If inflation is dead, why are we at the wake? Because we’re celebrating! Getty Images

OPINIONPoliticsJune 22, 2020

One problem with the compassionate leave ban: it’s quite possibly not legal

Contributing writer

If inflation is dead, why are we at the wake? Because we’re celebrating! Getty Images

While the announcement that nobody in managed isolation will be allowed out early on compassionate grounds might sound reassuring, its legal basis appears extremely shaky, writes law professor Andrew Geddis.

As recounted by The Spinoff’s own Justin Giovannetti, there’s no doubt that last week’s Covid-19 traipsing travellers omnishambles caught the government unawares. Indeed, I think it revealed a perhaps unconscious complacency, one shared by the general public, that we’d basically got the virus well and truly licked.

Sure, overseas holidays remain off the cards for the foreseeable. And some sectors of our economy are going to be completely ravaged. However, safe behind our oceanic moat, we can pretty much get back to living like we are used to. Rugby games. Social brunches. Tinder hookups. Team five million, for the win!

Which is why the realisation that a return of Covid-19 – and its associated level three or four lockdown rules – is but a wrongly released coughing traveller away came as such a brutal shock. And the revelation that even St Ashley Bloomfield is a man capable of error, presiding as he does over processes that are prone to failure, reminded us of how tenuous our current situation still is. We’d put it out of our minds that, to steal a phrase from the IRA, the virus only has to be lucky once while we have to be lucky always.

That shock generated an immediate response. In came a new minister, Megan Woods, along with the army to oversee the isolation procedures. No-one will now be released after 14 days of isolation without a negative Covid-19 test. And all applications for early compassionate release from managed isolation will be refused, at least until the system can be rebooted to allow for it.

All of which makes sense from a political optics and general policy standpoint. The government’s hard-won electoral credit for competent management is on the line here. And while robust border isolation measures can never be enough – remember, the virus only has to get lucky once – they are a critical element of our ongoing Covid-19 response.

The Ellerslie Novotel hotel, from which two women in managed isolation were given leave to drive to Wellington on compassionate grounds. (Photo by Phil Walter/Getty Images)

But, you just knew there’d be a but. From a legal standpoint, the halt to all compassionate exemptions from managed isolation looks decidedly dodgy to me. Here’s why.

The controls on those entering New Zealand from overseas are contained in a Health Act notice promulgated by Bloomfield on April 9. To simplify, it says that everyone (apart from air crew) coming into the country must be isolated for at least 14 days – and up to 28 days if the director general is not satisfied that they meet “low risk indicators”. This last requirement, as I explained to RNZ, empowers Bloomfield to demand that people take Covid-19 tests; unless you pass them, he can make you stay in isolation for another fortnight.

However, the Health Act notice also allowed for some exemptions from this 14 day isolation requirement. In particular, the notice allowed for it to be set aside on “compassionate grounds”, or in “exceptional circumstances”. And as the High Court made clear in a case called Christiansen v Director General of Health, those exemptions had to be properly applied by the director general.

Now, there’s been some misunderstanding (perhaps deliberate) as to what the High Court decided in this Christiansen case. My Otago colleague, Simon Connell, has a good explanation of what it was (and was not) all about:

… the government made some rules about self-isolation that allowed for exemptions on compassionate grounds, but applied them in a way that did not allow for exemptions on compassionate grounds. Rather than give the government another go at following their own rules, the court made the decision for them because they were running out of time. What the government did after that is on them.

But following the early release of the traipsing travellers to attend their mum’s funeral, the government now says that these exemptions will no longer apply and that everyone is going to have to do their 14 day isolation stints.

At one level, this then becomes something of a fait accompli. If the government says you have to stay in isolation for 14 days, and won’t let you out until that time is up, then that’s what is going to happen to you. What, though, if there is another Mr Christiansen out there who refuses to accept that he (or she) must miss the last few hours with their dying parent, or the funeral of some loved one? I think there’s a couple of pretty good grounds for arguing that they shouldn’t have to do so.

First of all, here’s how the decision to cancel compassionate exemptions was publicly announced:

Health minister Dr David Clark says he has required the director general of health to suspend compassionate exemptions from managed isolation, in order to ensure the system is working as intended.

It will only be reinstated once the government has confidence in the system

However, the power to grant/refuse compassionate exemptions (or even allow for such exemptions at all) doesn’t lie with the minister. Under the Health Act notice, it lies with Bloomfield. And the provision of the Health Act permitting the notice to be issued makes it clear that such powers can only be exercised by Bloomfield (or another medical officer of health).

Because, it is important to note that when it comes to the Health Act and the various powers it confers in an epidemic situation, Bloomfield is not acting as the director general of health. He’s acting as a medical officer of health. As such, it’s strongly arguable that the normal state sector rules of accountability/ministerial direction don’t apply to his functions in this regard. Indeed, this is a point that Bloomfield himself has been at pains to make clear in the past when stressing that his decisions to issue and revoke Health Act notices have been taken independently.

