MIQ ruling: High Court has told govt it 'overstepped the mark', lawyer says

The High Court has given the government "a clear steer" to find a better way to operate the managed isolation and quarantine system if it's needed in future, a lawyer says.

Grounded Kiwis on a High Court challenge to the MIQ system, arguing it was unlawful and in breach of the Bill of Rights.

Yesterday, the High Court found the MIQ lottery "did not sufficiently allow individual circumstances to be considered and prioritised", and the emergency allocation categories were too tight.

Justice Mallon found the requirement for returnees to undergo MIQ was lawful, and was not an unjustified infringement of New Zealanders' rights to come home.

But she said it was inevitable the system would operate unjustly when demand exceeded supply.

Paul Radich QC, who was the lead lawyer for Grounded Kiwis, said the key things that Grounded Kiwis were concerned about have been included in the judgement - the lottery system, the system breaching the rights of New Zealanders in terms of group allocations and the strict use of the emergency criteria that excluded too many needy people.

"They've been covered by the judge very well and the Grounded Kiwis group is very content."

He said it was too early to say if the group would fight any appeal by the government.

The legal team will work with Crown counsel on behalf of the government to put in place the wording of some declarations based on the judge's ruling.

The declaration is one of the most important parts of the legal system, reinforcing the separation of the government and the courts, Radich said.

"The courts are able to say to the government at times you've overstepped the mark here in terms of fundamental rights so it's a message to the government rather than anything else."

The judgement would be especially significant if the MIQ system was needed again.

"This is a very clear steer from the court as to to how the system might be better set up so it doesn't breach those rights."

It was not a challenge to the government's elimination strategy or the need for MIQ.

"It was just the way it was calibrated to get those people who were suffering real hardship home."

Asked if a higher court needs to rule on the legality of the MIQ system he said he would hope not.

"It's been a very fair outcome."

The outpouring of support for Grounded Kiwis was unprecedented in his experience.

"This case was so significant in terms of the hundreds and hundreds who were there in support, who were giving messages."

There had been cases that "brought a tear to the eye" and there was a real need to get decisions right for who should have been prioritised for an emergency room.

The government should have found a better way of assessing the emergency criteria and the judge found that people needed a place in MIQ if they were suffering real hardship while overseas.

"The judge was making the point that the way it operated was not justified in a just society."

Campaigner welcomes 'accountability'

A woman who campaigned to make pregnancy an MIQ priority category is delighted the High Court has found the MIQ lottery system was flawed.

Roshni Sami was pregnant last year when she and her husband went to court to fight for an emergency MIQ spot for him to be able to return from work in the United States for the birth.

She told First Up she needed her husband with her in the final stages of her pregnancy because she had some complications.

However, her husband was refused a place and the couple realised that there were severe flaws with the system because virtually no one qualified to use the emergency criteria.

She was also trying to help other pregnant women stranded overseas but there was never any definitive answers from the government on the issues they raised.

"I'm really pleased that finally there's starting to be the accountability," she said in reaction to the High Court ruling.

She remains disappointed that the watchdogs such as the Human Rights Commission and the Minister for Women did not take a strong stand to help them.

Apologise and move on - National

National Party spokesperson for Covid-19 Chris Bishop is calling the ruling a victory for Grounded Kiwis, however, it was unlikely that those aggrieved by their treatment under the MIQ system would receive compensation.

Grounded Kiwis had sought a declaration rather than damages from the court that MIQ put unjustified limits on New Zealanders' rights to return home.

Morally people might be entitled to compensation, he said, citing examples of those who missed out on seeing loved ones before they died as well as people stuck in countries in which they did not have a right to be in.

Bishop does not favour the government appealing the ruling.

"I think it's best if they just accept the ruling, and acknowledge it, come to a form of agreement with Grounded Kiwis over what the declaration says and then essentially issue an apology and move on."

He said an appeal would probably take another year and prolong the pain some New Zealanders have suffered.

It would also send a message that the government did not believe it had done anything wrong. "Many people think they did."

The judge had confirmed that people have rights that are enshrined in the Bill of Rights.

"What the judge found, what Justice Mallon said yesterday, [was that] there were better ways of giving effect to those rights while still maintaining public health protections and the Crown essentially didn't explore them."

National had suggested last September a points system for MIQ and the government ruled it out, and the judge said they should have looked at it.

Hard to design better system - Robertson

Deputy Prime Minister Grant Robertson described the MIQ system as the "least worst option" to save lives during the pandemic.

He told First Up he is "extremely regretful" at the distress that was caused, however, it had to be balanced with handling a public health emergency.

He said the virtual lobby was an attempt to replace the earlier system where people were paid to sit online and grab available MIQ spots for returning New Zealanders.

He said although the judge found that an individualised system would have been fairer, it would have been hard to implement.

"Creating that, designing that, putting it in place in the midst of the public health emergency we had was a huge challenge ... it's very hard to design a perfect system."

There would always be people who missed out no matter how the MIQ system operated.

The relevant ministers and the Crown Law office will take some time to review the judgement, he said.