Grounded Kiwis in big court win over Govt

Grounded Kiwis have won their High Court challenge to the fairness of the managed isolation and quarantine system, dealing a bitter blow to the Government.

The group – which had members in New Zealand and overseas, and said it spoke for New Zealanders affected by MIQ – asked the High Court to review the system as it was in the period September 1 to December 17, 2021. Their claim was based on a breach of the Bill of Rights, which allows New Zealand citizens the right to re-enter the country.

In her 140-page written decision issued yesterday, Justice Jill Mallon said the nowdismantled MIQ system did not take enough account of personal circumstances for individuals to be given priority as needed. Entry to MIQ facilities established in response to the Covid-19 epidemic was a ‘‘lottery’’ , the judge found. Demand for places significantly outstripped supply in the ‘‘virtual lobby’’.

Grounds for emergency allocations were too strictly set, in some cases also narrowly interpreted, and too few places were set aside in MIQ for people who met the criteria, she said.

The exact orders the judge will make have yet to be decided. The parties have 14 days to agree on the words of a declaration, or the judge will decide it at a later date.

Grounded Kiwis sued the ministers of Health and Covid-19 Response, and the chief executive of the Ministry of Business, Innovation and Employment, alleging MIQ breached the right of citizens to re-enter, and the Government acted unlawfully and unreasonably in setting up MIQ and using it in response to the Covid-19 pandemic.

From April 10, 2020, until February 28, 2022, all arrivals, including New Zealand citizens, had to go into Government

managed isolation facilities and to submit to medical testing.

Covid-19 Response Minister Chris Hipkins said the judgment upheld several parts of the MIQ system, including from midOctober when those already in

New Zealand became infected and their close contacts were able to isolate at home.

MIQ was always ‘‘the least worst option’’ to help keep out Covid-19 and stop it spreading. The judge’s decision was being carefully considered, he said.

Grounded Kiwis did not, for the most part, challenge the decision to put in place an MIQ system, but it did challenge the way places were allocated on emergency grounds, for sports and other groups, and generally as an unjustified restriction if citizens had to wait longer than three months to return home.

The judge said there were no easy answers but middle ground was available so, for instance, a points system could have operated for New Zealanders who said their return was unreasonably delayed, or to change the number of rooms available for emergency allocation.

The virtual lobby system was more appropriate for people who wanted to return but could not show they’d been unreasonably delayed.

The changes that were made were ‘‘at the margins’’ and not enough to eliminate unjustified delays. The judge decided that the restrictions were not lawful as a justified limitation on the right to enter New Zealand in a free and democratic society.

However, she also said a voucher system was justified and the isolation periods were reasonable and proportionate.

The exact orders the judge will make have yet to be decided.