Advice on the Managed Isolation Allocation System in regard to offshore seafarers

Summary

The complainants are New Zealand seafarers who work offshore on foreign-flagged ships (offshore seafarers). [1] They need to fly home to New Zealand at the end of each tour, when crew change occurs. From 3 November 2020 to 5 March 2022, the complainants needed a voucher for a space in Managed Isolation and Quarantine (MIQ) in order to re-enter New Zealand.

While there was a specific offline maritime allocation in MIQ for maritime arrivals and crew changeovers at New Zealand ports, offshore seafarers, such as the complainants, could not access this. Instead, they had to book a voucher using the online part of the Managed Isolation Allocation System (MIAS), which was difficult due to the nature of seafaring work.

In March 2021, following the Minister of Transport’s announcement earlier that month that he would review the position of offshore seafarers, the Ministry of Business, Innovation and Employment (MBIE) advised the Minister for COVID-19 Response (the Minister) that the settings for offshore seafarers were fit for purpose, and recommended against creating a specific offline allocation for them. The Minister agreed with this advice and recommendation. Consequently, offshore seafarers had to continue to use the online allocation system.

Having considered the complaints made to me, I decided to investigate the reasonableness of the advice that MBIE tendered to the Minister with respect to the possible creation of an offline allocation for offshore seafarers. I do not have jurisdiction under the Ombudsmen Act 1975 (OA) to investigate decisions of Ministers of the Crown.

I acknowledge at the outset that a number of difficult decisions had to be made about the response by New Zealand to the COVID-19 pandemic, including in relation to 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 the Minister made the final decision to not have an offline allocation for offshore seafarers.

However, it is apparent that MIQ, and the operation of MIAS in particular, caused immense stress and frustration for offshore seafarers trying to return to New Zealand at the end of their tours. In addition to the two complaints that are the subject of this investigation, I also received several other complaints relating to the position of offshore seafarers. 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 be unjustifiably infringed in some instances. MBIE has told me it has accepted this finding.

I acknowledge that in matters of policy, opinions can differ. However, an Ombudsman’s expectation is that in providing advice to Ministers on policy matters, 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. It is the role of the Ombudsman to investigate and form their own opinion as to whether there have been unfair administrative acts or omissions of public sector agencies which impact on people. In my view, an Ombudsman’s opinion will always be useful for policy advisors and makers.

In this case, I have formed the opinion that MBIE acted unreasonably in providing the advice that it did to the Minister in respect of offshore seafarers, because the advice:

• did not sufficiently address the need for international cooperation for global trade, relevant International Maritime Organization (IMO) and United Nations General Assembly resolutions, and the designation of seafarers as key workers;
• did not specifically consider New Zealand Bill of Rights Act 1990 (NZBORA) implications for offshore seafarers as a particular class of New Zealanders;
• did not sufficiently address the limitations of the emergency allocation process as a solution for offshore seafarers; and
• drew an inappropriate comparison to other fly in, fly out workers.

As discussed in my self-initiated broader investigation into MBIE’s administration of MIAS, [4] 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 options for doing 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. Offshore seafarers are an example of a class of New Zealanders who suffered from a lack of consideration of individual circumstances and prioritisation in MIAS. 

I recommend that, if the need to use the MIQ system arises again, MBIE provide fresh advice to the Minister on offshore seafarers in a manner that addresses the deficiencies I have identified. I also recommend that MBIE consider apologising to the complainants.

Footnotes

1. For clarity, I use the term offshore seafarers throughout this opinion to mean New Zealanders working overseas on foreign-flagged ships. Different considerations apply in respect of New Zealand-flagged ships, and seafarers working in New Zealand. Return to text
2. MBIE has advised me that MIQ was responsible for stopping more than 4,600 cases of COVID-19 at the border. Return to text
3. Grounded Kiwis Group Inc v Minister of Health and Ors [2022] NZHC 832. Return to text
4. See www.ombudsman.parliament.nz/resources/chief-ombudsmans-opinion-under-ombudsmen-act. Return to text