Covid-19 Public Health Response (Protection Framework) Order 2021 [the Health Order] – Judicial Review Procedure Act 2016 – New Zealand Bill of Rights Act 1990 – application for judicial review – “right to manifest religious beliefs” – applicable principles – lawfulness – objectiveness and proportionality – reasonableness – government health advice and policy – the Church and the State and the appropriate role of the court – social policy – extent of consultation – availability of exemption – New Zealand and overseas scientific papers, academic commentary (both legal and scientific) and precedent – the [health order] was not an unjustifiable limitation on the applicants’ rights [and so the applicants’ application is declined]

Orewa Community Church v Minister for Covid-19 Response [2022] NZHC 2026  (Gwyn J)

Two churches filed proceedings against the Minister for covid-19 response and the Director-General of Health. While each church’s legal arguments had points of difference, both (OCC) argued that the health order limited the numbers of people who could gather and therefore created a breach of the right to manifest religious beliefs.

Whether the health order was ultra vires – applicable principles – extensive discussion of the health order, the reasons for it, the covid pandemic, the vaccination program and the legislative framework that was introduced in response to covid – assessment of reasonableness and proportionality in relation to the “traffic light system” and the different gathering limits set – weighing of evidence, including scientific evidence, expert evidence and evidence from parishioners and pastors – “gathering” as a legal concept – scope of the New Zealand Bill of Rights 1990 – whether the minister has made an error of law or misdirected himself in the extent to which he considered/did not consider the Both churches argued that the health order limited the numbers of people who could gather and therefore created a breach of the right to manifest religious beliefs application of s 15 of the New Zealand Bill of Rights Act  – discussion of expert evidence in relation to church gatherings where singing, for example, may result in higher potential levels of covid transmission – whether OCC had applied for an exemption or whether one would be available – extensive review of legal and scientific commentary from both New Zealand and overseas and legal precedent, particularly in relation to religious freedom/practice and reasonable limits on this right.

Held: the [health order] was not an unjustifiable limitation on the applicants’ rights under s 15 of the New Zealand Bill of Rights Act [and so the applicants’ application for judicial review is declined] – the respondents do not seek costs, in recognition of the fundamental public interests and rights in this matter.

Sacha Jugum is a senior solicitor at Brookfields and editor of The Bulletin.