detention unrelated to the pandemic.

Respondents were names as JACINDA ARDERN, ASHLEY BLOOMFIELD AND SARAH STUARTBLACK (represented by Mr Powell).

A, the applicant, submits the terms of order subject him and his family to “detention” within the meaning of the Habeas Corpus Act 2001 (“Act”). By application of 14 April 2020, A challenges the legality of the detention he alleges and
seeks a writ of habeas corpus, for himself, his partner and two other members of his family. The effect of the issue of the writ would be to release A and his family from the restrictions imposed by the order.

But presumably it wouldn’t release A from home detention.

Transfer to the Court of Appeal

A sought an order transferring his application to the Court of Appeal, ideally to be heard by a full Court of five Judges. A submitted the significance of his application made this an appropriate course.

I declined A’s application. Any decision to transfer a proceeding from the High Court to the Court of Appeal is one for the Court of Appeal, not the High Court.

So that application was pointless in the High Court. And the significance of the application is the poor arguments made.

A’s application raises two issues. The first is whether the terms of the order effect a detention within the meaning of the Act. If so, the second issue is whether the respondents can establish the legality of the detention. If not, I must order A’s and his family’s release.

Detention

The Act defines “detention” as:
detention includes every form of restraint of liberty of the person

A submitted the terms of the order subject him and his family to detention. This is because they may not leave their house for whatever purpose they wish, such as to swim, hunt or tramp, or to travel as they see fit etc, but only for essential personal movement.

In this case, the effect of the order is to limit the purposes for which A and his family may leave their home, and it also limits some forms of interaction with friends and other family.

But, as the respondents submit, A and his family remain free to engage in many of their usual activities. In my view, the freedom to exercise whenever they wish, to go to the supermarket whenever they wish, to talk to whomever they wish, and to access the internet whenever they wish is quite different from being “held in close custody”, which the Court of Appeal said in Drever is required for detention. A greater degree of control of the time and place of movement and/or association would be required.

… I do not consider A and his family are detained within the meaning of the Act by the terms of the order.

Lawfulness

If I am wrong in this, it becomes necessary to consider the lawfulness of the detention.

The order was made pursuant to s 70(1)(f) of the Health Act 1956 (“Health Act”)…

The medical officer of health may make an order under s 70:

(a) for the purpose of preventing the outbreak or spread of any infectious disease; and
(b) if, amongst other things, a state of emergency has been declared or an epidemic notice is in force.

Mr Powell submits, and I accept, these requirements were met in the present case…

Although A did not dispute the pre-requisites in s 70(1) for the making of the order were met — his argument as to the lawfulness of the order being quite different — A did raise a point as to whether s 70(1)(f) permits the Director-General to require everyone in New Zealand to be isolated by staying at home. On this point, A’s submission on the text of s 70(1)(f) was that “persons, places, buildings …” connotes smaller, confined groups of persons, not the entire population.

In response, Mr Powell submitted the word “persons” in s 70(1)(f) is sufficiently broad to cover “all persons within all districts of New Zealand”, being the ambit of the order.

I accept the orders that may be made under s 70(1) are very broad.

As I have said, however, A’s argument as to the proper construction of s 70(1)(f) was not his main submission on the issue of legality. Rather, A submitted the order was unlawful on numerous, quite different grounds.

A submitted the order constituted a gross breach of all New Zealanders’ human rights and “fundamental inalienable freedoms”, such as those conferred by the New Zealand Bill of Rights Act 1990 and the Act, that, as a matter of principle, it could never be lawful.

A also submitted the order was unlawful because it was “unreasonable”, in the sense there was insufficient evidence to warrant its making in the first instance. He also submitted the evidence that now exists — and which he believes was or might have been foretold — as to hospitalisation and death rates, the sector of the population most likely to be adversely affected (the elderly), and the effects of the “lockdown” on the New Zealand economy render the continuation of the order unlawful, even if its making was lawful, which he refutes.

A also submitted the order was not made for a proper purpose, namely to control the spread of the disease, but for many other extraneous reasons, including to enhance Ms Ardern’s prospects of re-election.

Kiwiblog comments type arguments don’t fit well with a court of law.

I accept the respondents have established any detention effected by the order is lawful, for the reasons in [31] and [35] above. I am also satisfied the arguments A relies on are not suitable for determination on an application for a writ of habeas corpus.

In fact, s 14(1A) of the Act permits the Court to refuse an application for the issue of the writ if satisfied the application is not the appropriate procedure for considering an applicant’s allegations. This is such a case. The appropriate procedure is an application for judicial review.

So a writ of habeas corpus was not an appropriate way to try to deal with this. I hope ‘A’ does not take the court’s suggestion of the appropriate procedure as a signal to try another approach in another action.

