Key takeaways

• The High Court has ruled that the MIQ ‘lottery’ system was an unjustified limit on the fundamental right of New Zealand citizens to enter the country.
• The MIQ system reflected the cautious approach the Government took in its public health response to Covid-19, which it was entitled to adopt as an appropriate measure at the time.
• Given the purpose of the emergency allocation process was to allow New Zealanders facing unreasonable delays to return, the criteria for this was interpreted and applied too strictly to give sufficient effect to this purpose.
• In future, if a system like MIQ is ever needed again, the Government will need to pay close attention to whether the system is sufficiently “fit for purpose” in ensuring it gives effect to its purpose while warranting it takes into account individual circumstances.
• The Government will need to ensure any changes to a similar system in future are adequately monitored to ensure they remain justified.

Background

The High Court yesterday upheld aspects of Grounded Kiwi’s application for judicial review challenging aspects of the Government’s Managed Isolation and Quarantine (MIQ) system. The Court found the virtual lobby component of MIQ amounted to an unjustified limit on a New Zealand citizen’s right to enter the country under the New Zealand Bill of Rights Act 1990.

Grounded Kiwis did not challenge the Government’s decision to pursue an elimination strategy in regard to Covid-19, nor for the most part the Government’s decision that entry into New Zealand be subject to MIQ. Rather, the application challenged various limiting measures of the MIQ system, being the voucher requirement, the prescribed MIQ period and testing, the virtual lobby system, and the management of group and emergency allocations.

Court's assessment

In its assessment, the Court balanced the requirement for a robust public health response to Covid-19 against the right of individual citizens to enter their country (as enshrined in the New Zealand Bill of Rights Act). The Court acknowledged that there was no easy way to manage the friction between protecting the health of citizens present in New Zealand and ensuring overseas New Zealanders seeking to return home did not experience unreasonable delays. Justice Mallon commented that this would have been particularly difficult for New Zealand in comparison to other countries where the virus was not as carefully controlled.

Justice Mallon found that during the time New Zealand was pursuing an elimination strategy, the requirements to have a voucher and quarantine for a 14-day period, along with the testing regime administered during the quarantine period, were reasonable and proportionate limits on the right to enter the country. These measures reflected the cautious approach of the government towards achieving its public health objectives at that time.

However, while Justice Mallon acknowledged that the MIQ system was a crucial and effective element of the government’s overall Covid-19 elimination strategy, as a result of the way the MIQ system operated, many New Zealander’s experienced unreasonable delays in exercising their right to enter their country. Justice Mallon stated:

• The virtual lobby did not sufficiently allow for individual circumstances to be considered and prioritised where necessary, including unreasonable delay experienced by a citizen seeking return to New Zealand.
• The virtual lobby system failed to differentiate, and consequently prioritise, New Zealand citizens who have a right to enter the country under the Bill of Rights Act over applicants for entry who don’t have this right.
• An appropriate system to gather information from overseas New Zealanders about their circumstances was lacking. As a result, many New Zealander’s experienced unreasonable delays in exercising their right to enter their country.
• The offline emergency allocation process used to address urgent situations of citizens was too tightly constrained to adequately address the deficiencies arising from the virtual lobby.
• The Government had not demonstrated that there was not a reasonable alternative that was less rights impairing than the virtual lobby.
• Because of these deficiencies, it was inevitable the system would operate unfairly in some individual cases.

Court's conclusion

The Court therefore concluded that the manner in which the virtual lobby system and emergency allocation process operated meant the limits placed on New Zealanders’ right to enter the country by the MIQ system were not demonstrably justified in a free and democratic society. The Court will make a formal declaration to this effect once the wording of such a declaration is agreed by the parties.

Before the Court issued its judgment, the requirement for MIQ for returning New Zealanders was removed. However the Court noted that despite this, it remained important to determine the proceeding.

What does this mean looking ahead?

So what will this mean for future situations requiring a similar system?

It is clear from the judgment that the Government will need to give due consideration to a system that sufficiently takes into account individual circumstances and the disproportionate and unreasonable impacts such a system may have at an individual level.

In other words… general lottery systems are not recommended as a way forward.

 

Special thanks to Brooke Clifford for her assistance in writing this article.