New Zealand’s Managed Isolation and Quarantine (MIQ) system is being put to the test in a judicial review that opened in the High Court at Wellington on Monday.
The case has been brought by advocacy group, Grounded Kiwis. It contends the MIQ system has breached a section of the Bill of Rights Act (1990) that allows for every New Zealand citizen to return.
While MIQ has been credited for keeping Covid-19 out of New Zealand for the better part of the pandemic, it has faced growing criticism for locking Kiwis out and keeping families split.
In the High Court at Wellington, Paul Radich QC told the court these weren’t just people looking for a holiday.
“We are talking about those needing to come home, who needed to be here for deeply upsetting reasons,” he said.
“A citizen who couldn’t come home for her son’s funeral, a father who couldn’t support his son after surgery, parents separated from children, children not able to care for their parents who are sick in New Zealand, people isolated in countries without accommodation.”
He says the reasons for this have been understandable “to a degree”.
“There are public health considerations… we all know and understand that. But the case for the applicant here is that the pendulum is firmly in the wrong place, the pendulum is firmly on the public health considerations at the expense of a real understanding of the way in which the fundamental right to be here is to take effect.”
Radich also argued, that as the pandemic continued, the one-size-fits all approach to MIQ failed to take appropriate discretion. And as community cases grew with Delta’s arrival, the impact of MIQ was no longer in proportion to the risk.
“We have come a long way since [the start of the pandemic], we have the vaccine and we have a range of new measures,” he said.
This tug between the public health of considerations and the right of Kiwis to return home is something that law professor Andrew Geddis said would be quite a hard call for the court to make.
He said the right for Kiwis to return is important, but it is not an absolute right.
“It can be restricted if it’s demonstrably justified to do so. Now obviously Covid-19 and the threat it poses to the country is a very major thing,” Geddis said.
“So what the court is going to look at is if the particular way the Government has approached this is reasonable.”
The border is set to reopen from the end of this month, beginning with New Zealanders returning from Australia, indicating MIQ is coming to an end.
Geddis said even if the court does rule MIQ limits were not reasonable it’s unlikely to change anything now.
“We can’t change the past, but it will be very politically embarrassing for the Government to lose on those issues.”
The judicial review is set down for two days, with the Crown to present their case on Tuesday.
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