…the habeas corpus procedure is not suitable for the arguments A wishes to pursue. His arguments do not go to the lawfulness of any detention but the underlying decision to make the order, which is a different issue.

A and his family are not subject to detention within the meaning of the Habeas Corpus Act 2001. If I am wrong, and A and his family are detained, the detention is lawful.

Name suppression

A seeks an order for permanent suppression of the publication of his name and other identifying details. A perceives that, in the past, publication of his name in connection with other legal proceedings in which he has been involved has led to death threats against him, and threats to harm him and his family. These threats are distressing to A and his family, and exacerbate serious health conditions affecting all concerned.

Serious health conditions that may make ‘A’ a high risk with Covid-19.

As to why publication of his name in connection with this proceeding would be likely to lead to further threats, A said this has been the general consequence of publication of his name in the past and there is no reason to believe the result will be different on this occasion.

I may make an order prohibiting publication of A’s name and identifying details if necessary to serve the ends of justice.

However, the starting point is a presumption that all aspects of civil court proceedings are subject to disclosure and there must be sound reason to displace that presumption.

I am not persuaded a sound reason exists in this instance. The advice from A, to which I have referred above, was not on oath. I have no other evidence of the threats to which A refers or any evidence of a link between the mere fact of  publication of his name, in connection with any legal proceeding, and the making of any such threat.

Even if such were established, it is for the police to investigate any threat to A and his family, rather than for the Court to prohibit disclosure.

It would seem odd to grant name suppression for claims that something may (or may not) happen in the future.

I therefore decline to make the order for permanent name suppression sought.

A advised me he would wish to appeal any refusal of name suppression. At the end of the hearing, I made an order for interim suppression pending further order of the Court. I continue that order, again subject to further order of the Court, for 20 working days from the date of this judgment to enable A to pursue an appeal if he wishes.

The court has to allow the chance of appeal on suppression so this is standard procedure (appealing isn’t necessarily standard).

INTERIM ORDER PROHIBITING PUBLICATION OF THE NAME,
ADDRESS OR IDENTIFYING PARTICULARS OF THE APPLICANT.

That will be strictly applied here.

The arguments here seem to have been very weak and misconstrued. If it wasn’t for the suppression it could have looked like a lame publicity stunt by someone who has enough knowledge and ignorance of legal procedures to be a time wasting nuisance to the courts.

Full judgment here

Leave a comment

26 Comments

  1. Duker

     /  24th April 2020

    I think we should ignore this whole nonsense as it only feeds into warped minds. Yes I ve worked out who it is and absolutely wont even hint at how.

    Reply
  2. Alan Wilkinson

     /  24th April 2020

    The judge is obviously in some doubt about the ruling on the definition of detention and had the applicant not already been on home detention likely in greater doubt. I don’t see that part of the ruling standing.

    As to the second strand she falls back on, it seems the case was poorly made and diluted with extraneous nonsense. There is a case to be made by a much better litigant.

    Reply
    • “There is a case to be made by a much better litigant.”

      That would be interesting, and they should have learned something from this judgment.

      I’m not sure the judge is in doubt over the definition of detention. The judgment was based on the Applicant’s partner and two family members as well.

      I’ve often seen judgments that rule on one thing, but also deal with a further question in case the first one falls over on appeal.

      It’s common for seeking leave for appeal judgments to rule on whether leave should be given based on seeking leave rules, but at the same time also ruling on whether the appeal was strong enough to merit being heard, and even on the likelihood of success.

      In this case the judge would have known the likelihood of the Applicant appealing any decision so could have to an extent preempted that.

      Reply
      • Alan Wilkinson

         /  24th April 2020

        I can’t believe a confinement to your home, no contact with others and highly constrained allowances for exercise do not amount to detention. That ruling is plainly b.s.

        Reply
        • I’m sure the definition of detention can be argued, but the judge supported her ruling.

          In Schuchardt v Commissioner of Police, Keane J said that, although the definition appears wide, detention in the habeas corpus context is usually taken to connote “imprisonment or actual detention in some analogous form, say arising in an immigration or deportation context, or on account of a person’s mental health”.

          Most recently, in Drever v Auckland South Corrections Facility, the Court of Appeal was required to consider whether special conditions of parole imposed on
          Mr Drever constituted detention. The Court said relevant New Zealand authorities were to the effect that habeas corpus is not an appropriate remedy for a person not
          “held in close custody”. Although he had been released on parole, Mr Drever was required to be at home between 10 pm and 6 am, seven days a week, unless his probation officer agreed otherwise. The Court did not consider this curfew sufficient to constitute detention for the purposes of the Act, particularly as the probation officer
          might authorise an absence.

