The High Court has ordered MBIE to reconsider a refusal to grant an MIQ exemption. But the system as a whole may not be sustainable for long, writes Andrew Geddis, law professor at the University of Otago.

The government’s announced changes to the Managed Isolation and Quarantine (MIQ) system appear to be less about easing the return of the thousands-upon-thousands who remain locked out of their country than a way to free up quarantine space to contain the expected wave of Covid-positive patients. That’s a shame, because I’m not sure that MIQ will be for much longer a sustainable concept on either legal or humanitarian grounds.

In the first round of our national battle with Covid, the concept of some kind of tough MIQ system made sense. We decided to eliminate Covid entirely from our community, and keep it eliminated. That meant the threat resided offshore, with anyone and everyone entering the country representing a risk of undoing our collective efforts. Consequently, an extremely “hard” border where entry was constricted and returnees were closely monitored and controlled was not just a good idea, but a necessary one to confront that threat. And so, while the legally recognised right of return to New Zealand was limited by MIQ requirements, that limit almost certainly would be considered justified at the abstract level.

Of course, that’s not to say that the way MIQ was implemented in practice lay beyond criticism. The overall number of places available to those wanting to return to Aotearoa reflected governmental resourcing decisions, as well as political preparedness to go against local communities opposed to having potentially infected “outside” people living among them. The basis on which MIQ places were allocated to those wishing to arrive, and the consequent numbers of different kinds of travelers able to do so, can be queried. The primary method of MIQ allocation – first a “fastest finger” approach, then an always resetting random lottery – might be considered unfair at best, discriminatory at worst.

To take but one example, I still cannot for the life of me see how the overall allocation process could regard the English netball team as being more deserving of a MIQ place than Bergen Graham, a pregnant New Zealand citizen whose request for an emergency spot in MIQ was turned down six times. A small part of me wonders if permitting decisions like this represented a form of extra reward for those of us resident in lifeboat Aotearoa. Our hard, collective effort had won “us” a normal life, and so our life would be made as normal as possible – netball games against international competition included. And if that meant our citizens and residents outside of the country suffered, well, maybe “they” just shouldn’t have left in the first place? Out of sight, out of mind, and all that.

Suspicions regarding just how fair and justifiable MIQ’s operation has been in practice are compounded by the way the government has avoided having its allocation decisions scrutinised. On the two occasions that people who were refused emergency MIQ spots took their claims before the courts, previous decisions that they failed to meet the criteria were reversed mid-trial. It may or may not be entirely coincidental that doing so had the consequence of putting the legal action to an end before the High Court had a chance to rule on the government’s actions. And now the government is busy moving the legal basis for making MIQ decisions from secondary legislation into a primary enactment. That this parliamentary move will have the effect of largely insulating the overall MIQ process from being judicially overturned at a time when it is being challenged in the High Court again may or may not be coincidental.

Ultimately, the ombudsman’s inquiry into the MIQ booking system might give us some answers to questions regarding the way the government went about running this process. However, any such answers will likely be moot, given the changes that already have been announced and those that I think are going to have to happen to it in the future. Because, the original purpose of MIQ, and the processes used to achieve that purpose, seem less and less justifiable as circumstances change. First, and perhaps most importantly, delta’s rise means we no longer are a Covid-free nation. While bringing more Covid cases into the country obviously would not be desirable, the danger it poses can now be contrasted with the risk of virus spread within and between areas of New Zealand. And we now have vaccines that reduce the risk of individuals spreading Covid, meaning that not every person represents the same level of danger to the rest of us.

Those facts change the ballgame markedly. Because, from a rights perspective, it seems almost impossible to justify effectively barring a double-vaccinated New Zealand citizen from returning to their country to self-isolate for a week (or longer) while simultaneously allowing a non-vaccinated New Zealand citizen to travel from Auckland to Christchurch with no concomitant requirement to isolate. Which of these individuals then poses the greater risk of spreading Covid? And, if it is the latter (as we’ve just seen), why is their right to move within New Zealand being honoured when the rights of New Zealanders to move into New Zealand are curtailed?

This, in a nutshell, is going to be the government’s problem going forward. Imposing tight clampdowns on internal travel is going to become more and more difficult from a political perspective. Yet, if internal travel is permitted in spite of the risk of Covid spread involved, then how can international travel continue to be tightly constrained? The only reason would seem to be “you’re not here, so you just don’t count as much”. But that is precisely what guaranteeing the right of New Zealand citizens to return to this country was intended to preclude.

The problem with the answer to this issue given by the PM – “even if you have a wildfire it doesn’t mean it’s OK to go around striking matches” – is that it sees those living overseas purely in terms of risk. And, yes, they do pose some risk to the country. But they also possess rights, including the right to return home. And if others rights to travel in Aotearoa are being respected despite the risks they pose, then why aren’t theirs? To use Ardern’s analogy, on what basis is it OK to stop matches being struck when people are being allowed to ferry burning brands from the wildfire from one place to another?

We may have seen the first hints of this sort of approach in a High Court decision handed down yesterday, where the Ministry of Business, Innovation and Employment was ordered to reconsider a refusal to grant an exemption to MIQ requirements to a “multimillionaire and prominent businessman”. The particular facts of the case are unlikely to be repeated. Indeed, they have a certain Succession mood about them – the businessman involved wishes to fly to the US on a private jet to attend a board meeting, and then self-isolate in his home upon his return. But it’s the things that Justice Venning required MBIE to go away and look at again that are revealing. Most importantly, MBIE was told to examine “the need of the applicants to enjoy rights conferred by the New Zealand Bill of Rights Act 1990, including the right to freedom of movement and as citizens to enter New Zealand without unreasonable limitation”. MBIE, Justice Venning said, then must “balance those considerations against the degree of risk to the community of further spread of Covid-19 involved in the applicants’ isolating or quarantining at a place other than an MIQ facility”.

Perhaps at the end of the day, having done so, MBIE still will consider the risk too great and so refuse the exemption. At which point, it will be interesting to see if the court accepts that assessment or goes a step further and orders MBIE to grant the exemption in question. Because, as time goes on and the balancing of Covid risks makes it harder and harder to demonstrate that New Zealanders overseas are more dangerous than those at home, then the basis for the sort of MIQ system we have been operating will become more and more difficult to justify.