Alexandra Birt from Grounded Kiwis talks about how she felt about the hearing. Video / Hazel Osborne
OPINION:
The rapid-fire decision-making and law-making the Government resorted to during the Covid-19 outbreak has now resulted in it getting at least two bloodied noses dispensed by the High Court.
The latest is this week's High Court decision taken by Grounded Kiwis against the Government's operation of MIQ at theend of last year - a period which saw the chances of getting back into the country put in the hands of lady luck and a vast number of stories of Kiwis in distressing situations struggling to return home. Pregnant journalist Charlotte Bellis was one of the most high profile - but she was also the tip of the iceberg.
As with an earlier court decision which found mandates in the police and defence force were unlawful, the MIQ decision was on limited points.
It will have come to the Government's relief that the courts did not find MIQ as a whole was unlawful, nor the requirements for isolation periods, although Grounded Kiwis had not argued those were unlawful.
It was a fairly narrow judgment which found that the use of the lobby system to get into MIQ and the way emergency applications were dealt with in the last few months of 2021 had fallen short.
But it contained words no Government should ever want to see: that unfairness in the way it operated that system imposed unjustified limitations on the rights of its people – in this case, the right of a New Zealander to come home.
Governments like to take credit for what they get right, but they should also take accountability for the things they get wrong.
Covid-19 Minister Chris Hipkins' response "acknowledged" the court ruling on that issue but did not apologise to those people.
He claimed vindication from the comments in the judgment that MIQ was lawful and the requirements for isolation were reasonable to achieve the public health objectives of keeping Covid-19 at bay.
The Opposition – National's Chris Bishop and Act's David Seymour – are claiming vindication from the ruling that the use of the lobby system and management of the emergency allocations unjustifiably infringed on Kiwis' rights to come home.
It was something both had pushed hard on last year, and urged changes – the same changes the court suggested could have been useful.
Whatever spin is put on the judgment, what is indisputable is both that MIQ was crucial in New Zealand's ability to keep Covid-19 out for so long – and painful to the New Zealanders that it also kept out.
That is why the verdict in the court of public opinion has sometimes differed from that in the courts of law.
Public polling showed high levels of support for MIQ and mandates throughout, even after the heartache it delivered ratcheted up in the last months of 2021.
But the court's verdict is a crucial check on a government, especially a government which has pushed through laws that impact on peoples' rights with very little in the way of the usual public input and debate. That has been the case with lockdowns, with vaccine mandates and with border closures.
Grounded Kiwis MIQ petitioners present a petition on MIQ for returning New Zealanders at Parliament. Photo / John Weekes
But public support does not mean a government can simply ignore questions about whether its actions are legal or fair on the people they affect on the grounds that it was worth it in the end. It has to take accountability for it, whatever the political embarrassment that may ensue.
Hipkins' response to judgment spoke of the trade-offs required, the challenges for Kiwis overseas and "acknowledged" the issues the court ruled had fallen short: the same issues Grounded Kiwis had taken legal action over in the first place.
The lack of any apology indicates the Government is considering appealing the decision, as it has with the court decision against vaccine mandates for the Police and Defence Force. (The courts have also since ruled that the mandates in the health workforce are lawful, because different rules apply).
An appeal might seem redundant, given MIQ (touch wood) is no longer in use for New Zealanders at least.
But there are two compelling reasons for appealing it: one is the potential issue of whether compensation will be sought by those who missed out on MIQ slots because of the criteria being used. (Though Grounded Kiwis has not sought damages).
The more important one is to test whether the legal reasoning will stand in a higher court – not only on the elements in which the High Court found against the government, but to test its conclusion that MIQ and isolation were lawful.
When extraordinary powers are being used by a Government and it has been found wanting, it has to be tested fully – in case those same powers are needed again.
It would take a very brave government to bring back MIQ, one of the necessary evils of Covid-19.
