Has New Zealand Finally Been Ordered to Allow Freedom of Movement?

In response to the Covid-19 pandemic, the Government issued the Covid-19 Public Health Response (Isolation and Quarantine) Order 2020 ("IQ Order") in September 2020.

Most kiwis are well aware of the IQ Order, and understood it to mean that if we leave New Zealand, we will be required to self-isolate at a managed isolation facility for 14 days upon our return (until the announcement last week confirming a shortening of the managed isolation period for residents returning to NZ after 14 November 2021).

Section 18 of the Bill of Rights Act 1990 provides for the freedom of movement. In particular:

1. Every New Zealand citizen has the right to enter New Zealand; and

2. Everyone has the right to leave New Zealand.

It is clear that this right has been heavily restricted by the IQ Order with many New Zealand citizens who leave New Zealand being concerned that they will not be able to return when planned. Getting an MIQ spot has also proved problematic for many given the lottery that is the "lobby".

However, Section 5 of the Bill of Rights Act 1990 confirms that the rights and freedoms contained in the Act are subject to "reasonable limits" which "can be demonstrably justified in a free and democratic society".

Recently, a businessman who had a board meeting in Boston in early November applied to self-isolate at his residence, rather than applying for an MIQ allocation on his return. His reason for doing so was that it would be almost impossible to guarantee a spot otherwise given the very limited number of MIQ rooms available, particularly during traditionally busy travel periods. His application was declined on the basis that an "exemption or early release form managed isolation can… only be approved for exceptional reasons".

The High Court (Venning J) recently released a judgment questioning MBIE's approach to the MIQ system.

The first point made by the Court is that clause 12(2) of the IQ Order allows a medical officer of health to determine "for any reason" that a person may isolate in any other place. In the present case, this was the applicant's residence. That reason did not have to be an exceptional one. The only time a medical officer of health did not need to consider clause 12(2) is where a medical health practitioner or the overseas equivalent is consulted, or where the person seeking to self-isolate does not have "particular physical or 'other needs' that require another type of facility or place".

The Court then went on to discuss what "other needs" were relevant and noted that the purpose of the IQ Order was to prevent and limit the risk of the spread of Covid-19 and consequently that there was nothing contrary to that purpose to limit those "other needs" to medical, physical or mental health needs. The Court held that "other needs" included the need to exercise available rights under the Bill of Rights Act.

The Court also held that this interpretation was the most appropriate in order to uphold the Bill of Rights Act itself. Where a law is passed which limits the rights and freedoms provided for in the Act, it should be "interpreted in a way that the restrictions on the rights are minimised". The purpose of the IQ Order can be met if the needs of the person self-isolating can be met in the way they have proposed, and on conditions that prevent and limit the risk of the outbreak or spread of Covid-19. The Court further noted that the applicants had a higher risk of contracting Covid-19 in an MIQ facility than in their private residence, particularly on the terms they had proposed.

Ultimately this led the Judge to the conclusion that MBIE failed to take into account relevant considerations, including the fact that 143 people with Covid-19 were self-isolating at home, the need to avoid the risk of contracting Covid-19 at an MIQ facility and the right of applicants to enjoy the benefits conferred on them by the Bill of Rights Act, including the right to freedom of movement, and as citizens, to enter New Zealand without unreasonable limitation.

Please direct any enquiries to:

John Burley (Partner) on (09) 306 6741 (jburley@mcveaghfleming.co.nz)