Covid-19: There's a case for launching a judicial review of the MIQ system
The MIQ system is a hotbed of complaints by so many and action by so few.
New Zealand corporations, business owners, shareholders and directors should be more than a little embarrassed by their inaction. So should most of the legal profession, academics and the Law Society.
Companies are losing money and contracts hand over fist. We read about it daily. Setting caps on the number of Kiwis allowed to enter New Zealand’s MIQ system has prevented business people from being able to leave the country. Others have staff stuck overseas.
And what have businesses done about this?
Apart from Sir Ian Taylor and his bench putting a lot of energy into Covid-19 testing and monitoring technology in support of home isolation, there’s barely a peep from anyone else. Bear in mind complaining isn’t action.
Where is the coordinated legal action from corporate New Zealand? Why have they not launched a case for a judicial review of MIQ? Where is the allegation that our government could be breaking the law in a number of areas:
Capped entry numbers
One-size fits all MIQ system with no other options for 19 months
Not adjusting to changed risks from vaccinations
Not responding fairly to emergencies and exceptional circumstances
Relying for too long on a caveat within human rights law that justifies restrictions to protect the wider population.
This is not a case against MIQ itself. It has been a necessary safety measure and will continue to be in high-risk situations. Legal action is needed to test if the use of a capped-numbers system, followed by a lottery system, has fairly balanced the rights of all citizens, against the risks.
The European Journal of International Law reported in June 2020, that the Human Rights Commission said “derogations must be limited, as much as possible in respect of their duration, geographical coverage, and material scope and all measures taken must be proportional in nature”.
The Journal went on to note “it is difficult to conceive of any circumstance where it could plausibly be said that the exigencies of the Covid-19 pandemic require a state party to interfere with the right of an individual to enter his or her own country when that individual can be screened on entry, monitored closely for 14 days after arrival and if necessary, isolated and quarantined for a period of time”.
You’d have to admit, when reading that as an ordinary person, the MIQ caps and lottery look highly dubious.
We still have three to five months of severely restricted entry at our borders. Much of the extra space from the reduced seven-day MIQ period will be used by locals with Covid-19 infections. The lottery continues with a woolly end date sometime in the first quarter of 2022, when home isolation will be “phased in”.
Big business in hiding
Business New Zealand has the financial means and the collective protection of each other to have taken legal action months ago.
Instead, we have a group in London called Grounded Kiwis who raised $72,000 in 16 hours to launch a judicial review of MIQ. It’s scheduled for January 25, in the High Court.
The situation is like a cartoon. Powerful wealthy businesses and listed companies peeking out from behind a scrum of individuals who used a Givealittle page to raise the cash for a case against the Government.
They’re even attracting better PR than the big money, waving banners on prime time British and United States television. At the recent All Blacks game in Cardiff the Welsh saw “team of 6 million, can we come home yet?” and “Score us a MIQ spot” with hashtags of Jacinda Ardern and Grounded Kiwis.
If it only costs $72,000 to take legal action, why are thousands of New Zealand businesses losing contracts and sitting timidly inside the cage?
Is it a cultural embarrassment to think we might be in breach of both our own and international human rights laws? Is it a dangerous PR game for companies to be seen fighting for liberal values? Is it because very little remedy exists even if a court found the Government was acting unlawfully? They might choose to continue to breach the law and ignore the findings.
The historical headline from Time magazine with Ardern on the cover reads “Know us by our deeds”. That feels a little haunting right now. From retirees having their pension stopped when they’re denied the right to return home, pregnant women giving birth without partners, children separated from parents and young people unable to work once foreign visas have expired; our deeds are awful.
Then we have our business community and legal profession, putting up no fight at all, despite their own plight.
Political apathy
New Zealanders find it hard to acknowledge a constitutional monarchy and one-level parliamentary system is not the most robust choice, when it comes to checks and balances. We know no different. But the political apathy of big business when they are caged in and losing opportunities is quite surprising.
Our legal fraternity would have to admit the belts and braces don’t exist in their world either. In other countries, democratic rights are protected by big law firms who are funded and operate pro-bono. The US Institute for Justice takes on cases to defend property rights, freedoms and the rule of law. Can you imagine a situation of entry caps on US citizens going untested month after month by the US legal system?
The New Zealand Institute for Justice simply doesn’t exist and we are all poorer for it.
Grounded Kiwis have offshore lawyers in their mix. They volunteered their time alongside a New Zealand QC, Paul Radich and Lucila van Dam who did the initial work pro bono.
They are not alleging MIQ itself is unlawful. The real crux of the case lies in being prevented from crossing the border and entering a MIQ room or other suitable alternative, given the risks at the time. Nineteen months fearing cracks in a tightly monitored border, versus the misery of tens of thousands of Kiwis prevented from returning, does not feel proportional.
Regardless of whether the Government changes the rules in the first quarter of next year or tomorrow, this case is of crucial importance. Without it we have no parameters for the future and no legal precedent. It would be unwise to think that history couldn’t repeat.
Janine Starks is the author of www.moneytips.nz and can be contacted at moneytips.nz@gmail.com. She is a financial commentator with expertise in banking, personal finance and funds management.