Kate MacNamara: Two court cases have not shown us the full extent of MIQ’s failures

OPINION:

This week a second court ruling struck at the legality of New Zealand’s long-running, but now largely dismantled, Managed Isolation and Quarantine system.

Grounded Kiwis won their case against the Government: elements of MIQ were illegal.

The suit presented a litany of case by case misery in the prevention of Kiwis abroad, in dire circumstances, to return to the country of their birth. They were on expired visas, without funds for healthcare during high-risk pregnancies, desperate to attend the funerals of dead relatives, and kept away from home for months on end while the lottery system of scarce vouchers shut them out time and again.

To the degree that MIQ failed to adequately weigh New Zealanders’ individual circumstances, particularly emergency circumstances, it was an unjustified limit on their right to enter the country.

But justice Jillian Mallon also spelled out her view that while the system failed many individuals, she did not reject it as a broad public health measure for avoiding and minimising sickness in a pandemic.

This has allowed Covid-19 Response Minister Chris Hipkins to sound a triumphant note in his response to the Grounded Kiwis case.

The Government appears to be considering whether to appeal against the ruling. But in the meantime, Hipkins crowed: “We welcome the Court’s determination that the requirement to undergo MIQ was lawful and was not an unjustified infringement of New Zealanders’ right to come home.

“The Court also ruled that the requirement for people entering the country to isolate was lawful and was reasonable and proportionate even when, from mid-October 2021, those in the community who had the virus and their close contacts were able to self-isolate at home.”

Hipkins implies a very sweeping vindication. But Grounded Kiwis brought a case that tested only specific parts of MIQ. Many of its elements remain untested.

And, it is conceivable, perhaps likely even, that more elements of the system might be found illegal if other cases were brought to test them. Take the question of proportionality, for example.

Specifically, should self-isolation have been an option, offered earlier than 2022, to accommodate returning New Zealanders?

In October, 2021, a court found that businessman Murray Bolton’s self-isolation plan for avoiding MIQ should not have been dismissed. The Ministry of Business, Innovation and Employment was forced to reconsider his application against the court’s broad criteria, and it was approved.

The judge in the case considered proportionality an important factor when he ruled in Bolton’s favour. The health benefits of denying Bolton’s self-isolation plan needed to be proportionate to overriding his rights, and it was pertinent that hundreds of Covid-positive community cases were self-isolating at home in Auckland at the time.

The Bolton ruling clearly prompted key officials Caroline McElnay and Ashley Bloomfield, in November, to revise their view that all incoming international travellers should be subject to MIQ.

Ultimately Bloomfield, and several other health experts, advised the Government to make a slow transition away from MIQ. And in the Grounded Kiwis case, Justice Mallon accepted that this advice meant that greater haste was not required, but with one very considerable caveat.

“I accept therefore that MIQ continued to be justified on public health grounds [after self-isolating positive cases were widespread in Auckland] at least for arrivals who would not be self-isolating in Auckland,” Mallon wrote.

In other words, the absence of the option for travellers to self-isolate in Auckland, where the virus was circulating and hundreds of positive cases were self-isolating at home, might well have been unlawful. But this wasn’t a question that justice Mallon was asked to consider.

Neither have the courts tested when this question of proportionality in Auckland might have shifted as a result of self-isolation of positive cases in that community.

Both Hipkins and the Grounded Kiwis case refer to mid-October, 2021 as the time at which those in Auckland with the virus and their close contacts were able to self-isolate at home.

That’s when the health order was amended to allow for such self-isolation, but the practice began three weeks earlier, on September 25, when the Northern Region Health Communication Centre said the first exemption to allow a positive case to home-isolate was given.

The change in policy appears to flow directly from an MIQ system, already overwhelmed a month earlier. On Sunday, August 29, over 400 Covid positive community cases and contacts were filling MIQ to near capacity.

“MBIE is expecting that available MIQ quarantine capacity will be exhausted by the afternoon of Tuesday 31 August,” an urgent briefing, released under the provisions of the OIA, warned Hipkins.

It asked the Minister to note that “MBIE considers that the current practice of accommodating all positive cases in MIQ facilities, even with strong IPC [infection prevention and control] measures and ventilation remediation work, carries increased risk to the MIQ workforce and the wider New Zealand public.

Earlier briefings to Hipkins reveal a largely failed scramble by the department to expand MIQ capacity as the Delta outbreak spread in August. It had sought to convert more hotels into quarantine facilities, but their owners balked at the stigma. It ran preliminary numbers on the likely cost and time entailed in buying hotels to retrofit for MIQ, and to build new facilities from scratch: it would have taken years, the costs were redacted. It weighed raising the cost of MIQ, preventing repeated use, and cancelling vouchers already issued. The issuance of new vouchers for returnees was “paused”.

In the end, on August 29, officials asked Hipkins to “agree to commission an All of Government response to identify an alternative to the sole use of MIQ quarantine facilities for the current community outbreak”. Hipkins agreed.

Legal challenges typically cost hundreds of thousands of dollars to mount, and since MIQ is yesterday’s story we’re unlikely to see other cases brought to test its legality. But that doesn’t mean we know the extent of its failures.

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