A constitutional law expert says the MIQ lobby system's lack of consideration towards individual circumstances is “a failure by the Government" which will shape future systems should we need it.
It comes after the Grounded Kiwis advocacy group on Wednesday won their case in a High Court against the Managed Isolation and Quarantine system.
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.
Grounded Kiwis had earlier sought a judicial review of our 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 – between September 1 and 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 the facilities was “reasonable and proportionate limits”.
“Other options would not sufficiently have achieved the public health objectives the Government had legitimately determined to pursue.”
However, she said the virtual lobby, which was the main way for New Zealanders to secure a way to return 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.”
University of Otago professor Andrew Geddis told 1News while the lottery system's lack of consideration towards individual circumstances was “a failure by the Government, it’s not a complete failure”.
“The court accepts that the Government was doing its best, it just didn’t do enough," he said.
Geddis noted that the court has made clear that should the country "ever need something like MIQ again – which we may one day need – the Government’s going to have to set up a system of giving places that takes more account of individual circumstance of each person rather than just a general lottery system where everyone’s treated the same".
“The court has said that’s just not consistent with New Zealanders’ rights to return home. It’s just too blunt a way of dealing with individuals.”
Covid-19 Response Minister Chris Hipkins on Wednesday acknowledged the High Court ruling, making the admission that the lobby system "may have infringed" on some citizens' right to enter New Zealand.
"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," he said.
“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."
"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.”
Opposition weighs in
ACT Party leader David Seymour called the MIQ system “an exercise in cruelty that excluded up to a million people from our team of six million”.
He added that the “inflexible and illogical” system was “reflective of much of the Government’s decision-making throughout Covid” which “put politics ahead of public health and sanity and ruled through fear and control”.
“The Government owes all those who were stuck in limbo overseas an apology.”
National Party Covid-19 Response spokesperson Chris Bishop, meanwhile, branded the MIQ system as a “lottery of human misery”, and the court's ruling was “judicial confirmation of state-sponsored cruelty”.