Chief Ombudsman Peter Boshier is recommending that the Ministry of Business, Innovation and Employment apologises to two seafarers over the advice it gave the COVID-19 Response Minister during the pandemic.

"In my view, common sense, consideration of the seafarers’ unique circumstances and a sense of humanity were needed in MBIE’s decision-making and subsequent advice around how the Managed Isolation Allocation System affected these men," Mr Boshier says.

"This had a direct and personal effect on both of the men at the centre of these complaints."

Mr Boshier investigated a complaint from the two seafarers who had difficulties booking places under the Managed Isolation Allocation System between November 2020 and March 2022.

They argued it was virtually impossible for them to use the online booking system because it was hard to connect to the internet while at sea, and they were unable to predict when they would reach port and need to fly home.

MBIE told the Minister that the system’s settings for offshore seafarers was fit-for-purpose and recommended against creating a specific offline allocation of places for them.

"The Minister accepted the advice and, consequently, the offshore seafarers had no choice but to continue using the online allocation system."

In releasing his findings today, Mr Boshier says he understood the MIQ allocation system had to deal with large numbers of people seeking to enter or return to New Zealand during the pandemic and that difficult decisions about priorities needed to be made.

"Even when taking these factors into account, I consider that there are legitimate concerns about the advice given by MBIE to the Minister," Mr Boshier says.

"In my view, MBIE acted unreasonably in providing this advice for a number of reasons.

"The fact offshore seafarers couldn’t access online vouchers on the same, equal basis as others, had implications for their rights under the Bill of Rights Act, in particular the right to enter New Zealand."

Mr Boshier says MBIE didn’t make those implications clear to the Minister.

"I would have expected Ministers to be advised about any specific Bill of Rights implications arising from a decision they are being asked to make.

"MBIE also failed to sufficiently address in its advice, the need for international cooperation on global trade, relevant resolutions made by the International Maritime Organisation and the United Nations General Assembly and the designation of seafarers as key workers.

"An agency is expected to present all relevant information for consideration and not rely on a Minister to request further information.

"In addition, the Ministry did not sufficiently address the limitations of the offline emergency allocation process as a solution for offshore seafarers and drew an inappropriate comparison to other fly in, fly out workers.

"Offshore seafarers were in a particularly difficult position owing to the nature of their work. People who flew in and out for land-based work did not routinely need a short-notice booking in the same way that offshore seafarers did.

"I conducted a broader investigation into the Managed Isolation Allocation System in December last year, and it is clear to me that my findings in this case reflect the views and opinion I formed in that investigation.

"I accept that implementing a more individualised allocation system would have been difficult and costly.

"But I believe MBIE’s advice could have better suggested options to accommodate individual circumstances and put the fundamental human right of everyone to come home, at the centre of its decision-making.

"It is vitally important that the decisions made and advice provided by our government agencies, especially where they involve unprecedented circumstances, always put the interests of all New Zealanders at heart."

The Chief Ombudsman’s recommendations

• While I acknowledge that MBIE did not make the decision, its advice formed the basis of the Minister’s decision against having an offline allocation for offshore seafarers, which had a direct impact on the two complainants. I therefore recommend that MBIE considers apologising to the two complainants for the deficiencies in its advice
• I recommend that, if the need to use the MIQ system arises again, MBIE provides fresh advice to the Minister on offshore seafarers in a manner that addresses the deficiencies I have identified. While significant changes have been made to MIQ, I consider it important, for any potential future closure of the borders, that the position of offshore seafarers be readdressed.

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