A complex, tricky challenge to the MIQ system by Kiwis stranded overseas begins today at the High Court. Dean Knight outlines the big picture legal issues at stake.
Border restrictions, including managed isolation and quarantine (MIQ), have been controversial over the past two years of the pandemic. Many point to the crucial role border restrictions have played in keeping our community safe. Without doubt, the ‘keep it out, stamp it out’ approach has avoided our country being ravaged by the virus.
Others condemn the border fortress and high hurdles those abroad must surmount to come home. Without doubt, difficulties securing entry and strict quarantine on arrival have caused much pain and turmoil for our diaspora, and disrupted the global aspirations of others.
The debate about the virtue and vices of MIQ has its legal episode this week as the High Court hears a challenge to these border restrictions brought by Grounded Kiwis, a group advocating for New Zealanders abroad troubled by the border restrictions. It’s arguing MIQ unduly limits the right of citizens to return home contrary to the New Zealand Bill of Rights Act 1990: section 18(2) says “every New Zealand citizen has the right to enter New Zealand”.
The legal questions arising from this claim are complex and tricky, as is often the case with human rights challenges. Bill of Rights cases involve a delicate and focused appraisal of the Government’s justification for limiting individual rights in the pursuit of the broader public good.
Foretelling the prospects of success is a fool’s game, especially because that appraisal is intensely fact-specific and always a difficult judgment. That said, I suspect Grounded Kiwis will face an uphill battle knocking over MIQ’s core policy foundation. Doing so would press a judge to second guess the strong public health advice that has underpinned the border strategy. But the group’s prospects are perhaps stronger in relation to some of MIQ’s operational settings, especially its ‘street-level bureaucracy’. The sight of individuals with compelling personal circumstances being knocked back has been worrying.
It’s important to remember, though, this is a complex challenge to a multi-faceted regime that has operated with evolving settings over its lifetime. It’s not a simple question about legality and authority, as we saw in Borrowdale’s challenge to the lockdown. There are myriad legal arguments imbedded in the challenge. Their weight will depend on the aspects of MIQ that are being challenged and, perhaps, the moment of MIQ’s lifetime implicated by particular arguments.
At its core, the challenge attacks the Covid-19 orders made by ministers since September 2020 requiring people landing in New Zealand to quarantine in MIQ (although that requirement has been in place in some form since the onset of the pandemic). The Covid-19 Public Health Response Act 2020 allows for ministers to make orders insisting that people quarantine. But the Act also insists any orders be consistent with the Bill of Rights Act.
Grounded Kiwis argues the orders breach the right of return protected in s 18(2) of the Bill of Rights Act. There’s a similar right recognised in the Immigration Act 2009 but that protection can be overridden by Covid-19 orders.
It’s not hard to see the logic of the rights argument. While citizens are not strictly prohibited from coming home, the requirement to quarantine in state-managed facilities—when demand exceeds supply—imposes a significant hurdle; their right to return home is seriously, albeit indirectly, limited.
But that’s the starting point of any human rights argument—not the end point.
The Bill of Rights Act, by dint of s5, expressly allows protected rights to be limited, so long as those limits are “prescribed by law” and “demonstrably justified in a free and democratic society”. In other words, the case is not merely about whether the right of citizens to return has been limited but whether that right has been unjustifiably limited. The qualification is important. The right of return—both domestically and internationally—is not an absolute right, even if it’s an especially cherished part of citizenship.
Broadly, the focus on (un)justified limits translates to a utilitarian appraisal of MIQ. Does the public good of MIQ and its protection of people’s health and wellbeing outweigh the detriment those unable to return home suffer—especially in the light of reasonably feasible alternative approaches?
The courts have developed a very structured and focused proportionality calculus to answer this question—and that will dominate this week’s hearing. But, as mentioned, the bite of the arguments will vary according to their different targets, with the extent to which the court will be prepared to respect the balancing of public and private interests already undertaken by the minister.
What the court will consider:
First, existence. It’s undeniable that MIQ has led to positive public health outcomes.
It’s been a crucial weapon in our fight against the virus and a key aspect of our elimination strategy. And the court is unlikely to quibble with the government’s adoption of MIQ based, as it is, on strong health advice, even though some other countries have used different weapons to combat the virus. While some abroad have doubted the wisdom of elimination and its ‘keep it out, stamp it out’ playbook, it would be a very brave judge to rule that strategy was unjustified.
Second, application. The blanket requirement to quarantine in MIQ without ‘consideration of any risk factors’ is also challenged. More extensive self-isolation and/or tailored shorter quarantine should have been built into the system, Grounded Kiwis argues. Vaccination status, country of departure and prior infection should have been factored in.
