The PM’s press briefing on Wednesday 17 June channeled the nation’s collective rage at discovering what seems now to be only the tip of the iceberg of an “avalance of incompetence in the quarantine system” (to mix metaphors). At it, she referred to “pressure”, including from the courts, to take a more compassionate approach to post-arrival isolation/quarantine. That’s not a helpful depiction of the court case in question, Christiansen, and here I aim to set the record straight.
In short, the government made some rules about self-isolation that allowed for exemptions on compassionate grounds, but applied them in a way that did not allow for exemptions on compassionate grounds. Rather than give the government another go at following their own rules, the court made the decision for them because they were running out of time. What the government did after that is on them.
This is not the scapegoat you are looking for
I’m writing this piece as a response to several incomplete or inaccurate characterisation of the Christiansen decision. There’s the Prime Minister’s description of “pressure” from the courts to about taking a more compassionate approach. RNZ reported Director-General of Health Ashley Bloomfield’s response to losing the High Court case as follows:
But the High Court ruling didn't mean the team had failed to apply the criteria, [Bloomfield] said.
"What the staff do is they apply the criteria and look at all the information they have objectively and fairly ... and with great empathy. They don't just say this is a no, they have to - and they do - look through the information very carefully.
"What the judge was saying is that they didn't feel from the information that was presented that it was obvious that that process had been followed."
And, more recently, in a piece on The Standard, Mickeysavage stated:
There was one particular case in early May where a son applied urgently for an order allowing him to see his dying father... The refusal appeared to be really cruel but when you are dealing with a world wide pandemic policy responses are always cruel…
The decision was in legal terms conventional. It did however have a chilling effect on MoH’s response. There is nothing that medical people hate more than having to go into court to justify their decisions which on the face of it appear to be cruel given the extenuating circumstances of a family member dying.
So the system was loosened up.
I’ll come back to why I think these descriptions are missing something, after I explain the case in a bit more detail. I’m not going to get into whether there should be compassionate exemptions at all, or whether the government should have suspended compassionate exemptions, or whether it’s legal or just pretty legal for the PM/Health Minister to just announce a suspension. On the last point, at least person who knows more about the legal side of this than me thinks the answer might be no. There’s another court case coming up on COVID-19 law, I’m not going to get into that here.
Here’s a really brief summary of the events that led up to the Christiansen decision:
· COVID-19 happened. You already know this bit;
· On 24 March, the PM issued an epidemic notice under section 5 of the Epidemic Preparedness Act 2006
· The issuing of an epidemic notice empowered a Medical Officer of Health to use special powers under section 70 of the Health Act for the purposes of preventing the outbreak or spread of infectious disease
· On 9 April, the Director-General of Health Dr Ashley Bloomfield, acting as a Medical Officer of Health, used those powers to issue a Health Act Order which, among other things, required people arriving in New Zealand to go into 15 days of self-isolation or quarantine.
· The Order provided for some exceptions, including “to undertake travel that is permitted under a framework approved by the Director-General” either to go home or “on other compassionate grounds”. There was also a separate exception for “Exceptional circumstances”.
· The Ministry of Health published a framework on covid19.govt.nz which provided for exemptions from the 14-day self-isolation period on four grounds:
· “a minor who is travelling alone — this exemption allows a parent or caregiver to join the minor in managed isolation, not for the minor to leave self-isolation. “
· “individuals arriving as medical transfers — if being transferred to hospital, a letter from the DHB verifying they will enable self- isolation in hospital or discharged within 14 days, they will be required to complete the time in a managed isolation facility. “
· “individuals with physical or other needs that cannot be appropriately accommodated at the managed facilities — applications in this category need to be supported with clinical evidence from a registered medical practitioner. Needs considered are the needs of the individual arriving in New Zealand, not of others already in New Zealand.”
· “workers critical to the COVID-19 response required to undertake tasks during the 14 days isolation — applications in this category need to be supported by a letter from the relevant government department, essential service employers or lifeline utility.”
Three requests and three denials
This is where Oliver Christiansen enters the picture. His father had been diagnosed with brain cancer in January 2020. At the time, Mr Christiansen was living in London. In mid-April, he was told that his father had only a few weeks to live. He decided to come to New Zealand, sit out the quarantine period, and spend his father’s last days with him. However, after Mr Christiansen arrived in New Zealand, his father’s condition deteriorated rapidly.
