New Zealand, High Court of New Zealand , 27 April 2022, Grounded Kiwis Group In. v Min. of Health, CIV-2021-485-556
Case overview
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Link to the full text of the decision
General Summary
The Applicants argued that the restrictions placed on New Zealand citizens and the system of allocating places/ quarantine vouchers to returning residents and citizens to New Zealand imposed an unjustified limit on their right to enter New Zealand. As a consequence, this system breached their fundamental right to re-enter their own country as contained in section 18(2) of the New Zealand Bill of Rights Act 1990 (“BORA”). Furthermore, they argued that any fundamental freedoms can only be limited by the State if that limit is prescribed by law and demonstrably justified in a free and democratic society pursuant to section 5 of BORA.
The Applicants put forward 4 arguments in relation to the system of re-entry during COVID-19 and were successful with 2.
Declaratory relief was to be determined as the relief originally sought by the Applicants now differed due to the time taken for the Application to be heard. New Zealand’s borders were open by the time the matter was heard.
Facts of the case
From 10 April 2020 until 28 February 2022 all arrivals, including New Zealand citizens, were required to enter Government-managed isolation facilities (MIQF) and to submit to medical testing. This requirement was part of the New Zealand’s elimination strategy of COVID-19.
New Zealand citizens seeking to return to New Zealand between 1 September and 17 December 2021 were required to apply for a voucher enabling them to isolate at a government managed isolation and quarantine (MIQ) facility for a period of 14 days.
A group of returning New Zealand citizens “Grounded Kiwis” made an application to the High Court alleging that the system allocating places imposed an unjustified limit on their right to enter New Zealand.
The Applicant’s application comprised of four key arguments. Firstly, that the need to have a voucher to a MIQ facility represented an unjustified restriction on their right to re-enter New Zealand. It was submitted that the testing and isolation protocol for MIQ was not proportionate to the changed community standards which enabled a shorter isolation period and that this resulted in some New Zealanders being denied entry for over 3 months. Secondly, that allocations for MIQ places were made in an offline process to groups which then removed available places to New Zealand citizens and therefore failed to prioritise citizens over non-citizens. Thirdly that the voucher system was effectively a random and “lottery” style system which did not prioritise citizens over non-citizens. It alleged waiting time was not factored in as a relevant consideration for priority for a voucher. Finally, that the requirement for emergency applications was that the application be made 14 days prior to intended departure however this was misinterpreted by the Ministry as “intended arrival” and in addition, failed to take into consideration a person’s financial or mental health circumstances.
The Court concluded that the first and second elements of the application were not sustained and that the voucher system did not represent an unjustified limit on a citizen’s right to re-enter New Zealand nor was the testing and isolation protocol disproportionate to what was expected in the community. The Court concluded that returning travellers posed an increased risk of COVID-19 and the testing and isolation procedures adequately reflected this.
The Applicants were successful on elements 3 and 4 of their application. The Court found that there were errors in the process for group allocation and that the online was not an appropriate mechanism to deal with the volume of applications to return, particularly with reference to those New Zealand citizens who had a “fundamental right” to re-enter their own country. The emergency allocation of vouchers was also a flawed process which failed to prioritise returning citizens on the basis of waiting period or emergency circumstances.
Ultimately the Court concluded that the MIQ voucher system operated as an “unjustified limit on the right of New Zealand citizens to enter their country.”
The Respondents submitted that relief should be declined and judicial review be dismissed as subsequent legislative changes and events had overtaken the Application. This included the dismantling of the managed isolation quarantine system. The Court rejected the Respondent’s arguments and stated that relief is discretionary where the Court upholds one or more ground of review as in this case. The Court confirmed that the starting point is that relief should be granted and there needed to be “extremely strong reasons to decline to grant relief.”
The Court went on to state at [431] that
“Declarations perform the critical constitutional function of vindicating legal rights and promoting the ideals of the rule of law. They announce to the world at large breach of the applicant’s rights and operate as a vindication for the prejudice or loss suffered.”
Type of measure challenged
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Individual / collective enforcement
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Private collectiveDefendant(s)
Public
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Reasoning of the deciding body
The Court considered the right to enter as contained in section 18 of BORA with reference to section 5 which provided that “those rights and freedoms may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The Court had reference to the “right to mobility” as contained in the International Covenant on Civil and Political Rights (ICCPR).
The Court outlined the test to be considered when determining if a limit to freedom can be demonstrably justified with reference to R v Hansen [2007] 3 NZLR 1 at [101] and [104] and stated that the Crown bears the onus of showing that a limitation:
a) is prescribed by law;
b) serves a purpose sufficiently important to justify curtailment of the right or freedom;
c) is rationally connected with the purpose; and
d) is in due proportion to the importance of the objective
It was appropriate to give some weight to how the Minister balanced the rights of individuals and the needs of society depending on the circumstances. The Court also had regard to the precautionary principle and confirmed that when making decisions in circumstances of uncertainty, it is important to act on the best available information to protect the health of New Zealanders.
Having regard to the evidence presented, the Court ultimately found that the system of return did not “sufficiently allow individual circumstances to be considered and prioritized where necessary” and as such it operated as an unjustified limit on the right of New Zealand citizens to re-enter their country.
Conclusions of the deciding body
The Court upheld 2 of the 4 arguments of the Applicant and concluded that the voucher system for returning New Zealand placed an unjustifiable limit on their right to return to their own country.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Freedom of movement, Section 18(2) New Zealand Bill of Rights Act 1990;
- Right to Mobility, art 12.4, ICCPR;
- Freedom of movement, art. 13, Universal Declaration of Human Rights.
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- Proportionality
- Reasonableness
- Precautionary
Balancing techniques and principles (proportionality, reasonableness, others)
The Court gave weight to the Minister’s judgment on how the balance is struck between the rights of the individuals and the needs of society. The Court also acknowledged that there was room for the precautionary principle to operate. Citing Taylor v Newfoundland and Labrador 2020 NLSC 125, the Court defined the principle of precaution as “acting to prevent anticipated harm before confirmatory evidence was available”. In the context of COVID-19, it means that “reasonable efforts to reduce risk need not await scientific certainty”.
Citing Spencer v Canada, the Court noted that application of precautionary principle was a “foundational approach to decision-making under uncertainty, that points to the importance of acting on the best available information to protect the health” of New Zealanders. The Court acknowledged that extraordinary measures would be necessary keeping in view the novelty of the virus and complexity of the public health decision-making.
The Court, however, elaborated that the Crown retained the burden of showing that any restrictions of the right to enter are reasonable and demonstrably justified. The Court acknowledged its responsibility of determining that any limiting measures are reasonable and justified. The Court cited the cases Make it 16 Inc v Attorney-General [2021] NZCA 681 and Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291 to illustrate this balancing approach. As illustrated in Hansen v R [2007] NZSC 7, it is important to strike a balance between the rights of individuals and the needs of society depending on the circumstances.
