New Zealand’s pandemic border fortress: the community’s health and wellbeing versus citizens’ right to return

Aotearoa New Zealand’s elimination strategy was one of the international successes of the first two years of the COVID-19 pandemic. The virus was, by-and-large, kept at bay for much of that time. A strict “stamp it out, keep it out” approach kept cases numbers and deaths at comparatively very low levels and allowed the country to enjoy extended periods without any virus in the community. Many factors contributed to these extraordinary health outcomes, including: a strict nation-wide lockdown of 7 and a half weeks in the early months; similar periodic regional lockdowns in later stages (including the largest city, Auckland, for over three months in one instance); careful ongoing surveillance and contact tracing; and aggressive tailored measures to isolate and stamp out any community cases that appeared. Generous public support for the government’s actions and high levels of compliance with health measures were also crucial. The question – at law and in public discourse – was whether that border restriction was justified to protect the health and wellbeing of the community within New Zealand. Judicial review proceedings brought by a campaign group of New Zealand diaspora, Grounded Kiwis, eventually lead to that question being decided by the High Court in 'Grounded Kiwis Group Inc v Minister of Health'. Mallon J’s assessment of justifiability of the regime was mixed. In this note we explain the nature of this human rights challenge and the judge’s appraisal of the border quarantine regime. We then offer some reflections on the ruling and the judge’s methodology – especially her analysis of alternative means of allocating scarce spaces in quarantine.