Well known socialite, fashion blogger and apparent Constitutional Law expert Jamie Ridge recently had her views prominently placed in the august pages of the largest paper in the country the New Zealand Herald. Her clear conclusion was that the MIQ arrangements were completely unconstitutional.
I am no socialite and I do not blog about fashion but I have a law degree and I have spent 37 years practising law.
And with the greatest of respect to Ms Ridge I get the impression that she does not know what she is talking about and apart from the clicks I do not understand why the Herald would have converted her Instagram rant into an actual story.
A review of cases relating to the Government’s handling of Covid gives a clear impression of the balancing act the courts have applied to each case.
There have already been a number of legal challenges to the Government’s various Covid policies. The vaccine mandate has had three attempts to rule it out, each unsuccessful. Aviation security employees, and midwives and customs officers have each failed.
There was also an attempt to have the Health Orders underpinning the closure of businesses, physical distancing and the requirement for people to stay at home ruled illegal. This case made its way to the Court of Appeal who ruled that the limitations on these rights were justified.
In its decision the Court provided this description provided by Ashley Blomfield about the early days of Covid and how the Government response was formulated. The passage provides a fascinating background to what was happening at the time.
The timeline of what happened was almost like a wave coming in: we could see it emerging in the distance during January and started watching carefully. In February the wave grew bigger and came closer: we started putting in place border protections and preparing the health system to deal with outbreaks. By March we were realising that this threat was unprecedented, and if the virus got established in New Zealand it would be catastrophic – there would be many cases and deaths, the health system would be overwhelmed and the impact on society and the economy would be appalling. We made the call that we did not have the option of “coping” with the virus as envisaged in the “manage it” phase of our pandemic plan:11 our only option was a prolonged effort to keep it out and stamp it out. Furthermore it was clear that decisions needed to be made quickly and pre-emptively, hence the “go hard, go early” approach.
Then came a tipping point around the weekend of 21 – 22 March: modelling coming in from experts, both in New Zealand and around the world, was showing that once community transmission took hold, we would lose our window to stamp out the virus, that there would only be one shot at this. At the same time, we were getting our first confirmed community transmission cases. We realised that “go early” had changed to “go right now”, and there was no time left. What we thought could be done in two weeks or two days had to happen now: it was quite literally now or never. Hard decisions were required, and we made them, as it was now clear that this was the best – in fact the only – way to protect the health and well-being of New Zealanders, prevent our health system being overwhelmed, and avoid prolonged damage to our economy.
In this case the applicant claimed breaches of six distinct rights, freedom of expression, manifestation of religion and belief. freedom of peaceful assembly. freedom of association. freedom of movement. and liberty of the person.
The Court agreed that the measures were prima facie restrictions on the freedoms of peaceful assembly, association and movement but considered that these restrictions “are clearly justified in a free and democratic society in order to protect the health and wellbeing of members of society by preventing and limiting the impact of contagious diseases, such as COVID-19.”
The judges did not spend too much time on the subject. But clearly their view was that being in the midst of a pandemic means that rights are going to be justifiably curtailed.
With regards to MIQ there are as far as I am aware two cases questioning the policy’s validity.
One involved a rich lister Murray Bolton who threw his considerable resources at an application for judicial review seeking that he be allowed to isolate at home rather than in MIQ. He was double vaccinated. The essence of his case was that the notice creating the MIQ system had been misinterpreted. MBIE had interpreted the phrase “other needs” in clause 12 of the Isolation and Quarantine order as medical needs and the Court said this particular phrase had to be interpreted more widely.
Of note is that the system itself was not under attack, just some of the finer details associated with the system.
Mr Bolton succeeded and the Judge ordered that his application be reconsidered. I am not aware what happened finally but the Government had already introduced a trial project allowing some to isolate at home.
The other case is pending and is due to be heard in a couple of weeks’ time.
Ms Ridge may think that MIQ is completely unconstitutional but I don’t know what else the Government can do. It is doubtful that more resources can be applied to increase the numbers of beds and in any case increasing numbers only increases the risk of Omicron escaping. All the Government can do is adjust priorities and perhaps shorten the time that people are required to stay in MIQ or increase the numbers who can isolate at home although after the recent experience with DJ Dimension and with Omicron cases surging you wonder why any Government in its right mind would loosen current restrictions. Isolating at home may be easier to achieve but this could potentially be a recipe for disaster. It would only take one person to go walk about for the variant to escape and as shown overseas once that particular genie is out of the bottle it is impossible to put it back in.
It is not as if the Government wants to keep these measures in place permanently. It previously planned for a gradual reopening of the borders after the introduction of the traffic light system. In November it announced that returning kiwis from Australia who were double vaccinated would be allowed to quarantine from home from next week. The emergence of Omicron changed all that and has forced a reversal of that policy.
Anyone currently in Australia or the United States who thinks that we should just open up given what is currently happening in those countries should seriously review their priorities.
And the trouble with Omicron is that every time you increase the numbers going through MIQ you increase the risk of the variant escaping. Even with existing requirements to have a clear test 72 hours before departure cases keep popping up and they are currently on the increase.
All of the decided cases show a consistent approach. The New Zealand Bill of Rights Act 1990 is relevant but section 5 shows the rights are not omnipotent and are subject to such limitations that can be demonstrably justified in a free and democratic society.
In the middle of a pandemic the Government can take action for the common good even though this may infringe individual rights or at least people’s expectations of what those rights are.
Anyone thinking that the MIQ system is completely unconstitutional needs to recalibrate their thinking. In the middle of a global pandemic individual rights have to be modified for the common good.