November 2, 2021
Almost every person wishing to enter New Zealand must secure a room in a managed isolation and quarantine (MIQ) facility, and, if they are able to do so, to be quarantined at such a facility for 14 days on arrival.
Save for special Ministerial exemptions, the only avenue for obtaining an exemption from the MIQ regime is clause 12 of the COVID-19 Public Health Response (Isolation and Quarantine) Order 2020 (IQ Order). Under clause 12, the relevant public authorities may grant an exemption from MIQ and allow a person to isolate somewhere else, such as their home.
In a recent judgment of the High Court, Justice Venning addressed the proper interpretation of clause 12 and how exemption decisions should be made. Shortland Chambers members, John Billington QC and James Little, successfully acted for the applicants in setting aside a decision by MBIE declining an application for an exemption under clause 12.
MBIE has to date been confining clause 12 exemptions to those with medical needs that cannot be met in an MIQ facility. The Court held that clause 12 has a broader scope. When making exemption decisions, MBIE is required to consider all of the relevant needs of an applicant, and then to balance those needs against the degree of risk to the community of further spread of COVID-19 involved in them isolating or quarantining at a place other than an MIQ facility. In doing so, MBIE is required to consider matters including:
The Court held that this broader interpretation of clause 12 was consistent with the text of the IQ Order, which did not confine exemptions to those with certain medical needs. It was also consistent with the purpose of the Act under which the Order was made, which referred to supporting a public health response that limited the risk of spread of COVID-19, which was proportionate, and which allowed relevant social, economic and other factors to be taken into account.
The broader interpretation was also consistent with the New Zealand Bill of Rights Act 1990. Every New Zealander has the right to enter New Zealand and to freedom of movement. Those rights may only be limited to the extent reasonably necessary. The respondents accepted that it was not reasonable or necessary to exempt only those with an urgent medical need from the requirement to quarantine at an MIQ facility.
The Court ordered the respondents to reconsider the applicants’ exemption application on the correct legal basis. The Court’s decision may be found here.