Thread by @drdeanknight

Grounded Kiwis judicial review challenge to New Zealand's managed isolation and quarantine regime -- arguing that it unjustifiably breaches the right to return in s18(2) of the Bill of Rights Act -- is being heard by the High Court today.

I have been granted permission to trainspot and tweet (subject to a 10min delay on reports and reckons). 🤓

I guess we need a hashtag. Perhaps #MIQchallenge?

I have a short piece coming out very shortly on @NewsroomNZ, explaining the challenge and sketching the arguments. I'll link to that when it's live.

I’ll be tweeting from my cottage — accompanied by my able assistant, Kārikihina 🦁 — due to the occupation of Parliament and Pipitea. The uni has warned it’s not safe to enter OGB grounds and has directed us to work from home. #MIQchallenge

About to kick off. See you in 10min... #lag #MIQchallenge

I preview the challenge and sketch the arguments in this note on @NewsroomNZ. #MIQchallenge

newsroom.co.nz/ideasroom/cour…

Justice Mallon is presiding. Opens with a brief mihi and addresses preliminary housekeeping matters. #MIQchallenge

As an aside, counsel has to ask for permission for GK rep sitting in gallery in court to take notes. Bizarre rule and should be abolished. #MIQchallenge

Radich QC is appearing for GK. Describes the case as big constitutional issue. Right of return is a "foundational" right; an "ultimate right" from which others flow. #MIQchallenge

R: Target of GK is Sep to Dec 2021, in order to make the challenge feasible. #MIQchallenge

Hmm. Curious choice. In other words, this is not intended as a fully retrospective appraisal of MIQ over its lifetime. Evidence only relates to last third of last year, when there was much ebb-and-flow. I'll need to reflect on implications of that. #MIQchallenge

R: Folk abroad are "stranded" - not forever but for months. Suggests 3 months is a tipping more. Longer is unjustified. #MIQchallenge

R: Govt has wrongly adopted a "one size fits all" approach. #MIQchallenge

R: The allocation lottery is akin to "the golden ticket from Charlie and the Chocolate Factory" #MIQchallenge

Counsel is locating the right of return in context of other rights. Running through things like right to health and even a nod to JS Mill etc. #MIQchallenge

Fitzgerald! (The 2021 one). #MIQchallenge

R: GK case is closer to Fitzgerald than other cases that involve section 5.

Hmmm. Implication seems to be that right is almost non-derogable. #MIQchallenge

R: The government should have strived week-by-week to have less rights limiting options. #MIQchallenge

^ This seems to be a key point, ie govt should have operated a contemporaneous/individualised risk assessment in the MIQ gateway. For myself, I struggle to see how this was feasible during pandemic conditions, where precautionary principle must surely apply. #MIQchallenge

Hansen! #bingo #MIQchallenge

And "BORA". #rollseyes #MIQchallenge

R: This case is about “putting a stake in the ground” and being clear about the importance of the right and making sure it doesn’t happen again. Despite the settings changing and becoming easier, these issues are still important. #MIQchallenge

R: Omicron is not factored into challenge, because there is no evidence on it (note time period for challenge). #MIQchallenge

R: 10 days in MIQ impairs right to return more than reasonably necessary. #MIQchallenge

R: Runs through preconditions to making C19 orders in C19 Public Health Response Act 2020 - sections 8, 9 etc. Notes min must be satisfied that not inconsistent with Bill of Rights Act (s 9(1)(ba)), which was added on 6 August 2021. #MIQchallenge

Mallon: para (ba) added later?
R: Yes, in August. Worrying it wasn’t there.
#MIQchallenge

Hmm. IMV, not at all. s13(2) imposes substantive reqt of consistency. No doubt govt translates that into a procedural obligation to be so satisfied – it’s hard wired even when not spelt out. #redherring #MIQchallenge

R runs through key isolation and quarantine order that is subject of to challenge. #MIQchallenge

legislation.govt.nz/regulation/pub…

R: Explanation of first-come-first-served. “Trauma” inducing. Sitting up all night not knowing when allocations would become available. #MIQchallenge

