Gathering limits placed significant restrictions on everyone during the pandemic response. In the case of religious organisations, the spiritual effect could be “profound”. That was the unchallenged evidence of the Free to be Church Trust, which went to the Court of Appeal seeking a declaration that that the government’s order imposing some of those restrictions had become unlawful because it had come to unjustifiably limit their religious freedom under section 15 of the New Zealand Bill of Rights Act 1990.
The case raised a novel point: can an order which was lawful when made become unlawful later, when circumstances change? FTBC also challenged the High Court’s conclusion that limits on rights may be more easily justified when they are imposed on “a group whose views are not widely shared.”
The order provided for the use of vaccine certificates (CVCs) and regulated gatherings in different ways under different “traffic light” settings depending on whether participants had a CVC or not. For example, under the Red setting, 100 people could gather if they were all “CVC compliant”. If not, the gathering was limited to 25 people. The order, said FTBC, significantly limited their member churches’ ability to meet as a congregation and to practice their faith effectively.
FTBC accepted that the order was lawful when it was made in November 2021, but argued that it became unjustified once Omicron was the dominant strain of COVID in the community so that the gathering restrictions should have been removed by mid-February 2022. The order in fact continued in force until the government revoked it on 4 April 2022, which FTBC said “unjustifiably prolonged the interference” with their right to manifest their religious beliefs.
The Court of Appeal unanimously held that a lawfully made order “remains lawful and valid unless and until revoked.” Changing circumstances could not render an order unlawful by themselves; in the Court’s phrase, “delegated legislation does not vanish in a puff of smoke as soon as the [test for assessing justification] ceases to be satisfied.” Instead, said the Court, the New Zealand Bill of Rights Act “speaks” to decision-makers by requiring them to assess justification not only when an order is made but “on a continuing basis.”
That means decision-makers must keep orders under review, and must amend or revoke them if review shows that is required. “The greater the limit on rights ... and the faster circumstances are changing, the greater the need for vigilance” in that review. However, the obligation to keep orders under review “must operate in a realistic manner that takes into account the importance of considered, properly informed, democratically legitimate, delegated law making.” For example, decision-makers must have time to consider a range of policy choices, “alternative measures” and “additional safeguards”, and “a range of social and economic considerations.”
So while decision-makers “will have an obligation to act”, they are not required “to act precipitously on the basis of insufficient information, or without appropriate advice” or consultation with those affected. They must also have reasonable time to develop draft legislation and to consider it thoroughly, and to implement any “new arrangements”.
The effect, said the Court, is that decision-makers must “act consistently” with these obligations at the point the changed circumstances become apparent; they are not required to have actually implemented the change at that date.
In this particular case, the Court considered that the evidence showed the government’s decision-making had been sufficiently “prompt and efficient” and that they had complied with the obligation to keep the order under review. It declined to make a declaration that the government had failed to act consistently with the New Zealand Bill of Rights Act from mid-February 2022.
Helpfully, the Court clarified unequivocally that the standard for justification is the same no matter how small the group whose rights are affected. In other words, and contra the High Court, a decision-maker’s duty to achieve rights-compliance does “not depend on whether the limits on rights affect all or most people or a small minority. ... appropriate action [must be] taken where the justification ceases to exist in respect of any group, however small.”
The case had also raised a question about the standard test for assessing whether limits on rights are justified. Among other things, limits must have a “rational connection” to the purpose they are meant to achieve. The question was whether that merely requires a “causal connection” with the purpose, or whether it raises a more substantive question, namely, whether it must be shown that the limit in question is “fair and not arbitrary, carefully designed to achieve the objective in question”. The Court considered that this question did not need to be resolved in the case before it, leaving it for another day.
Free to be Church Trust v Ministerfor COVID-19 Response [2024] NZCA 81