And as such, if Bloomfield (as a medical officer of health) has stopped applying the compassionate exemptions provisions of the Health Act notice because minister Clark “required” him to, then he is acting under dictation rather than exercising his statutory functions. And if Bloomfield hasn’t properly exercised his statutory functions, then the decision to suspend compassionate exemptions is unlawful.

So, were this decision to get challenged in a court, the government would likely have to claim that it was Bloomfield that actually made the call to end compassionate exemptions independently, and that Clark was just big noting when he said he did so. Much like Mayor Goff did in regards the decision to stop Lauren Southern and Stefan Molyneux from speaking at Auckland Council owned venues.

Health minister Dr David Clark and director general of health Dr Ashley Bloomfield at Parliament on May 13. (Photo: Mark Mitchell – Pool/Getty Images)

Which then brings us to the second, and possibly more important, potential problem for the government. You see, the power to grant compassionate exemptions has not been rescinded or removed. It’s still in the relevant Health Act order (again, see here at paras 5(g) & 5(i)).

What instead appears to have been decided is that there will be no circumstances at all in which the director general can be sure that an individual represents a relatively low risk of transmission of Covid-19, so no-one can meet the relevant criteria for compassionate release. But that decision then appears to remove a possible outcome without even considering the individual facts of each application – which is precisely what the High Court pinged the officials for in the Christiansen case.

In response, the government effectively would have to argue that the current system of permitting some compassionate releases is so unreliable that it cannot be trusted, no matter how well founded the case for its use may be. Which is not only a potentially embarrassing argument for it to have to run, but also seems overly strict in application.

After all, compare two individuals. One has come back to New Zealand from the Cook Islands (which has been declared Covid-19 free since April) to visit a dying relative and repeatedly tests negative for the virus. The other comes to New Zealand from the USA and also tests negative for the virus. Why is the first person deemed too risky to release from isolation on compassionate grounds after (say) 10 days, whereas the second automatically will meet the “low risk indicators” necessary for release after 14 days?

As such, I suspect that the government might struggle in court should another Mr Christiansen seek to challenge the decision to suspend all compassionate exemptions. Meaning that I’d expect it to move reasonably quickly to give this matter a somewhat more stable legal basis. Added to which, the Health Act notice governing those arriving into New Zealand expires at midnight on Monday, 22 June. So something will have to be done to extend it, with or without changes in place.

What that “something” then might look like, I guess we shall see this week.

Keep going!

Director-General of Health Dr Ashley Bloomfield arrives at a press conference on June 18. (Photo by Hagen Hopkins/Getty Images)

PoliticsJune 21, 2020

The week New Zealand’s border failed

Justin Giovannetti

Contributing writer

Director-General of Health Dr Ashley Bloomfield arrives at a press conference on June 18. (Photo by Hagen Hopkins/Getty Images)

Seven days ago New Zealand was basking in a Covid-free glow. But over the week, holes sprung in the managed isolation system, with a scramble to assert authority seeing the military called into an oversight role. Spinoff political editor Justin Giovannetti recounts an extraordinary few days in NZ’s Covid-19 response story.

A sense of victory spread through the sold-out crowd at Auckland’s Eden Park last Sunday, 43,000 people celebrating rugby’s return to a coronavirus-free New Zealand. Less than 48 hours later, the triumph began to unravel.

The breakdown started on Tuesday afternoon with the revelation by a nervous-looking Dr Ashley Bloomfield, the country’s chief public health officer, that two women had tested positive for Covid-19 after an early release from managed isolation at the border. The country had gone 24 days without a new case of coronavirus.

From that moment, the floodgates opened and days of bad news followed.

A steady drumbeat of stories began to emerge which showed that the border, New Zealand’s only defence from a global pandemic, was far from watertight. The narrative about the two women and how they acted following their release under a compassionate exemption also changed significantly over the coming days, causing further embarrassment for the government.

The Ellerslie Novotel quarantine hotel. Photo by Phil Walter/Getty Images

So far, no one has been sacked over the bungling which could, at worst, cost the country billions of dollars and imperil lives if the virus is reintroduced into the community. Instead, new management has been brought in at the border and it’s promised to get tough on arrivals who break the rules.

The past week has seen New Zealanders come forward through the media with stories about lax practices and failures. The pace of revelations was unrelenting and left the country’s political leadership scrambling. Compassionate exemptions at the border have now been cancelled indefinitely.

Questioned by the media, Bloomfield and the prime minister, Jacinda Ardern, then unveiled that among a group of six people released early to attend a funeral, some had run away and were still unaccounted for. More questions showed that widespread testing of those in isolation and quarantine wasn’t happening despite assurances to Ardern that it was. Then there were over a half-dozen reports from across the country that social distancing rules were being routinely flouted in facilities, including at a birthday party for an arrival supervised by the Ministry of Health.