R: Outlines circumstances of some folk who missed out. #MIQchallenge

R describes random allocation system, and parallel offline system for exceptions etc. #MIQchallenge

Note, according to R, extent of delay for applicants during lottery system as instanced in GK evidence is contested by Crown. #MIQchallenge

Prof Geddis! #bingo #MIQchallenge

Just as my fine colleague's name is mentioned, the AVL freezes and breaks... 😬 #MIQchallenge

It's time for a cuppa. ☕️ #MIQchallenge

Sadly, there is no flat white from our neighbourly @vicbks - as you will see, the occupation of Parliament and Pipitea means they have had to temporarily close. 😢

https://twitter.com/vicbks/status/1492642117352828928

Instead, it's home brew, today in one of my fav cups - one inherited from my late grandfather, Pop on my mother's side, who was a Methodist minister. ❤️

Hearing continues.

R seems to be arguing for hard look, due to fundamental nature of right, lack of demo oversight, and gravity of effect on individuals.

Hmmmm.

#MIQchallenge

~ Interruption in transmission ~

A heads up that I have to step out for a bit for our faculty-wide te Reo lessons that start today. Looking forward to a couple of months of acute practice with the language - a refresher from my MAOR101 course a few years ago. #MIQchallenge

Kia ora, I'm back.

Just on the way out, R for GK quoted Cooke J from Four Aviation Security Service Employees that: “Deference isn’t of much assistance here”. #MIQchallenge

Ofc, I can't let that go.

Even in that case, Cooke J applied deference in the form of recognising the "limits of the forensic process" and weight needing to be given to the views of experts.

#MIQchallenge

And, even though the assessment of justified limits is a matter of law for the court, I don't think that means deference or judicial humility shouldn't ever be applied - in whatever doctrinal form that takes and to whatever approriate degree. #MIQchallenge

I'll need to catch up properly during the luncheon adjournment. But it's sounds like R for GK is doing a deep dive into the evidence about the random allocation system -- the Crown has taken issue which the impression of inferences drawn from the evidence.

#MIQchallenge

Seems we've lost the AVL feed? #MIQchallenge

I've been told that it's a server issue - affected service nationwide. #earlylunchforus #MIQchallenge

Forgive me some brief top-of-minds reflections on the morning arguments. So far, the argument has been largely scene setting - seeking to elevate the importance of the right of return and to reinforce the pain caused by systems of allocation with winners and losers. #MIQchallenge

We haven't really got to the core of the section 5 justified limits calculus, other than a broad allegation that the govt should have done better and been more responsive with improvements or individualised assessments. #MIQchallenge

Perhaps that's not unexpected, as if a right is prima facie limited, then the burden shifts to govt to justify those limits. Yet, there's been little acknowledgement from GK of the pandemic environment and implications for MIQ in terms of what is feasible and safe. #MIQchallenge

But I might have expected deeper engagement with some of layers sketched in my preview note. Hard to see how the judge can appraise whether MIQ is a justified limit on the right of return without grappling carefully with those thorny issues. #MIQchallenge
newsroom.co.nz/ideasroom/cour…

Update: I think the AVL is still down. I'm WFH so I'm unable to tweet more until that's back up. I'm not sure if any of the few who are in the gallery also had permission to tweet? #MIQchallenge

I have diverted to @SuperBowl in the meantime. But I'm at a loss about who to support -- because my @Seahawks sadly didn't make it into the playoffs this year... #MIQchallenge

Looks like I am supporting the @Bengals -- but there is a risk that, when the AVL feed finally resumes, I might end up yelling "touchdown" at every utterance of "deference"... 😳 #MIQchallenge

@Bengals I'm back - this time via the dreaded Teams...

I wonder what we missed?

#MIQchallenge

It looks like we might have a temp fix, perhaps a camera (on a laptop) from the back of the courtroom? #MIQchallenge

van Dam (I think) for GK at the moment.