          The Applicant’s most restrictive detention is actually his home detention sentence.

          Mr Powell’s first submission on this point was that, to the extent A is presently detained, it is because he is serving a sentence of home detention, and not because of the terms of the order.

          He seems he could be trying to get around that through an alternative ruling.

          In my view, the freedom to exercise whenever they wish, to go to the supermarket whenever they wish, to talk to whomever they wish, and to access the internet whenever they wish is quite different from being “held in close custody”, which the Court of Appeal said in Drever is required for detention.

          That’s arguable, but it could be a hard argument and it would require someone far more capable than the Applicant.

          On a comparative basis, the extent of the restrictions imposed by the order is still some distance short of the effect on Mr Drever of his overnight curfew, day in, day out (subject to a probation officer’s permission to leave), which the Court of Appeal held did not constitute detention.

          That suggests a contrary argument may have to go as far as the Supreme Court to try to overturn a CoA ruling.

          Reply
          • Alan Wilkinson

             /  24th April 2020

            Yes, the Supreme Court is the appropriate place to settle this. It can’t be left where it currently is.

            Reply
            • And it’s not just the definition of detention, it’s also whether the current restrictions (if they are deemed to be detention) are legal or not. There’s not likely to be a close if any precedent for that.

              But it would need to go through a Court of Appeal first before it got to the Supreme Court.

              I’m not sure the Applicant would have been smart enough, trying to fast track his action straight to the Court of Appeal may have just been for his own convenience. As soon as you get into appeals costs are more likely if the fail.

            • Duker

               /  24th April 2020

              No The Appeal Court is where these sorts of ARE settled in NZ
              Im sure the Supreme Court , if asked, will just say the Law is settled, no new issues raised, no leave to appeal given. goodbye

            • Alan Wilkinson

               /  24th April 2020

              I’m sure that your being sure is of little consequence to anyone except yourself, Duker.

            • Duker

               /  24th April 2020

              Yet Im right again and again with you on this matter . And the SC doesnt take up matters where the law is settled and will deny leave to appeal.
              You have even misunderstood the Judges comments

              Im a simple person and simply look it up.
              And to think you were once in the politburo of a political party…

    • Blazer

       /  24th April 2020

      Have a shot…[deleted]

      Reply
      • Alan Wilkinson

         /  24th April 2020

        I would if I got harassed, B, bit I don’t go looking for trouble.

        Reply
  3. lurcher1948

     /  24th April 2020

    I wonder why the right are driven to push the envelope, break out of their bubble to embrace covid-19…all in the name of their rights…even if they die or infect others

    Reply
    • Alan Wilkinson

       /  24th April 2020

      Because they believe their right to care for their own life transcends the State’s, Lurch. It’s called freedom.

      Reply
      • lurcher1948

         /  24th April 2020

        yes, but your so called freedom, could be the death of others its called been responsible

        Reply
        • Alan Wilkinson

           /  24th April 2020

          No it won’t, Lurch, because I value my health more than yours so I will be keeping my distance from you which will incidentally also protect you from me.

          Reply
          • lurcher1948

             /  24th April 2020

            So as a righty Alan you value your health more than mine or PGs… “ARROGANT”, i know this is the rights attitude, personal freedom and money over the communities health, wow thats why Jacindas flying and Simons dying they see what selfish shit the right are…its my right to infect you as a righty..(.i can spit in your face im a rightwinger and its the price of our freedom)right Alan

            Reply
            • Alan Wilkinson

               /  24th April 2020

              No, I don’t spit in your face, Lurch. I just don’t let you control my life. Do you mind? (Not that I care.)

      • We had that once….it seems a long time ago…

        Reply
      • Fight4nz

         /  24th April 2020

        Another group of freedom fighters with strong beliefs are called ISIS. Maybe you should team up and free the world from the State?

        Reply
        • Alan Wilkinson

           /  25th April 2020

          Bonkers. There’s a clue in their name if you bother to look, F4NZ.

          Reply
    • Lurch, people are not wanting to embrace covid, but given that we know the location, numbers and source of the 400+ active cases, the chances of catching it are minuscule. And for anyone in reasonable health, the chances are that they won’t even need hospital treatment but will recover at home very quickly..

      Reply
      • Duker

         /  24th April 2020

        Given that waves of the virus will re occur over the next 18 months unless we continue the current range of restrictions and unlike 1919 when it was mostly younger adults who died, but this time those who die are the 60-80+ chohort, I cant see why you are favouring reduced restrictions. When it happens to you are your friends and no bodys sure how they caught it , there might be a light bulb come on.

        Reply
  1. Is New Zealand’s COVID-19 lockdown lawful? | Your NZ
  2. Another habeas corpus writ over lockdown dismissed | Your NZ

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