Case Brief: Grounded Kiwis Group Incorporated v Minister of Health - [2022] NZHC 832

June 16, 2022

Summary

Grounded Kiwis successfully challenged the MIQ system as it was deemed an unjustified limitation on the right of New Zealanders to enter the country under the New Zealand Bill of Rights Act (NZBORA).

 

Background

In response to COVID-19, the New Zealand Government established the MIQ system to prevent the spread of the virus. From 10 April2020 to 28 February 2022, all arrivals, including New Zealand citizens, were required to enter MIQ facilities and be tested for the virus.

Under the MIQ system, the primary pathway for New Zealanders to enter the country was through a virtual lobby. This was assisted by an offline emergency system for those with special considerations. Both avenues caused difficulty for New Zealanders attempting to return, who faced delays as MIQ’s limited capacity led to significant backlogs.

Grounded Kiwis is an interest group which advocated for New Zealand citizens and residents who were impacted by these restrictions. Grounded Kiwis sought judicial review of the MIQ restrictions and system, alleging they were unlawful and an unjustified limitation on the right to enter New Zealand. Grounded Kiwis claim was based specifically on the restrictions in place between 1 September 2021 and 17 December 2021.

In February 2022 the Government brought an end to MIQ requirements for vaccinated New Zealanders returning to the country, and thiswas later extended to those who were not vaccinated.

 

The case

Despite the Government’s removal of MIQ requirements, Mallon J deemed the matter remained one of public importance. The Court affirmed every New Zealander has a right to enter New Zealand. This right could only be limited through legislation in a manner which was demonstrably justified.

14-day period was justified

Grounded Kiwis argued the requirement to have a voucher to enter MIQ and to isolate in MIQ for 14 days was an unjustified limitation. His Honour disagreed, and held the requirement was a reasonable and proportionate limit on the right to enter during the period it was in place.

Online voucher system functioned as a lottery

MIQ’s virtual lobby was managed through an online voucher system which did not prioritise citizens over other applicants or consider individual circumstances. Grounded Kiwis provided several examples of how the system had prevented citizens from returning home, leading to significant stress and grief. The Court acknowledged the voucher system operated like a lottery, and was not an appropriate mechanism to give effect to the right of citizens to enter the country. It also failed to consider recipients on the basis of need, or how long a person had been seeking to return.

MBIE applied an unlawful approach to emergency categories

In addition to the voucher system, MBIE provided an emergency category for New Zealanders who had a significant need to return. Grounded Kiwis submitted MBIE’s high threshold for a person to have “no other option” meant it failed to consider a person’s financial position and their physical or mental health. The Court accepted the threshold was too narrow, and noted only a limited number of places were available for people who met the criteria. The Court also held MBIE had misinterpreted the requirement that emergency applications be made within 14 days of “intended departure” as instead “intended arrival.”

Mallon J stated while MIQ was a critical component of the Government’s elimination strategy, it infringed the rights of New Zealanders toreturn in a manner which could not be demonstrably justified. The Government failed to show a less rights-impairing MIQ system was not reasonably available which would have sufficiently achieved the Government’s public health strategy. A system which better prioritised citizens could have been achieved by reallocating more rooms for New Zealanders in a manner which appropriately considered individual circumstances.

Grounded Kiwis also argued some group allocations (such as for sports teams) did not serve a purpose sufficiently important to curtail a citizen’s right to enter. The Court held while there were instances of process errors, group allocations were prescribed by law and neither arbitrary nor discriminatory.

 

Result

The Court held the MIQ system, as it operated between September and December 2021, was an unjustified limitation on the right to enter New Zealand under NZBORA.

Following agreement by the parties on the wording, Mallon J made two declarations on 15 June 2022. The first declaration stated:

·        the virtual lobby did not prioritise New Zealand citizens’ right to enter;

·        the offline system failed to address this deficiency; and

·        the MIQ system did not have an adequate mechanism to determine when a citizen faced unreasonable delays.

The second declaration stated the Chief Executive of MBIE erred in law by misinterpreting the following powers under the COVID-19 Public Health Response (Isolation and Quarantine) Order 2020:

·        the emergency allocation’s 14-day requirement, which should have been estimated from the departure date rather than the arrival date;

·        the emergency allocation’s criteria requiring there be “no other option”, which was applied too narrowly to include only people presently liable to deportation; and

·        the group allocation’s decisions, being made by the Minister acting with a Ministerial Group rather than the Chief Executive as required by the Order.

Mallon J stated the parties had reached agreement on the issue of costs, and no order was sought from the Court.

For more information on judicial review, please contact Director Brigitte Morten.

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