#MIQchallenge

Curious that GK is pressing hard against the mid Oct (?) timeframe, when Delta was not under control in Auck and relative risk between locals and arrivals was shifting dramatically (although I haven't been in the room for the duration). #MIQchallenge

Sure that is when the justification calculus is probably most thorny. But that snapshot in time doesn’t seem to line up with GK’s comprehensive campaign against MIQ, which was ran for months prior? #MIQchallenge

On this point, I think I saw govt papers from that period that cautioned the rights justification for MIQ would dissipate if conditions changed too much. #MIQchallenge

Remember too, the govt had been working on phasing out MIQ since at least the Skegg reopening report in Aug 21 - it was the Delta outbreak that threw a spanner in the works.
#MIQchallenge

This makes me wonder what the declaratory/vindication purpose of the claim is, given MIQ is shortly to be phased out anyways? At best, it seems to now be a complaint that the govt didn't phase it out quickly enough? That's a very different claim than the design etc. #MIQchallenge

GK argues govt has adopted an "all or nothing" approach and should have "conscientiously considered" other options - incl self-isolation, RATs, etc. #MIQchallenge

GK refers to internal health advice re justification running out, after when Delta had hit auckland (mentioned by me earlier)
Judge: Quite late in the timeframe though (Nov 21) ?
#MIQchallenge

Judge: So, you’re saying this advice should have been provided earlier?
R for GK: Yes. And it wasn’t followed, because changes to border settings weren’t expedited.
#MIQchallenge

GK refers to Baker/Wilson article that intl folk shld be treated same as local Akers (risk greater in spmkt article - I've tweeted about it before).
Judge: But then border still applied around Auckland and wasn’t removed until 15 Dec (although still some movement)? #MIQchallenge

^ This submission misses the point, imv. The weight of Baker/Wilson article, if you read closely, was reporting stats and arguing for a *harder* border around Auckland because of risk profiles. Elimination posture still applied outside Auckland. #MIQchallenge

A lot of the late afternoon's submissions seems to be an echo of Geddis' op-ed in late October, that MIQ had basically run its course and its rights justification was soon to expire. (I think that's the right one.) #MIQchallenge

thespinoff.co.nz/politics/29-10…

Curious temporal shift here, I think, re justification expiring? Remember, there was less pressure on the allocation system after the Geddis article, because the phased opening of border was signalled (to the point that there was a couple undersubscribed I think)? #MIQchallenge

GK argue group allocation criteria is not prescribed by law [because lack of rules/criteria spelt out I think?]
Judge: But doesn’t it depend on reasons why people are coming to NZ [ie it's a discretion]?
#MIQchallenge

GK: Group allocation takes away spots from citizens.
Judge: But there is criteria: group/nat benefit? Is that not reasonable? Why do you say it’s not justified?
GK: Until Nov 21, group allocation not prescribed by law – “no identifiable mechanism” so providing.
#MIQchallenge

R for GK attacks the random allocation system (lottery, as he describes it). Takes issue with lack of memory in system. Crown hasn’t discharged its obligation to show there were no alternatives, less rights limiting options so people didn’t keep missing out. #MIQchallenge

R for GK turns to emergency exemption process/criteria and challenges some applicants faced relying on it.
#MIQchallenge

Now relief. R says Crown has asked that any questions of relief be reserved. R says unnecessary as GK only seeking declarations (I may have missed it but that seems to suggest GK have abandoned attempt to quash orders?) Refers to Borrowdale re importance of declns #MIQchallenge

Please forgive a late postscript but the relief question has been bugging me.

