Habeas Corpus in the Time of COVID-19
A recent decision of the Court of Appeal has upheld an earlier decision declining to grant two applicants a writ of habeas corpus in response to their alleged “detention” under the Government’s Covid-19 response measures.
In response to the outbreak of Covid-19, on 25 March 2020 the Government:
(a) issued an Epidemic Notice under the Epidemic Preparedness Act 2006; and
(b) declared a state of national emergency under the Civil Defence Emergency Management Act 2002.
The steps by the Government provided the basis on which the Director General of Health, Dr Ashley Bloomfield, was able to make orders under s 70(1) of the Health Act 1956. These orders included the restrictions imposed under Alert Level 4 on 25 March 2020 and subsequently, Alert Level 3 from 27 April 2020.
In the High Court, the two applicants sought a writ of habeas corpus, challenging the legality of their “detention” under Alert Level 4. The applications were brought against the Prime Minister, Dr Bloomfield and the Director of Civil Defence and Emergency Management, Sarah Stuart-Black. The applications were both heard under urgency on 17 April 2020.
In her decisions ( NZHC 796;  NZHC 814), Justice Peters set out that for an application for a writ of habeas corpus to succeed, the applicants must establish that there is a “detention”. Once established, the onus then falls on the respondents to establish the legality of the detention. If an application for habeas corpus is successful, the effect is to release the applicant from detention. Accordingly, if the applicants in these cases were successful, the likely effect would have been to release all of New Zealand from Dr Bloomfield’s orders.
In the applicants’ cases, Justice Peters noted that “detention” in the Habeas Corpus Act 2001 is defined widely to include “every form of restraint of liberty on the person”. Whilst the applicants contended they were detained because they could not swim, hunt, tramp or travel as they saw fit, this was rejected – the applicants were still able to leave their home for essential personal movement, exercise as they wished, use the telephone, internet and communicate with whomever they wish. Nor were their movements monitored in any way. As habeas corpus was appropriate only where an applicant was held in “close custody”, the High Court found that the applicants were not detained.
Justice Peters also went on to state that even if the applicants were detained, any detention would be nonetheless lawful, as Dr Bloomfield’s orders had been properly made under the Health Act. Accordingly, the applicants’ application for habeas corpus failed.
Court of Appeal
The applicants appealed to the Court of Appeal. In a decision of the Court given by Justice Collins on 4 May 2020 ( NZCA 114), the Court of Appeal upheld the High Court’s decision. It too found that the applicants were not currently detained, noting that Alert Level 3 (in place when the Court of Appeal heard the matter) afforded the applicants even greater freedoms than Alert Level 4.
The Court of Appeal also found that even if the applicants had established their detention, it would reject the application on the basis that habeas corpus was not the appropriate procedure to address the applicants’ allegations. The Court noted the opinions of Public Law experts which state that there are “unresolved questions” about the legality of the orders issued by Dr Bloomfield. However, habeas corpus was not appropriate as:
- these unresolved questions would raise complex legal issues that are not appropriate for the truncated procedures under a habeas corpus application (which requires the application to be disposed of as a matter of urgency in priority to all other matters before the High Court);
- there is no right of appeal for the Crown under the Habeas Corpus Act, which would be inappropriate if the “unresolved questions” were answered against the Crown; and
- Judicial review would be the appropriate procedure in this case, given the applicants greater concerns were about the legality of the Government’s Covid-19 response. Applications for habeas corpus should not be entertained where they are really a substitute for judicial review.
In both the High Court and Court of Appeal, the applicants argued for name suppression, stating concerns about their physical safety if their names were published. Both Courts rejected the claim for name suppression as there was no evidence of any danger put forward. Further, such risks could not be a basis for name suppression, but rather, a matter that would warrant Police investigation. The applicants however indicated that they will appeal the Court of Appeal’s substantive decision as well as its decision as to name suppression, so have been granted interim name suppression until the Supreme Court determines the matter.
ANDERSON CREAGH LAI LIMITED
Article written by Edward Fox
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