Auckland businessman Murray Bolton says he is relieved that he will be able to self-isolate safely at home on returning from overseas, following a successful judicial review of officials’ decision-making in his case, and now wants to help other New Zealanders who do not have the financial resources to stand up for their human rights in a “broken system”.

MBIE informed Mr Bolton today that it had reconsidered its initial rejection of his application to self-isolate at home, following the High Court’s decision last week that officials had erred in law and failed to take into account the New Zealand Bill of Rights Act, among other factors.

“MBIE only changed its mind in my case because I had the time and the resources to fight for my rights in court,” Mr Bolton said. “That’s great for me, but most Kiwis don’t have that level of privilege. Whether they are trying to get home to be reunited with their families or travelling for business opportunities that are critical to New Zealand’s post-pandemic economic recovery, they shouldn’t have to lawyer up to get a fair hearing from officials.”

“There are currently 723 COVID-positive Aucklanders self-isolating at home who caught the virus in the community here, in New Zealand,” Mr Bolton said. “Yet thousands of Kiwis who are double-vaccinated and COVID-free are told they can’t come home from overseas until they literally win a lottery, for one of a handful of rooms in an MIQ facility guarded by soldiers.”

Mr Bolton said that although his legal action was costly and should have been unnecessary, he now hoped that the significant investment would help others.

“It’s important this precedent about New Zealanders’ rights isn’t swept under the carpet,” he said. “I have instructed my lawyers to share the legal research which supported and informed our successful judicial review application with the lawyers for Grounded Kiwis, who are challenging the MIQ system in its current form on behalf of New Zealanders stranded overseas.”

“In the media every day we see expectant mothers separated from their partners, parents separated from children, and people unable to be with dying family members. I was overwhelmed by the stories I heard after my case was decided last week.”

Mr Bolton said the research would also be made available to any New Zealanders seeking to travel overseas for business, and that he would be prepared to consider funding legal advice in appropriate cases where his lawyers assessed there could be a reasonable chance of success.

Business applicants for self-isolation who want the research in order to progress their own legal challenges, or wish to discuss their circumstances, can contact Jacque Lethbridge, Partner at Martelli McKegg.

BACKGROUND

Mr Bolton is travelling with his partner to the United States to participate in a board meeting for Xplor, a company with 180 New Zealand employees that contributes tens of millions of dollars a year to the local economy, and is seeking to list publicly in the United States. They are travelling by private jet to avoid commercial airlines and will isolate at his Auckland home on return. As noted by the Court, Mr Bolton’s presence at this meeting has significant benefits for New Zealand.

Mr Bolton had previously sought an exemption from MIQ to be able to self-isolate at home, with strict monitoring in place, after failing to secure a ballot place in the government’s limited pilot scheme for self-isolation for business travelers. He outlined stringent monitoring and safety conditions, as well as the potential health risks of staying in MIQ given his age. MBIE rejected the application.

Last week the High Court ordered MBIE to reconsider Mr Bolton’s application to self-isolate at his home after returning from his proposed business trip to the United States. The Court found that MBIE had erred in law when it initially rejected his application, because officials failed to adequately consider Mr Bolton’s right to freedom of movement (including the freedom as a citizen to enter New Zealand) under the Bill of Rights Act, the economic benefits of his business trip, and the risk of him catching Covid in MIQ as opposed to his ability to isolate safely at home.

The Court noted in its decision that “the objective of the IQ [Isolation-Quarantine] Order will be met if the decision maker can be satisfied that the needs of the applicant (not restricted to health needs) can be met by the applicant self-isolating at home in a way and on conditions that prevent and limit the risk of the outbreak or spread of COVID-19.”

The Court ordered that MBIE reconsider the application, and that in doing so officials were required to consider, among other relevant considerations:

• the need for Mr Bolton to attend the board meeting in Boston;
• the need of the applicants to enjoy rights conferred by the New Zealand Bill of Rights Act 1990, including the right to freedom of movement and as citizens to enter New Zealand without unreasonable limitation; and
• the need of the applicants to avoid the risk of contracting COVID-19 at an MIQ facility, including in view of any characteristics that may make them especially vulnerable to COVID-19, including age.

MBIE was required to balance those considerations against the degree of risk to the community of further spread of COVID-19 involved in the applicants’ isolating or quarantining at a place other than an MIQ facility taking into account:

• the precautions the applicants may propose to take or other conditions that may be imposed on them;
• their vaccination status; and
• the prevailing circumstances within the community at the present time.

The full decision of the High Court can be read here: https://www.courtsofnz.govt.nz/assets/Uploads/2021-NZHC-2897.pdf

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