GK are now only seeking declaratory relief, to “vindicate” the right. Yet, stepping back, it’s difficult to see the utility that would serve — bc of the nature of the question. #MIQchallenge

The court is being invited to find that the right has been unjustifiably limited — at certain points in time, ie historic snapshots. Yet the justification calculus is incredibly sensitive to time and conditions, as risk and strategy fluctuates. #MIQchallenge

If the argument is, as it seems to be, the govt didn’t phase out MIQ quickly enough in Oct due to rise in local risk, what’s the Ct to say if it thinks MIQ was justified before that and/or was later in Jan with omicron? #MIQchallenge

The failure to prosecute the claim when the legal settings were ripe creates a gordian knot that may be impossible to unravel through judicial review. #MIQchallenge

We’re back trainspotting today - for Grounded Kiwis challenge to MIQ. #MIQchallenge

Boadita-Cormican for the govt today. #MIQchallenge

B-C starts with an acknowledgement to those that have provided evidence; govt not denying experience of people who are overseas, the impact that they speak of and sacrifice they made. #MIQchallenge

B-C: Govt in the hearing is discharging its duty to justify any limitation of rights -- and that shouldn't be taken as taking away from earlier acknowledgement of burdens folk have suffered. #MIQchallenge

B-C: Case is judicial review, taken under urgency -- not a Bill of Rights claim for compensation etc where there would be more extensive evidence and cross-examination etc. #MIQchallenge

Deference! 🍿 #MIQchallenge

C-B: It’s not trusting govt made right call. Some leeway or latitude needs to be given to govt during pandemic, when developing policy iteratively in changing conditions. #MIQchallenge

J: Is that really deference? Or more about acknowledging circumstances?
C-B: It’s about remembering the context.
#MIQchallenge

C-B: Hard choices had to be made in circumstances. Govt made the choice to prioritise life and health. We don’t need a bi-focal lense - we need a wide angle lens. Govt had to look at the people in NZ and what would have the least impact on the lives of people in NZ. #MIQchallenge

C-B: Pushes back against allegation that govt was complacent or blaise about rights of citizens abroad or that it was a blindspot. Those abroad have been at forefront of MIQ system.
#MIQchallenge

C-B: Govt had to grapple with tension between s 18(2) right and managing finite capacity of MIQ. But there were shifting sands. This wasn’t a pandemic with a clear pathway ahead.
#MIQchallenge

C-B: This was not a case of "set and forget", as claimed by GK. Head of MIQ meeting regularly (weekly, often daily) with minister, PM and Cab on design and operation etc. Deep attention to MIQ and right.
#MIQchallenge

C-B makes strong defence of elimination strategy and zero risk tolerance that applied for much of time.
#MIQchallenge

Affidavit from Hipkins: Min considered whether measures were reasonable/proportionate and was satisfied they were. Measures were focused on public health measures to protect health of all people of NZ esp significant and potentially irreversible impacts on health. #MIQchallenge

Minister: Also concerns about esp vulnerable people in NZ, incl Māori and Pasifika people. #MIQchallenge

Interesting exchange about relative stringency of border measures. Court reluctant to make much of it without direct evidence.
#MIQchallenge

C-B: “Hard choices” needed to be made when allocating spaces. System was "constantly iterating" to enable people to return “but it is a system with limits”.
#MIQchallenge

Also observation that govt was mindful that Afghani refugees (potentially up to 1,000) may have needed places.
#MIQchallenge

C-B rejects GK metaphor of bi-focal lens. Says public health lens is a rights-centric lens. You have to be alive and well to exercise human rights. s18(2) right goes hand-and-hand with rights to life and health. They are not in competition. #MIQchallenge

C-B: Returning NZrs benefit from good health outcomes in NZ. #MIQchallenge

C-B: Switching away from elimination happened very quickly -- and policy shifts happened quite quickly in response. Precautionary approach was justified. #MIQchallenge

C-B: The potential consequence of getting the balance wrong were so severe that a precautionary approach needed to be taken.
#MIQchallenge

C-B: Rejected 3 months as tipping point for unjustified limit. There is no bright line. Proportionality dynamic.
#MIQchallenge

Butler & Butler text cited. In times of a pandemic, limitations on s 18(2) can be justified. This limitation is not something novel (and point written pre-Covid).
#MIQchallenge

Judge: It is a given that a pandemic is a justification for a limit. But they still have to be reasonable.
C-B: Yes, what the court needs to focus on is the reasonableness.
#MIQchallenge

