High Court Upholds Freedom of Movement in MIQ Case

In September 2020, the Government issued the Covid-19 Public Health Response (Isolation and Quarantine) Order 2020 (“the Order”), which requires that anyone who leaves NZ must self-isolate at a managed isolation facility for 14 days upon return. This Order has led to consternation for many hopeful NZ returnees who have found it almost impossible to book a spot in MIQ and thus to return to NZ. Now, in a recent decision, the High Court has released a judgement questioning MBIE’s approach to MIQ.

Section 18 of BORA provides for freedom of movement. In particular, it provides that every NZ citizen has the right to enter NZ and that everyone has the right to leave NZ. However, Section 5 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 travelled to Boston applied to self-isolate at his residence rather than in managed isolation due to the near impossibility of booking an MIQ spot, but his application was declined on the basis that “exemption or early release from managed isolation can… only be approved for exceptional reasons.”

The High Court was critical of this decision. It pointed out that clause 12(2) of the Order allows a medical officer of health to determine “for any reason” that a person may isolate in any other place and stated that this reason did not have to be exceptional. Clause 12(2) can only not be considered where a medical practitioner has been 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 considered that there was no need to limit “other needs” to medical, physical, or mental health needs and that it could include the need to exercise available rights under BORA. It argued that this interpretation would uphold BORA which requires that where a law 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 Court held that the purpose of the Order could be met by allowing home self-isolation in the terms proposed which would limit the risk of spread of Covid-19, and that in refusing the proposal MBIE failed to take into account relevant considerations, such as the fact that 143 people with Covid-19 were already self-isolating at home, and the applicant’s right to freedom of movement.

We will all be looking to see what effect this decision may have on the Government’s approach to MIQ.