Another habeas corpus writ over lockdown dismissed

Alongside the dismissal of a habeas corpus writ over claimed illegal detention under the Covid-19 lockdown – see Failures with habeas corpus writ against Ardern et al over lockdown ‘detention’ – an associate of failed Applicant ‘A’ has similarly failed for much the same reasons, except that ‘B’ was not currently serving a home detention sentence.

The respondents have established that any detention to which B is subject to under the order is lawful.

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

‘B’ he also applied for permanent name suppression on similar grounds.

B seeks an order for permanent suppression of the publication of his name and other identifying details. The gist of B’s submissions (oral and written) were that, although he brings this application for himself, the implications for the wider community mean it will attract publicity and attention. Some people in the community will favour the application and underlying thrust of the argument, being that the order was unlawful because it was unnecessary, and some will not. In all of this, B’s identity does not much matter, and he prefers not to be named.

B also advised me that he has been the subject of death and other threats since becoming associated with A and, although he has advised the police of these, he is concerned there may be a repeat.

I decline to grant B name suppression on the basis of the death threats of which he informed me. B was not on oath when he told me of these matters and nor is there 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 B, rather than for the Court to prohibit disclosure.

B’s other submissions, which were consistent with Mr Powell’s point that B’s application might be considered “public interest” litigation, are more persuasive. I accept B’s identity does not particularly matter to any media report of his application. What is important is that an application for habeas corpus has been made in respect of
an order affecting the entire population, and the grounds on which the application has been made.

However, neither Mr Powell nor B referred me to any authority or made any submissions addressing how suppression for these reasons could be reconciled with the authorities cited above. I may have been able to take this point further had they done so. Absent that, however, I decline to make the order for permanent name suppression sought.

Claims with no evidence and no supporting arguments.

B 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 B to pursue an appeal if he wishes.

That’s standard and the same as for ‘A’.

So why would two associates make two near identical applications to the court? Both seem to have been poorly argued.

And both applied for permanent name suppression without citing authorities or evidence.

While the legalities of lockdown requirements warrant being tested this dual attempt seems to have been a waste of court time, with more time to be spent on the two appeals on name suppression.

I think there is public interest in knowing who these lame litigants are.

Judgment: B v Ardern [2020] NZHC 814 (24 April 2020)

The associated judgment: A v Ardern [2020] NZHC 796 (23 April 2020)

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

Prime Minister is being sued over the lockdown, compared to Hitler

Two people with interim name suppression claiming death threats and safety risks (not sure how that works with a new case with unknown identities) are suing Jacinda Ardern for illegal detention via the COvid-19 lockdown, although one of them is already serving a home detention sentence.

NZ Herald:  ‘All for her political gain’ – Jacinda Ardern sued over lockdown

The Prime Minister is being sued over the lockdown, with two applicants making multiple claims at the High Court in Auckland today – including it being “all for her political gain”.

They also asked for a writ of habeas corpus, which seeks to rule an imprisonment unlawful and release the applicants.

The two men, who are known to each other, argued the alert level 4 lockdown has left them unlawfully detained and is not worth the economic cost compared with the low number of Covid-19 related deaths.

The first applicant, who is currently serving a home detention sentence, told Justice Mary Peters “the whole thing’s a joke” and it has become a “panic-demic, not a pandemic” – noting his sentence allows him to leave the house between 8am and 5pm each day.

He said Ardern had no grounds to enact the lockdown.

He also alleged she had conspired with Sir Stephen Tindall to ruin the economy and the United Nations Secretary-General should have been consulted instead.

The man ultimately compared Ardern to Hitler and the lockdown to the holocaust.

He alleged his views were shared by “a large portion” of the population and said the Crown must have been aware the lockdown would be legally challenged “or thought New Zealand were sheep”.

The man objected to Justice Peters’ question to substitute Ardern for Director-General of Health Dr Ashley Bloomfield, who enacted the lockdown order.

The other applicant alleged more people would now die from other illnesses, like cancer, because they will not be able to get diagnosed due to hospital resources being focused on the fight against Covid-19.

“The Prime Minister made the wrong decision … all for her political gain”, he said.

Justice Peters reserved her decision, but said it would be given urgency.

In my opinion the courts have much more important things to be doing than dealing with this.

As there is interim name suppression (at this stage I think automatic pending arguments rather than based on merit) do not try identify these people.