C-B: Mentions Skegg group, established in May 2021, assessing whether elimination strategy still viable and also still the "best option" at this stage of the pandemic. Docs shows this question was essential to whether the borders reopened.
#MIQchallenge

C-B: Elimination was the objective for most of MIQ period. But always been acknowledgement that vax levels would be at such a stage that it would be safer enough to open borders because then disease would be manageable.
#MIQchallenge

C-B: Difficulty was emergence of new variants -- all about risk tolerance, moving parts, learning what the virus was doing, vaccine efficacy etc. Lots of parts at play.
#MIQchallenge

C-B: Govt acknowledges that there was "realism" about whether elimination was possible. Vaccination a key part of the strategy given elimination may not be possible.
#MIQchallenge

C-B: Once govt decided on managed quarantine (because of problems with self-iso not being sufficiently reliable), there had to be facilities – which meant limited capacity. #MIQchallenge

Important exchange followed re whether GK are challenging lack of capacity and saying more MIQ should have been built. GK clarify that not challenging overall scheme in that way. #MIQchallenge

But GK also say caveat to that: “hard decision” may have been needed (ie 3 mth tipping point etc). #MIQchallenge

Judge: Is that at the point when Aucklanders could self-isolate when they were infectious, this is the point where MIQ is no longer a justified limit?
R for GK: Yes, your honour.
#MIQchallenge

C-B: Goes through all requirements that would have to be met for an MIQ location to be acceptable (very long list, incl access to exercise areas, workforce, proximity to hospital). This is a complex task.
#MIQchallenge

System was set up under urgency. Various options for allocating limited spots were applied (airline quotas initially, then first-in-first-served, virtual lobby etc).
#MIQchallenge

C-B: Airline quotas didn’t work in terms of pre-planning.
#MIQchallenge

C-B: Capacity constraints were "real" but "overstated" by GK. There have been high demand periods and low periods. Spike in demand before Xmas eg.
#MIQchallenge

C-B: Demand outside govt control, eg Afghan refugees; Delta outbreak. Also sometimes demand was so low that there was a concern that hotels were going to pull out of MIQ. Govt was needed to keep aside places for emergency allocation.
#MIQchallenge

We broke for cuppa.

Today's cup is a cute fav that I picked up in Melbourne (I think at Market Lane Coffee?) while playing rugger at the Purchas Cup. ☕️🌈🏉

#cupsfromaroundtheworld

C-B: Continues, taking judge through various of aspects of detail about how spots were allocated, incl critical workers and offline etc, and how capacity ebbed-and-flowed.
#MIQchallenge

B-C: During relevant period (sep-dec 21?), occupancy was over 80% of NZers in MIQ over the relevant period (ie group allocation and visa holders not flooding MIQ).
#MIQchallenge

B-C: Evidence that shows there were periods when demand was less than supply. April-June (21?) (occupancy was low, for example).
#MIQchallenge

B-C: Govt has done various things to manage demand including advice not to leave NZ, fees to disincentivise short-term travel, self-isolation pilot, duration of quarantine, deferral of arrival of certain groups, etc.
#MIQchallenge

B-C: Quarantine-free travel was a genuine attempt to shift the dial. An example of "very hard choices". There aren’t simply fixes.
#MIQchallenge

Apologies, B-C* for some earlier tweets.
#MIQchallenge

Griffin takes over for govt, to address Bill of Right methodology etc.
#MIQchallenge

G: Quibbles with GK’s use of Churchill quote (“it is not enough to do our best, we must do what is required”) and implication that govt fell short by only doing its best.
#MIQchallenge

G: Must look at what is required *in law* not just required to ensure someone can return. Complex intersecting human rights framework (including public health concerns and health rights) - in the context of the s 18(2). Where do these levers pull on either side?
#MIQchallenge

G: GK are inviting a "heightened rights centric" approach, arguing citizens have right to enter country at the time of their choosing even in circumstances of a pandemic - particularly if "dead zone" (~tipping point) of 3 months is passed.
#MIQchallenge

