A legal academic says the Ministry of Health appears unsure if a "blanket ban" on compassionate exemptions from managed isolation is legal.
A High Court Judge questioned the legality of the ban after a returning New Zealander was denied the chance to say goodbye to his dying father, and mounted a legal challenge.
On 16 June, the government temporarily suspended all compassionate exemptions, meaning anyone in managed isolation or quarantine would not be allowed out for any "compassionate" reason, such as a relative being close to death.
People could be moved for other reasons, including medical issues.
Graeme Hattie was returning to New Zealand to see his ill father, when four days into his managed isolation, was told his dad had only a short time to live. He applied for early release on compassionate grounds and was rejected twice.
He mounted a legal challenge but before it could be heard his father died.
However, it did result in a judge's minute.
Justice Muir noted it was his provisional view that the blanket ban on compassionate leave appeared "inconsistent" with the Covid-19 Public Health Response (Air Border) Order 2020, and there was an urgent need for the Director-General of Health to review the terms of the blanket ban.
A statement from the Ministry of Health said it did in fact individually consider the man's application, and did not use the suspension as the reason for declining Hattie being allowed to visit his father.
"The Ministry acknowledges the Hattie family's loss at this very sad time. We respect this week's remarks from the court. The Ministry did actively consider Hattie's application and did not rely on the suspension when considering the request from his legal team," a spokesperson said.
"This period represents a temporary suspension of compassionate exemptions while appropriate policy and processes are worked through."
'A bit of uncertainty'
Otago University senior law lecturer Simon Connell said the Ministry of Health's statement appeared to show it was not very confident that total ban is lawful.
"If they thought that they were on solid ground legally, they would point to [the suspension] as their basis for declining the request. But that's not what they did - they said they 'actively considered' the application, that is they made an individual assessment, which is what they ought to be doing in all cases," Connell said.
"As the judge describes it, the purportedly blanket suspension appears not to be effective in law.
"You can't have both - it can't be the case that there's a blanket ban, that these things have been suspended... but at the same time, individual cases are getting individual consideration. Those two things just don't work at the same time."
Connell said there was some room for argument for what would define an "exceptional circumstance", as it is worded in the legislation.
"The original order specifically mentions compassionate grounds, and the more recent one only refers to exceptional circumstances. So there is a bit of uncertainty as to what qualifies as an exceptional reason. But I think there is a good case that visiting a dying relative, when things are very time-sensitive, is the sort of exceptional reason that might justify an exemption."