The Grounded Kiwis advocacy group has won their case against MIQ according to a High Court ruling.
A High Court judge has ruled the way New Zealand's borders were managed during part of the Covid-19 pandemic did in some cases impede the right of returning Kiwis in a way that was not justified in a free and democratic society.
Advocacy group Grounded Kiwis had earlier sought a judicial review of our Managed Isolation and Quarantine (MIQ) system, alleging it had breached a section of the Bill of Rights Act (1990) that allows for every New Zealand citizen to return.
In a decision released on Wednesday afternoon, Justice Mallon acknowledged MIQ had played a vital role in achieving the Government’s public health objectives, but there was evidence that some of those who tried to return were faced with unreasonable delays.
She said over the period the judicial review focused on, from September 2021 to December 17 2021, the requirements to have a voucher did not amount to an unjustified infringement.
She added that the requirement to isolate in one of these facilities were “reasonable and proportionate limits”.
“Other options would not sufficiently have achieved the public health objectives the Government had legitimately determined to pursue.”
However, she says the virtual lobby, which was the main way for New Zealanders to secure a way home had the potential to impact Kiwis fundamental right of return to different degrees.
“The virtual lobby did not prioritise New Zealand citizens over non-citizens and nor did it prioritise on need or the delay experienced by a citizen.
“The offline emergency process was too tightly constrained to address this deficiency.”
Justice Mallon said the Crown had not shown that a “less rights impairing MIQ system was not reasonably available”.
“In particular the respondents have not shown why an online system could not have prioritised New Zealand citizens over others or prioritised based on the time period that a person had been seeking to return.”
In a statement, Covid-19 Response Minister Chris Hipkins told 1News the Government welcomed the court’s determination that returnees' requirement to undergo MIQ "was lawful and was not an unjustified infringement of New Zealanders’ right to come home".
Hipkins also noted that the Court found the requirement for people entering the country to isolate was "lawful", "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 the MIQ system "was always the least worst option to help keep Covid-19 from entering and spreading in New Zealand", adding that 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’."
Hipkins said the Government has "long acknowledged the difficult trade-offs we’ve had to make in our Covid-19 response", and was "particularly challenging" for people applying for people applying for MIQ places between September and December last year.
"We acknowledge that the Court has found that, for some citizens, the Virtual Lobby system as it operated between September 1 and December 17 2021, may have infringed their right to enter New Zealand. We are carefully considering the Court’s decision.”