G: How can court assess what this period should be? If impose timeframe, even with caveats, GK is saying govt gets 3 months to solve it before the system becomes unlawful. This is a very individualistic way to look at the right.
#MIQchallenge

G: The alternative advanced by govt is "community perspective", as the govt has adopted. Reasonable right to come home – but in a safe and orderly way for the protection of *all* people in this country. Not just individual but societal element (nodding to Hansen).
#MIQchallenge

G: s5 is a break on the right – exercises some control on unrestrained exercise of the right (eg, passport is eg of minimal restriction).
#MIQchallenge

G: Here we have a pandemic. Government is not "shrinking" from the need to build a system - $1billion pa - that indicates govt’s commitment to giving effect to this right.
#MIQchallenge

G: Govt has gone far as reasonably can be expected on it when it comes to s 5. What is expected of govt when public health is at risk cannot be measured by clear delineations. Need to look at particular point in time at which the particular decision is being made.
#MIQchallenge

G: Sometimes govt's hands might just be tied. That doesn't mean it leads to an unlawful outcome, eg if a new variant emerges. It is a very difficult process of assessment because there isn't a fixed model to apply at all points in time.
#MIQchallenge

G: Pandemic has seen rights of NZers both here and abroad being limited. NZers here also subject to severe restrictions (masks, movement, accessing facilities etc).
#MIQchallenge

G: To take a different approach would mean Clayton’s right. If allow unrestricted access to NZ then those returning would arrive to a country riddled with disease. All rights of domestic population would have to be ignored/overrun to give effect to s 18(2).
#MIQchallenge

G: Also, system is ending. No-one has been prevented from coming to NZ for an extreme length of time.
#MIQchallenge

G: Govt takes issue with inference re severe delays for large group of people. "Sprinkling of concerns" in affidavits, but granular details not before court - not clear IF delay has been experienced or reasons WHY or whether attributable to govt system. #MIQchallenge

G: There is an evidence gap here: ~can't, without more, infer problem at system-wide level from individual level concerns. Needs a deep dive and a big spreadsheet etc.
#MIQchallenge

G: Govt accepts s 18(2) is foundational right (because citizenship is needed to exercise certain rights). But rejects idea of setting up a hierarchy of rights in this way, particularly in a pandemic.
#MIQchallenge

G: Impt to focus on essence of right + what it seeks to protect. Refers to history of right (banishment, exile, expulsion). At no point has a NZer been denied entry provided there is space in MIQ. Right to enter is still operating but subject to capacity constraint.
#MIQchallenge

G: Not a case of NZ govt saying NZrs cannot enter. Eg, MIQ system, for the period at issue, can handle 13,500 people.
#MIQchallenge

G: Refers to, and distinguishes, Spencer case from Canada -- esp as Canada was not adopting similar measures or elimination strategy.
#MIQchallenge

And time for sandwiches.

#MIQchallenge

Also, forgive heavy reportage of recent govt argument -- but that passage was super interesting! And, as judicial review is an expression of accountability, rendering of account and justification from govt is often key. Many pieces added to the jigsaw puzzle now.

#MIQchallenge

Like, sandwiches, literally (and a cheeky banana and blueberry smoothie).

Back.
G again on Bill of Rights methodology.
#MIQchallenge

Dreaded Hansen steps! #MIQchallenge

G: Work occurs at steps 2(ii) and 2(iii) etc. #MIQchallenge

G: Minimum impairment step. Need to factor in decisions were taken quickly during pandemic. Not like the usual long policy/bureaucratic process. #MIQchallenge

G: Range of reasonable alternatives. Not looking for least rights impairing measure. Sufficient that within reasonable range. To qualify as an reasonable alternatives, other options needs to have similar efficacy. #MIQchallenge

G: Precautionary principle justifies some delay in changing settings, eg 4 weeks from when elimination was dropped to when shorter quarantine period was changed etc. #MIQchallenge

Deference again! #bingo #MIQchallenge

G: Here, some form of deference should apply is when dealing with expert public health assessment/advice on matters that are ‘shifting the dial’. #MIQchallenge