Mr Christiansen then applied to the Ministry of Health for an exemption so that he could travel from the hotel where he was staying to travel to his father’s family home. He proposed travelling by a private car which he would ensure was cleaned, staying at his father’s home until 24 hours after his father died, when he would return to managed isolation wearing full PPE. In court, Mr Christiansen gave evidence that he had asked to be tested for COVID-19 but was refused because he had no symptoms.
Mr Christiansen applied to the Ministry for an exemption three different times, and was denied three times. In short, the High Court found that the Ministry denied his requests because the decision-makers were applying the Ministry’s framework, which did not allow for exemptions on compassionate grounds or for exceptional circumstances. This is despite Mr Christiansen specifically referring to “compassionate dispensation” in his first request.
It’s as if I hired a caterer for an event, told them to make sure that there was food for “vegetarian, gluten-free, and vegan” guests, and announced that publicly. But, the caterer then implemented a menu with vegetarian and gluten-free options, but nothing suitable for vegans. And, they told someone who specifically requested a vegan meal that exceptions were available only for vegetarians and gluten-free guests.
The court case
As he was getting nowhere with the Ministry, Mr Christansen took them to court. The Ministry effectively accepted that they had failed to properly consider Mr Christiansen’s request as one for an exemption on the basis of exceptional circumstances, and asked the Court for three hours so that the Ministry could make a new decision in accordance with the Order.
The Court said no, bearing in mind that, by this point the medical evidence suggested that Mr Christiansen’s father had no more than a few days to live, and the Ministry had already had three chances to do things properly. It’s rather unusual for a Court to step in and do something like this, but the Justice Walker considered that the circumstances she found herself in were exceptional. So, the Court made the decision for them, and required the Ministry to allow Mr Christiansen to leave managed isolation under strict controls. The Court also basically said that, if you’re going to have compassionate exemptions at all, it is difficult to imagine a case more worthy than this one.
So what’s wrong with those descriptions?
The Prime Minister’s description of the courts as applying “pressure” is unhelpful. The PM is right, in a sense, that the courts applied pressure on the Ministry to actually apply the Order, rather than their more-restrictive framework. But describing that as “pressure” lumped in with pressure from other sources fundamentally mischaracterises the constitutional role of the courts. The courts are not a lobby group trying to push the government’s policy direction one way or the other. The courts are not there to say “your law is a bit mean, perhaps you should pass a nicer one” (at least, not generally).
The court’s constitutional role is to determine what the law is. If the government doesn’t like what the court say the law is, the appropriate response is to change the law, not complain about “pressure”. As public law academic Eddie Clark, who has been saying a lot of sensible things about this, put it:
All the courts said was "apply the law". If the govt doesn't like the terms of the order which set out the rules, it's pretty easy for them to change it.
Bloomfield’s response is also problematic. He claimed that Ministry staff “apply the criteria”, but the High Court found that the Ministry was applying the wrong criteria. Bloomfield also said that the Judge “didn't feel from the information that was presented that it was obvious that that process had been followed”. First of all, courts are not in the business of feeling feelings – they exercise judgment and make findings and rulings! Here’s what Justice Walker actually said:
[T]here is a very strong argument that the permission for Mr Christiansen to visit his dying father was not considered on the correct legal grounds and did not take account of relevant mandatory considerations. It had the hallmarks of automatic rejection based on circumscribed criteria rather than a proper exercise of discretion required by the Health Act (Managed Air Arrivals) Order. Indeed, the respondent responsibly acknowledges that on the face of the documentary record, one of the grounds of review can be made out.
That’s not just “I can’t be sure that the process was followed properly”. That’s “I’m pretty sure that the process was not followed.
Turning now to Mickeysavage’s piece, which states that recent revelations about the poor handling of compassionate exemptions:
[B]rings into stark relief a debate that happened just over a month ago. At the time there were repeated claims that the Government was being too cruel some alleged. They should be more compassionate. The Government was being too hard. It was pushed for all it was worth, despite the visiting of hospitals and the gathering of people in close proximity to each other being clear risks for the spread of the disease.