In principle, this complaint might gain some traction. Judges—fortified by common law precedent—usually favour large doses of discretion and flexibility over strict and unforgiving rules. The former typically ensure justice is better delivered in individual cases.
But the public health emergency context might tell otherwise here. The virtue of MIQ has been its comprehensive and blunt character—consistent with the precautionary principle and elimination posture. A border fortress is only as strong as its weakest point. And the counterfactual might be crucial here: was this type of personalised risk assessment feasible and/or sufficiently reliable?
Third, capacity. The challenge also takes issue with the scarcity of available MIQ spots. Should more rooms have been built or commissioned? Restricted capacity has been the real sting of MIQ. But, looked at through a public health lens, throttling down the flow of incoming travellers, whether returnees or locals on return trips, reduces risk—which is the key objective. And the Government has also said more spots couldn’t be resourced.
Again, the public health justification will weigh heavily on the court’s mind. Lack of resources for more capacity might not pass muster, though. Existing jurisprudence suggests governmental impecuniosity should not be called on to excuse breaches of people’s rights. That said, the logistical reality of standing up more spots probably can’t be ignored, especially against timelines of uncertainty.
Fourth, allocation. Various approaches have been used to ensure the number arriving did not exceed MIQ capacity. Incoming flows were initially managed, through the airlines, by restricting the number of passengers booked on flights. An MIQ booking system was then adopted in late 2020. Following criticism, that was replaced last year with a system randomly allocating MIQ spots.
We expect the court to sweat these aspects of operational design quite carefully. The booking systems—first-come-first-served and the so-called lottery—unquestionably caused grief. Inevitably, there were winners and losers. And the emotional pain of the contest, especially random treatment, was palpable.
Yet, first-come-first-served or randomised allocation are not uncommon—and arguably administratively legitimate—ways to allocate scare resources.
But should the Government have designed a more complex and granular system that more closely judged a person’s reason for returning, over-and-above the existing provision for emergency cases and critical personnel? The government was reluctant to do so because of the bureaucratic challenges of such a scheme and the difficulty in comparing normative claims from applicants for priority.
Even still, some crude points system would have removed the anxiety of chance, if that was administratively feasible. But one wonders whether this counterfactual regime would have merely replaced one type of grievance with another: there would still be winners and losers.
Finally, exceptions. Allied to the appraisal of the standard means of allocating spots is the question of whether allowance for critical, emergency and compassionate exceptions should have been drawn more generously. There have been regular stories about those with tragic circumstances who have struggled to obtain exemptions to come home or exit quarantine early. The threshold for emergency or compassionate exceptions were set quite high—something that may very well worry the court.
Again, the management of exceptions was coloured by the precautionary public health approach. Unavoidably, the process involved (unedifying) scrutiny of a person’s case for priority relative to others and assessment of the degree of risk they presented to the community.
But the individual rights-and-wrongs of the street-level bureaucracy administering exceptions might not be a large feature of this hearing. Individual instances of maladministration do not automatically condemn the system itself. Except perhaps where there is an aggregated mass of bureaucratic wrongs that were inevitable. Or when the system should have been designed with an internal mechanism to adequately right those wrongs.
The focus is expected to be more on the broad policy design and whether adequate provision was made for exceptions for different kinds of circumstances. And the challenge of that focus is that allocation and exceptions is a zero-sum game; if exceptions were enlarged, it would be even harder for those applying (and applying repeatedly) through the ordinary allocation process.
Nor do we expect the answer will be to simply condemn the critical worker exception, which has been relied on by essential workers, entertainers and sportspeople. This separate allocation was built in for the public good—“social and economic outcomes in the national interest”— and it might be difficult for a judge to assess the relative virtue of each.
At the end of the day, this is an important case. Our constitutional system is founded on the Government being accountable for its actions, both politically and legally. These judicial review proceedings, rightly, require the Government explain, justify and defend its border restrictions against legal and human rights standards. The task facing the judge is not an easy one, especially because the court’s task involves tricky balancing and value-based judgment.
And the Government’s recent announcement to recommence phasing-out MIQ adds an extra complication. The courts, on judicial review, are often shy about adjudicating on matters that are now moot or stale or in circumstances where their view won’t have any direct legal bite.
Regardless of result, the case invites us to reflect on the importance of being able to come home—to return to our tūrangawaewae—and how that can be realised without unduly compromising the health and wellbeing of those within our community. A difficult balance.