G: Refers to Taylor v Newfoundland – expert should be afforded a degree of latitude when crafting a policy response. (That’s the relative expertise foundation for deference/restraint.) #MIQchallenge

As an aside, I think the type of "deference" being advanced here is (a) Dyzenhausian deference as "respect, not submission"; and (b) operationalised consistently with Hickman's non-doctrinal form deference, ie as weight applied in the ordinary course of judging.
#MIQchallenge

G: Dispute between parties on what is the actual limiting measure. Govt says MIQ as systemic whole. GK much more granular: virtual lobby feature etc. Affects how s5 proportionality is appraised. #MIQchallenge

B-C for govt: Evidence is "limited and selective" and doesn’t support inference that tens of thousands of others have similarly suffered. Sometimes inability to return relates to personal choices. #MIQchallenge

Auld for govt on 7 day for 14 day MIQ: In order for govt to fail min impairment test, ct must be satisfied there is another model that produced similar risk reduction as elimination strategy – and factually 7 day model not as good at risk reduction as 14 day model. #MIQchallenge

A: While onus is legally on govt to prove limit is justified, there must be some [evidential] onus on GK to demonstrate that alternative - can’t just put up "strawman" options without more etc. #MIQchallenge

A: 14 days quarantine was rational and reasonable - based on 99th quartile and then WHO advice re incubation periods etc. #MIQchallenge

A: Alts to 14 day quarantine would have posed "significant risk" to elimination strategy. Small risk could have resulted in significant secondary clusters. #MIQchallenge

A: When you are talking about whether something is reasonable from Bill of Rights Act perspective, it is what is reasonable at the time. This includes vax roll out – there are factors that are relevant as to why it couldn’t be rolled out faster.#MIQchallenge

A: continues with a very detailed evidential debunking of alternatives to 14 day quarantine etc -- explaining elevated risks they present. #MIQchallenge

After coffee, Auld continues explanation of why alternatives weren't reasonably feasible in dynamic environment. #MIQchallenge

A: Explains shift from 14 days to 10 days in light of Delta. Risk tolerance increased with transition away from elimination strategy, higher vaccination rates -- balanced against social costs of capacity in MIQ. #MIQchallenge

A: Govt was entitled to move with some caution and, in any event, they moved within reasonable time. NZ was not an outlier internationally. #MIQchallenge

Little hiccup as AVL feed went down - now back up.
#MIQchallenge

B-C back for govt, addressing different international and local border settings during Delta outbreak.
#MIQchallenge

B-C: Two reasons for difference: (a) number of travellers would significantly increase, which would increase risk; (b) risk profile of international travellers seeding new cases is different from people already in NZ. #MIQchallenge

B-C: Bloomfield was concerned about significant change that might have irreversible consequences if he got it wrong, so sought independent peer review (from Hill and Blakely). #MIQchallenge

As an aside, I missed that this hearing was taking place at the same time in Courtroom 8... #MIQchallenge

stuff.co.nz/national/healt…

B-C is pointing to docs on why virtual lobby was chosen over waitlist etc. Virtual lobby meet more of the priorities that government was seeking to achieve. #MIQchallenge

Apparently one of the key documents is a table, with evaluative criteria - and a virtual lobby "got more green ticks".
#MIQchallenge

Judge asks about, I think, instances where people missed out, relative to critical workers etc (?).
B-C: Complaint is not a systems enquiry and beyond scope of proceeding.
#MIQchallenge

Exchange between B-C and Judge re relief. Govt dissuading judge from rushing into declarations, doubtful about what "yardstick" they would create, given so time-sensitive and circumstantial. Judge doesn't appear to be worried that that would be a problem.
#MIQchallenge

B-C: Final point - invoking Cooke J from Four Aviation Security Employees about the "forensic limits" facing a court on judicial review when addressing potential contest of expert evidence.
#MIQchallenge

GK makes some minor points in reply, mainly rats-and-mice.
#MIQchallenge

Decision reserved.
#MIQchallenge