A decision released this week set a legal precedent on the use of MIQ in New Zealand. Photo / NZME
The narrative pronouncing the victory of Grounded Kiwis tells only part of the story in the complex MIQ case, according to a Constitutional law expert.
Auckland University law professor Dr Jane Norton tells the Front Page podcast that the lengthy judgment released this week in fact provides a strong indication that the MIQ system was justified.
• Follow the Front Page podcast here.
"I think this is a win for the Government in many ways," she says.
"Obviously Grounded Kiwis is lauding this as a success for their side and the judge does say they have succeeded. However, if you look at the entirety of the 140-page judgment, the Government has won on all the major points. And in fact, the court rejected most of Grounded Kiwis' submissions."
Norton explains the court decision sets Governments up for the future use of MIQ, provided that they design the system in line with the suggestions made by the judge.
One of the core changes that would have to be made is greater consideration of the individual circumstances of citizens who need to return home. This takes particular aim at the lottery system, which saw Kiwis vying for spots in a virtual MIQ lobby.
"The MIQ spots are limited. It's a finite pool of resources. The judge's concern was that it didn't sufficiently take into account individual circumstances," says Norton.
"The judge's solution to that, at paragraph 425 [in the judgment], was to take some of those spots from the virtual lobby and put them into an offline system. That offline system would be able to take into account individual circumstances."
The fact that there was no alternative that took those individual circumstances into account contributed to the judge's decision in favour of Grounded Kiwis.
What we can take from this, however, is that an MIQ system would be justified if it were adjusted to accommodate these individual cases.
"The problem is that an alternative hasn't been tried and tested, so we don't know if moving more people into the offline system would have worked better," says Norton.
"It might have just created a whole new set of grievances. Also, having a bureaucracy set up to assess each individual case could be quite burdensome on the Government and on the person who's applying because they might have to provide evidence.
"This might end up pitting New Zealanders against each other. For example, you might have one person saying: 'My mother is 75 years old, so I should be allowed to come back earlier to look after her. Yours is only 55.' Another person might say: 'I've been away for one year, while you've only been away for six months.' So a whole lot of other problems could arise."
If a Government were to use an MIQ-style system in a future pandemic, then these issues would have to be addressed to ensure those individual cases are given enough consideration.
Despite the ruling in favour of Grounded Kiwis, the judgment does not provide any financial compensation for losses incurred.
The lawyers for Grounded Kiwis have only sought a declaration from the court that there had been an unlawful infringement of the rights in this case.
"It's really just a declaration of what the rights are and that they have been breached," Norton explains.
If any individuals wanted compensation off the back of this decision, they would have to bring separate lawsuits to the court.
"If the declaratory relief is along the lines that these rights have been unjustifiably infringed, then potentially an individual, who did have their rights infringed, could go to court to seek what's known as Baigent's damages. This involves compensation for Bill of Rights breaches. But it is very unusual for those to be awarded."
•
The Front Page is a daily news podcast from the New Zealand Herald, available to listen to every weekday from 5am.
• You can follow the podcast at nzherald.co.nz, iHeartRadio, Apple Podcasts, Spotify, or wherever you get your podcasts.
Wayne Langford, Todd Charteris, Jo Luxton, Stu Drew, and Chris Russell.