A group that opposed the government's Managed Isolation and Quarantine (MIQ) 'lottery' system has won a major legal battle with the Minister of Health, with the High Court ruling it was inevitable the process would "operate unjustly in individual cases".
Photo: RNZ
Grounded Kiwis took its case to the High Court tochallenge the MIQ restrictions as an unjustified limit on the "foundational right" to enter New Zealand under the Bill of Rights Act.
It focused its case on the period between September to December 2021, when people testing positive for Covid-19 in New Zealand could stay at home, but those who tested negative at the border had to stay in MIQ.
Justice Mallon's decision - released this afternoon - the High Court found that the MIQ system did not sufficiently allow individual circumstances to be considered and prioritised where necessary.
"Because of this it was inevitable it would operate unjustly in individual cases when demand for places significantly exceeded supply.
"The MIQ system did not sufficiently allow for individual circumstances because most of the vouchers for MIQ were available through a "virtual lobby" that operated like a lottery.
"This was not a mechanism that could appropriately give effect to the right of citizens to enter."
Justice Mallon found the categories were too tightly set and narrowly interpreted.
"A more sophisticated system, that better prioritised those whose right to return were being unreasonably impacted, was reasonably available and would have met the government's public health strategy."
The decision clears the way for Grounded Kiwis to seek a judicial review of the MIQ system.
Waikato University law Professor Al Gillespie said the ruling recognised that MIQ was justified, but it was applied in too indiscriminate a manner.
Gillespie said the government will likely try to justify what it's done.
"It will be in the public domain for the government to come out and say we didn't get it wrong, this is what we did but they could not prove that in court and so this is a fairly heft shot across the bow of the government."
He said it was important for the court to look at some of the controversial decisions.
"It suggests why we need to have something like a Royal Commission so we can learn from the examples and the experience because as much as we got some things right we got some things wrong," Gillespie said.
"It's not about throwing stones against the government it's about being able to teach future generations how we will do better when the next pandemic hits."
He said the ruling could pave the way for an individual seeking some form of recompense.
"I wouldn't be surprised if we saw a test case with a particular person because this was argued at the generic level and this judgement does say that some Kiwis were unfairly responded to by what the government has done," Gillespie said.
"If they are one of those people who was not fairly treated and had their rights unfairly curtailed that ind might now step forward and say I want something in return."
Covid-19 Response Minister Chris Hipkins said he welcomed the court's determination that the requirement for returnees to undergo MIQ was lawful and was not an unjustified infringement of New Zealanders' right to come home. He added to the Health Ministry was carefully considering the decision.
"The Court also ruled that the requirement for people entering the country to isolate was lawful and was reasonable and proportionate even when, from mid-October 2021, those in the community who had the virus and their close contacts were able to self-isolate at home," he said.
"MIQ was always the least worst option to help keep COVID-19 from entering and spreading in New Zealand, and the Court concluded that other options would not sufficiently have achieved the public health objectives the Government had legitimately determined to pursue.
"The Court has noted the considerable work carried out and significant funds invested in the MIQ system and that 'the public health risks of making the wrong decision were very significant'.
"We have long acknowledged the difficult trade-offs we've had to make in our Covid-19 response to save lives and the effects of those decisions on all New Zealanders, particularly those living abroad.
"This was particularly challenging for those applying for MIQ places between September and December 2021 and we acknowledge that the Court has found that, for some citizens, the Virtual Lobby system as it operated between 1 September and 17 December 2021, may have infringed their right to enter New Zealand. We are carefully considering the Court's decision."
- more to come
