By now you will be aware of Mallon J’s decision which offers:
- An unusual approach to evidential requirements and thresholds in s 5 NZBORA demonstrable justification analysis.
- Typically clear-minded and piercing analysis that draws unsurprising conclusions from orthodox law.
The important things to focus on are the:
- Parts where the Court found the MIQ system was lawful and a demonstrably justified limitation on rights.
- Parts where the Court found the MIQ system was not a demonstrably justified limitation on rights.
Yes, it is true that there are also:
- Parts where the Court found the MIQ system was not a demonstrably justified limitation on rights.
- Parts where the Court found the MIQ system was lawful and a demonstrably justified limitation on rights.
But that has to be seen in light of the fact that the measures:
- Were necessary to sustain a zero-Covid approach that materially contributed to the health and wellbeing of New Zealanders, and that almost all of them have been upheld as lawful and proportionate.
- Operated to cause anguish for New Zealand citizens and residents wishing to exercise rights guaranteed by law, and the Court took care to centre the human stories of those adversely affected.
Even though the judgment is:
- Quite long.
- Not short.
That is no excuse for people who:
- Are badly misinterpreting this decision as a panning of the entire MIQ scheme by the Court.
- Seek to obscure the fact that a central aspect of MIQ has been found to be an unjustified limitation on rights.
But no matter what sincerely held views you have about this, it is clear that the judgment is:
- Vindication of what I have been saying about MIQ all along.
- Vindication of what I have been saying about MIQ all along.
It now behoves us all to pull together as a commentariat to:
- Keep pretending we have actually read the judgment.
- Keep pretending we have actually read the judgment.
Strictly obiter 