Case Brief: Bolton v The Chief Executive of the MBIE and Director-General of Health and Minister for Covid-19 Response [2021] NZHC 2897

December 3, 2021
Summary

MBIE refused Mr Bolton and his partner’s ("the applicants") application for exemption from MIQ isolation. The applicants successfully reviewed this decision and the court directed MBIE to reconsider.

Background

Mr Bolton is 73 years old, and is the only New Zealand board member of the multinational company Xplor Industries. Mr Bolton and his partner wished to isolate at his own home rather than an MIQ facility upon returning from a planned board meeting in Boston. They applied for an exemption to under the COVID-19 Public Health Response (Isolation and Quarantine) Order 2020 (“IQ Order”). MBIE declined the application.

The Case

Mr Bolton applied to the High Court for judicial review of the decision under four causes of action. The first was MBIE had made an error of law by misconstruing clause 12 of the IQ Order. The second was MBIE and the Director General failed to consider relevant grounds. The third was if clause 12 was to be interpreted as suggested by the respondents, it was inconsistent with the Bill of Rights Act(“NZBORA”). Finally, the applicants argued the decision was unreasonable.

The applicants sought a declaration that the decision was unlawful. They also sought an order permitting them to self-isolate at home, or in the alternative, a direction to reconsider the exemption request.

Error of Law

The applicants submitted the decision maker made an error of law by misconstruing its obligations under clause 12 of the MIQ Order, and interpreted "other needs" could only mean medical needs. Venning J noted a Medical Officer of Health may allow a person to isolate in any place other than an MIQ facility "for any reason" under the clause.

MBIE incorrectly claimed the exemption could only be approved for exceptional reasons. This wording is not used in clause 12, and was, in the Court’s view, likely the result of confusion with clause 14 of the Order. The Court ruled that MBIE’s misunderstanding of clause 12 amounted to an error of law.

Failure to consider relevant factors

As a result of this confusion, MBIE failed to consider relevant factors in its decision to decline the application. Because self-isolation in MIQ is a restriction on the right to freedom of movement under NZBORA, “other needs” could not be interpreted as just the health needs of the applicants. MBIE stated they had considered the risk of in-facility transmission of Covid-19 and Mr Bolton’s age. Despite this, the Court determined they had not considered the applicant’s proposed measures during self-isolation, nor the economic factors raised in the application.

The Court noted the Government had shifted away from its elimination strategy since the IQ Order was made in September 2020. The respondents accepted the Government’s interest in overseas business travel, and that many individuals in New Zealand were already isolating at home.

Because the Court was satisfied on the first two grounds of review, Venning J determined it was unnecessary to consider the remaining two causes of action.

Result

Venning J quashed the decision and directed MBIE to actively consider the following factors when reconsidering its decision, and balance these against the potential health risks:

- The need for Mr Bolton to attend the board meeting;

- The need of the applicants to enjoy rights conferred by NZBORA, including the right to freedom of movement and as citizens to enter New Zealand without unreasonable limitation; and

- The need for the applicants to avoid risk of contractingCovid-19 at an MIQ facility, and characteristics such as age which make them especially vulnerable.

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