A crowdfunded High Court review into New Zealand’s COVID-19 quarantine regime has embarrassed Jacinda Ardern’s government by finding some of its tough border rules at odds with the bill of rights.
On Wednesday, Justice Jillian Mallon handed down her judgement in a highly anticipated judicial review of New Zealand’s strict pandemic border controls, including mandatory quarantine.
The review, over two days in February, was brought on by Grounded Kiwis, a group of enraged Kiwis who chipped in almost $NZ200,000 ($A183,000) for the court case.
Justice Mallon found the border regime was justified on public health grounds, even though the Bill of Rights explicitly guarantees citizens the right to enter New Zealand.
However, she criticised the government’s inability to bump Kiwis in the most need up the queue to gain a place in quarantine, known locally as MIQ.
“Every New Zealand citizen has the right to enter New Zealand,” Justice Mallon began her 140-page judgement by stating.
“It is a fundamental freedom that in New Zealand can be limited by the state only if that limit is prescribed by law and demonstrably justified in a free and democratic society.
“Although MIQ was a critical component of the Government’s elimination strategy that was highly successful in achieving positive health outcomes, the combination of the virtual lobby and the narrow emergency criteria operated in a way that meant New Zealanders’ right to enter their country could be infringed.”
Justice Mallon levied criticism at quarantine ballots, which were held sporadically to allocate MIQ places when demand outstripped supply.
Those places were handed out on a random basis, meaning thousands of Kiwis repeatedly missed out and were given no timeframe for success.
She also hit out at the “narrow” use of emergency criteria that denied many hard-luck stories entry “in a manner that was not demonstrably justified in a free and democratic society”.
“Some New Zealanders experienced unreasonable delays in exercising their right to enter. The MIQ system did not have an adequate mechanism for identifying them,” Justice Mallon said.
“The virtual lobby did not prioritise New Zealand citizens over non-citizens.
“Nor did it prioritise on need or the delay experienced.”
The decision is cold water on the face of the government, which repeatedly insisted the MIQ regime was legal.
It is also a judicial rebuke to Ms Ardern’s personal brand of kindness in politics, which has been tested by the COVID-19 pandemic.
“Month after month, New Zealanders were shocked at the extraordinary suffering inflicted on many people because of the MIQ lottery,” opposition COVID-19 spokesman Chris Bishop said.
“Kiwis were stuck offshore and couldn’t return even when their visa rights expired in the countries they were in.
“We now have judicial confirmation of state sponsored cruelty that was the MIQ lottery.”
COVID-19 Minister Chris Hipkins said the pandemic had prompted “difficult trade-offs” and the government is “carefully considering” the decision.
“MIQ was always the least worst option to help keep COVID-19 from entering and spreading in New Zealand,” he said.
In recent months, the government has relaxed its border controls, allowing citizens, then Australians, and as of next week, all foreign travellers to bypass quarantine.
With the arrival of the Omicron variant in January, COVID-19 has now spread widely in New Zealand, removing the basis for the border restrictions.