The reliability of assurances that the border was safe was shredded within hours of the news that the two women who’d been let out on compassionate grounds had tested positive. Ardern initially blamed an “unacceptable system failure” at the border but then said she’d lost confidence in the system altogether as stories continued to emerge.

Jacinda Ardern speaks to media (Photo: Hagen Hopkins/Getty Images)

By Wednesday afternoon, the government put the deputy head of New Zealand’s military, Air Commodore Darryn Webb, in charge of the country’s border facilities. On Friday, housing minister Megan Woods – the government’s “fix-it” minister already trying to untangle the mess of KiwiBuild – was put in charge of the border facilities alongside Webb.

The two appeared at the end of the week and resolved to put an end to the bad news and bring order back to the border. “We are determined to make this work because the alternative is unthinkable,” said Woods during a press conference at the Beehive. In a gentle rebuke to those who’d bent or broken the government’s border rules, she reminded arrivals that “they have an obligation to the rest of us”.

Webb, standing beside her in his dress blues, announced that the police and military presence at the country’s 18 border facilities would be doubled. Anyone who broke the rules going forward would face fines of up to $4,000 or face six months in prison.

“Returnees are left in no doubt that individual accountability sits at the core of our collective Covid fight. People must be responsible for their own actions,” said Webb. “We didn’t require a police officer or someone in an NZDF uniform to be at every street corner during the lockdown period. Each New Zealander played their part, we’re asking the same of returnees during their stay in managed-isolation and quarantine.”

In an exchange showing how the relationship was developing between the two, Woods leaned over and asked the air commodore in a whisper whether she’d just answered a question from a journalist correctly. She seemed relieved when he whispered back that she had. The military, with its focus on following procedures carefully, had taken charge.

Eden Park’s sold out crowd on June 14 (Photo by Hannah Peters/Getty Images)

Before this week, the government was riding high in the polls and were being applauded around the world for its competent Covid-19 response. That reputation is now being tested, with around 90 days left before the general election, by the emerging story of chaotically run facilities where arrivals have abused the trust put in them.

A sense of unity and fairness held the country together during lockdown. However, the same feeling hasn’t been as present among the thousands being held in four and five-star hotels, largely in central Auckland.

Bloomfield has been challenged in his response to the two women. The chief health official, who apologised this week for being one minute late to a briefing, has consistently shown that he sees the best in people, even when that faith has later been shown to have been misplaced.

The two women flew to New Zealand from the UK on June 6. On June 13, the day before the rugby match at Eden Park, they were released under a compassionate exemption to visit a dying parent. They weren’t tested before their release.

One of the women had mild symptoms while in managed isolation. Bloomfield confirmed that the woman did not disclose them to health officials when asked explicitly about them. He said the woman had dismissed them as part of a pre-existing condition. It’s unlikely the woman would’ve been released early if she’d disclosed those symptoms, health officials have said.

The two had a plan with the government that stipulated they were to drive from Auckland to Wellington on Saturday June 13 without coming into contact with the public. No washroom or fuelling facilities were to be used, and Bloomfield confirmed the plan had been adhered to on Tuesday. The next day, after National MP Michael Woodhouse spoke in parliament of sources having told him the women had “kissed and cuddled” a friend who helped them with directions out of Wellington, he admitted that it hadn’t. He insisted there had not been kissing or cuddling, but the women had met with friends on their way out of Auckland.

Health minister David Clark (Photo: Hagen Hopkins/Getty Images)

After testing positive, the women – one in her 30s and the other in her 40s – told health officials they’d forgotten about the meeting. They said that soon after leaving their isolation facility they drove north on the nearby motorway instead of south and called friends for help with directions. Two friends drove over to them and the women had what’s been described by health officials as physical contact with the friends for five minutes.

One of the friends went to a gym class the next day. Mercifully, contact tracing of the four has so far not shown any positive cases

The account from the women has been dismissed by some, including TV presenter Hilary Barry, as difficult to believe. Barry tweeted that it seemed more likely the pair made a point to meet with the friends on their way out of Auckland and came up with a story after the fact.

Ardern and other members of her government, who at first defended the women, have been at pains to avoid criticising the pair even as their story changed. Woods again defended the women on Friday, saying it wasn’t their fault that they weren’t tested. She omitted to mention that they’d apparently withheld information about symptoms while in isolation and about the meeting with friends.

National, showing less of an inclination to trust the pair, has called for health minister, David Clark, to be sacked. “What does it take?” asked opposition leader Todd Muller in the house earlier this week. “Have you got your border under control? And the answer is no. It is shambolic. It is hopeless and the minister looks at the floor and says it’s not my problem.”

Ardern and Clark have said that they won’t seek to find who is responsible for the failures, but instead simply want to fix them. The two have overruled deputy prime minister Winston Peters, who said someone should be held responsible.

One positive outcome of the week is that the health department, at Bloomfield’s direction, tested nearly everyone being held at border facilities by Friday. The tests caught three new cases, two of which were only days from release.