Court confronts careless cruelty

These are decisive times. They have to be. But this makes it all the more important that we are on our guard against accepting automated reactions when we’re entitled to considered decisions. It is hard to imagine a more vivid and timely reminder than can be found in Justice Tracey Walker’s overturning of the Ministry of Health’s decision to deny Oliver Christiansen’s pleas to be at the bedside of his father, who was rapidly dying of cancer.

Three times his requests were rejected by officials who insisted that because the son, having flown into the country, was in managed isolation, he could leave it only if his own health needs required it. Which they didn’t.

Walker’s task wasn’t to assess why that decision was made – not her area of expertise – but how. And that really mattered because the officials had blindly adhered to one part of the law while seemingly ignoring others.

For reasons the wider public would have no problem understanding, the Health Act (Managed Air Arrivals) Order passed by the Government permitted exemptions on compassionate grounds, (provided there was low risk of transmission) and also under ‘‘exceptional circumstances’’.

The son’s lawyer put it as well as anyone: if this case didn’t meet those two categories, what would?

While Walker’s decision was deeply compassionate, it wasn’t indulgently so. We should acknowledge, as the judge did, that the ministry itself had ‘‘responsibly acknowledged’’ that, on the face of the documentary record, one of the grounds of the judicial review had been made out.

However, the lack of clarity displayed in the first place – no, the first three places – can only be cause for dismay. That it resulted not from malice but from ineptitude made it no less cruel for the family, and this is something the ministry would do well to acknowledge.

Such was the confusion that Prime Minister Jacinda Ardern was briefly but embarrassingly misled into repeating initial ministry advice that many requests similar to Christiansen’s had been approved. In fact none had.

Now 24 rejections must be revisited and reassessed, and by different personnel, in light of Walker’s ruling. Prioritising, of course, those cases in which there’s still time.

The fact that Oliver’s father, Tony Christiansen, was a retired associate High Court judge doesn’t for a moment mean the judicial review was handled improperly, but may have helped explain why his son was perhaps more alert to the potential for legal recourse, and less daunted by that prospect, than all those others.

In the end, father and son got precious, hard-won family time together before he died. And we must hope Tony Christiansen would have been well pleased not only by the mettle shown by his family, but to see the law upheld for much wider benefit.

Let’s be clear that wasn’t some new line of judicial thinking. Far from it. In her decision, Walker cites an earlier comment in a separate case from Justice (now Chief Justice) Dame Helen Winkelmann, that officials cannot close their mind to the possibility that special circumstances may exist outside those categories described and dealt with in even the most carefully formulated policy. Can we get an amen? We just have.

It’s said that desperate times call for desperate measures, and there’s some truth to that. But legal disciplines exist in part as a safeguard that longestablished rights are given their appropriate weighting at such times.

The Court of Appeal has identified unresolved issues about the lawfulness of the Government’s coronavirus decisions, and a Crown Law opinion has warned about how much power police have to enforce the lockdown. Such scrutiny matters, now and always.

Let’s be clear that wasn’t some new line of judicial thinking. Far from it.