Prescott v New Zealand Government

Prescott v New Zealand Government 2020 NZ.pdf
Geographical Area
New Zealand
Case Name
Prescott v New Zealand Government
Case Reference
[2020] NZHC 653
Name of Court
High Court of New Zealand
Key Facts
In response to the rising number of Covid-19 cases both within New Zealand and internationally, the Government declared a nationwide state of emergency and on 21 May 2020 introduced a four-stage alert system – level 4 being complete lockdown. On 25 March the whole of New Zealand was placed into alert level 4.

As per an order issued on 25 March under s.70(1)(m) of the Health Act 1956, under alert level 4, all premises were to be closed – except private dwellings and essential services – people were banned from congregating, and those permitted to leave their house were to maintain a physical distance of two metres from others. People were required to remain at their residences, except for travel to essential services. This order was in force till 3 April 2020.

At the time of the level 4 lockdown, Prescott resided in a motor home within a storage yard. The motor home was not mobile, nor was it registered or warranted. As a non-essential business/service the storage yard was to be closed during level 4, which would mean that the gates would be locked. Prescott did not have a key. He argued that, as he would be unable to leave his residence – even to access essential services – he would become a prisoner of the State. Prescott argued that such detention was unlawful, so sought a writ of habeas corpus under the Habeas Corpus Act 2001 and an order requiring he be given a gate key.
Decision and Reasoning
The judge provided four reasons the writ would not be granted:

First, for a writ of habeas corpus to be granted, the applicant must be currently detained. Although it was anticipated that Prescott would be detained, New Zealand was not yet in level 4 when he filed his application or when the judgment was delivered. Therefore, he was not detained at the time, so was not eligible for a writ. Second, the Court stated that the detention was at Prescott’s will – as he had the chance to leave before the yard was locked. Third, Prescott claimed to be unlawfully detained, however, the Court noted that he presented no arguments to show that the level 4 lockdown was unlawful. Fourth, the storage yard is owned/operated by a private entity not the Crown, so any detention caused by the locked gates would not be controlled or managed by the Crown. For these reasons, the Court declined to issue a writ of habeas corpus.

In terms of the order granting him a gate key, the Court noted that the Crown – who Prescott brought his application against – did not have the power to give him the key, instead this power lay with the owner of the yard.
The application was dismissed.

Since this decision, the High Court has held that the restrictions during the first 9 days of the level 4 lockdown (26 March 2020 to 3 April 2020) limited some rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 so were unlawful, but not unreasonable: Borrowdale v Director-General of Health [2020] NZHC 2090. Although this decision has the potential alter the Court’s finding in point 3, as Prescott could not meet the other requirements for a writ of habeas corpus (as evident in points 1, 2 and 4), it is unlikely to alter the final finding.
This case law summary was developed as part of the Disaster Law Database (DISLAW) project, and is not an official record of the case.