Chief Ombudsman's final opinion on Managed Isolation Allocation System

Summary

The Ombudsman is an independent officer of Parliament warranted to investigate and form opinions on the actions and decisions of the government, and how these impact people. When Sir Guy Powles was appointed the first Ombudsman by Parliament 60 years ago, he stated:[1]

The Ombudsman is Parliament’s [person] – put there for the protection of the individual, and if you protect the individual you protect society […] I shall look for reason, justice, sympathy and honour, and if I don’t find them, then I shall report accordingly.

Sections 13 and 22 of the Ombudsmen Act 1975 (OA) provide the authority for an Ombudsman to do so, by investigating a complaint made to them or of their own motion, and reporting their opinion to the relevant agency.

I commenced this self-initiated investigation into the Ministry of Business, Innovation and Employment – Hīkina Whakatutuki (MBIE)’s role in the Managed Isolation Allocation System (MIAS) following receipt of a large number of similar complaints (over 270 altogether).

A number of common themes arose from these which informed my investigation.

I acknowledge at the outset that a number of difficult decisions had to be made about the response by Aotearoa New Zealand (New Zealand) to the COVID-19 pandemic, including in relation to Managed Isolation and Quarantine (MIQ).

I recognise the important aims of MIQ, and the vital role it played in preventing outbreaks of COVID-19 in the community.[2]

Nothing similar to the border closure and subsequent restriction on the ability of New Zealanders to enter New Zealand has ever occurred before. The general work of MBIE and the wider public service in managing New Zealand’s response to COVID-19 is commendable.

MBIE, as the lead agency for MIQ, was working in a novel and complex policy context, under time pressure, and in a high-stakes environment with limited access to reliable information and where there was necessarily a high degree of cross-agency collaboration and ministerial involvement and direction. I acknowledge, in particular, that Ministers made final decisions on the design of the system.

However, it is apparent that MIQ, and the operation of MIAS in particular, caused immense stress and frustration for tens of thousands of people seeking to enter New Zealand. I received hundreds of complaints from individuals impacted by this.

I note the High Court found in the Grounded Kiwis judicial review proceedings[3] that the MIQ allocation system operated in a way that meant New Zealanders’ right to enter their country could have been unjustifiably infringed in some instances. MBIE has told me it has accepted this finding.

As Chief Ombudsman, my jurisdiction under the OA enables me to examine the actions, omissions, decisions and recommendations MBIE made in the design and administration of this system and the advice it provided to Ministers. I decided to do this. While my investigation was self-initiated, it has focused on considering the common concerns raised by the complainants who approached me.

The Ombudsman’s investigation of an agency is particularly important in an emergency where the Executive is acting rapidly and in a way that appears to limit individual rights, as was the case here. In investigating what occurred within an agency, an Ombudsman will look for ‘reason, justice, sympathy and honour’.[4]

They carry out this function for Parliament. An Ombudsman’s expectation is that officials carefully assess the options available and the implications of these on people, and that they advise and provide recommendations to Ministers that include options that will ameliorate any unfairness on people.

In these respects the Ombudsman’s role and inquisitorial method of investigation is broader than and quite different to that of a Court.  

The introduction of Ombudsmen has had a healthy effect on decision-making in the New Zealand Government. They provide the check of independent scrutiny with full access to the relevant information and the possibility of publicity about erroneous Government decisions that affect individuals.[5]

It is the role of the Ombudsman to investigate and form their own opinion as to whether there have been unfair administrative actions or omissions of public sector agencies which impact on people. In my view, the Ombudsman’s opinion will always be useful for policy advisors and makers.  

In my opinion, on the basis of the information made available to me during this investigation, MBIE’s advice on the design and administration of MIAS failed to give sufficient emphasis to the consideration of individual circumstances and prioritisation in the following areas:

• the assessment of the options for change of the online aspect of MIAS, and the recommendation of the virtual lobby, which did not enable the consideration of individual circumstances and prioritisation;
• the offline prioritisation of spaces in MIQ, which did not encompass the situations of many people with a genuine need to travel, or make provision for New Zealanders experiencing delay in returning to New Zealand; and
• the failure to fully ensure that there was an adequate way for users with disabilities to independently access the online allocation part of MIAS.

I accept that implementing a more individualised allocation system that considered individual circumstances and prioritised would have been difficult and costly, but my view is that careful consideration of how to do so was necessary given the profound impact the system was having on people. I note the High Court also found the same from a human rights perspective.

On the basis of all the information I have considered throughout this investigation,[6] I am of the opinion that, collectively, the omissions by MBIE to give sufficient emphasis to the consideration of individual circumstances and the need for prioritisation were unreasonable.

I am further of the opinion that MBIE acted unreasonably by failing to undertake an analysis under the Treaty of Waitangi/Te Tiriti o Waitangi (Te Tiriti)[7] when developing the online allocation part of MIAS, and by not consulting with Māori sooner.

However, in my opinion MBIE did not act unreasonably with respect to:

• its efforts to increase MIQ capacity, given the limitations imposed by public health settings and workforce constraints; and
• the use of available capacity in MIQ, with rooms being empty at times for unavoidable reasons.

I recommend that MBIE address the issues I have identified in the design of any future national quarantine system. In particular, any future system needs to include careful consideration and thorough advice on the ability to properly consider individual circumstances and prioritise.

Key decisions about the allocation system were made by Ministers. I do not have jurisdiction to investigate the actions and decisions of Ministers under the OA, and therefore I cannot recommend they make an apology.

However, I have advised MBIE I will be following up with the individuals who made complaints that prompted this self-initiated investigation to identify whether they have been affected by acts, decisions, omissions or recommendations made by MBIE that may be flawed and where a personal apology from MBIE may be necessary.