It’s certainly true that some people were claiming that the Government was being too cruel. National-aligned blogger/pollster David Farrar said that the Christiansen decision showed that the “Ministry not only showed repeated ignorance of the law they were meant to be interpreting, but also lacked common sense and compassion in my opinion.” Mike Hosking said that the decision showed the government’s “lack of humanity”. Heather du Plesiss-Allan characterised the Ministry’s approach to compassionate exemptions as “heartless”, noting that (pre-Christiansen), the Ministry had received 24 requests for exemptions on compassionate grounds and had denied them all.
Under other circumstances, I might think that the description of strict controls around COVID-19 as “heartless” is hyperbole, but I think there’s actually some merit to it here. The Order requiring people arrival in New Zealand to normally go into isolation had heart build into it – it allowed for exemptions on compassionate grounds and exceptional circumstances. The framework that the Ministry was actually applying (at least, in Mr Christiansen’s case) did not – it was heartless.
So, some of these early calls for compassion must be seen in the context of a Ministry that appeared to be showing zero compassion, despite the rules that they were supposed to be applying allowing for it. I read du Plesiss-Allan as saying “we’re showing no compassion at all, and we should show some” rather than “let’s throw caution to the wind”, but this is something reasonable minds may differ on.
As we progressed through the stages of lockdown, there was also pressure put on the government to loosen up restrictions on funeral and tangihanga attendance. That in turn is part of a bigger picture of pressure to loosen all sorts of restrictions. But we shouldn’t lose track of the specific issue of exemptions from isolation after returning to NZ, in part because of the all-to-real risk of COVID-19 cases coming in from overseas. In contrast to du Plessis-Allan, Andrew Dickens’s “Lockdown has worked - now it's time to let us go” unhelpfully conflates the internal lockdown restrictions that allowed us to reach a state of elimination within New Zealand with controls over those entering the country.
Back to Mickeysavage on The Standard, who doesn’t expressly mention that (i) the Court found that the Ministry wasn’t applying its own rules or (ii) the reasons that the Court is (unusually) making the decision for the Ministry (I guess that’s supposed to be covered by “[t]he decision was in legal terms conventional”?), and goes on to say this:
[The High Court’s decision] did however have a chilling effect on MoH’s response. There is nothing that medical people hate more than having to go into court to justify their decisions which on the face of it appear to be cruel given the extenuating circumstances of a family member dying.
So the system was loosened up.
If “had a chilling effect on MoH’s response” meant “made the Ministry follow the Order” then yeah, that’s what’s supposed to have happened. Just as WINZ has started paying people who were wrongly denied benefits after it became apparent that the government had not been applying the law properly.
And, there’s no indication in the case that the multiple rejections of Mr Christiansen’s requests were due to a medical weighing up of the risk involved in his specific proposed arrangements – it appears to have been dismissed because it did not fall into one of the categories in the framework before getting to that point.
So, the system was “loosened up” - but, it now seems, things may have gotten far too loose. I reject any narrative which attributes any of the blame for that on the court case. The message from the High Court is not “prioritise compassion over risk” – it’s that compassion can’t be absent in the assessment, at least according to the rules. If the Ministry’s new response didn’t properly take into account risk (which is also expressly included in the Order as something that should be considered), then that’s on them.
Perhaps there’s an alternate universe where the original Order did not expressly provide for exemptions for compassionate grounds or exceptional circumstances. Maybe, in a version of that universe, someone took the Ministry of Health to Court, and a judge somehow found a legal basis for deciding that the Order actually did allow for exemptions on compassionate grounds, or maybe ordered the Director-General of Public Health to go back and make a new Order that did. Or perhaps issued a declaration that, by not providing for exemptions on compassionate grounds, the Order was inconsistent with the New Zealand Bill of Rights Act, which would put the PM’s comments about pressure from the courts in a different light. In that universe, perhaps people are expressing concerns about the court overstepping its constitutional role.
But, the thing is, we don’t live in that universe. We live in the universe where the government made some rules that allowed for compassionate exemptions from isolation, and someone took them to court because they didn’t follow those rules (it’s also the one where Donald Trump is President of the USA and there’s a global pandemic, we’re stuck with those things too!)