New Zealand hotel quarantine ‘lottery’ breached citizens’ right to return home, High Court rules say

On Wednesday, Judge Jillian Mallon delivered her judgment in a long-awaited judicial review of New Zealand’s strict pandemic border controls, including mandatory quarantine.

The review, over two days in February, was organized by Grounded Kiwis, a group of rabid Kiwis who paid nearly $183,000 for the court case.

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Justice Mallon held that 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 criticized the government’s failure to move the most needy Kiwis in the queue to get a place in quarantine, known locally as MIQ.

“Every New Zealand citizen has the right to enter New Zealand,” Judge Mallon said as she began her 140-page judgment.

“This is a fundamental freedom which in New Zealand may only be limited by the state if such limitation is prescribed by law and demonstrably justified in a free and democratic society.

“Although the MIQ has been an essential part of the government’s elimination strategy which has been very successful in achieving positive health outcomes, the combination of virtual lobbying and narrow emergency criteria has worked in such a way that that the right of New Zealanders to enter their country may be infringed.”

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Justice Mallon issued criticism during the quarantine ballots, which were held sporadically to allocate MIQ places when demand exceeded supply.

These spots were randomly distributed, meaning thousands of Kiwis repeatedly missed out and were given no time to pass.

She also denounced the “narrow” use of the emergency criteria which denied entry to many bad luck stories “in a way that was not demonstrably justified in a free and democratic society”.

“Some New Zealanders have experienced unreasonable delays in exercising their right of entry. The MIQ system did not have an adequate mechanism to identify them,” Justice Mallon said.

“The virtual lobby did not prioritize New Zealand citizens over non-citizens.

“He also didn’t prioritize the need or the delay suffered.”

“State Sponsored Cruelty”

The decision is cold water in the eyes of the government, which has repeatedly insisted that the MIQ regime is 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 have been shocked by the extraordinary suffering inflicted on many people as a result of the MIQ lottery,” said Opposition COVID-19 spokesman Chris Bishop.

“Kiwis were stranded offshore and could not return even when their visa rights expired in the countries they were in.

“We now have judicial confirmation of the state-sponsored cruelty that was the MIQ lottery.”

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COVID-19 minister Chris Hipkins said the pandemic had prompted “difficult compromises” and the government is “considering carefully” the decision.

“The MIQ has always been the least worst option to prevent COVID-19 from entering and spreading in New Zealand,” he said.

In recent months, the government has eased its border controls, allowing citizens, then Australians, and from next week all foreign travelers to bypass quarantine.

With the arrival of the Omicron variant in January, COVID-19 has spread widely in New Zealand, removing the basis for border restrictions.

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