The Chief Ombudsman says the Ministry of Business, Innovation and Employment acted "unreasonably" in its advice to ministers over the managed isolation and quarantine (MIQ) voucher allocation system.
"We ended up with a lottery - a system that did not fully allow for the consideration and prioritisation of individual circumstances of people trying to come home during the COVID-19 pandemic," Peter Boshier said on Monday.
Boshier said the MIQ system caused "a huge amount of stress and frustration" to New Zealanders trying to enter the country and advice given to ministers "failed to put enough emphasis on people's individual circumstances".
While the lobby and voucher system put aside spaces in MIQ for people in special circumstances, this didn't cater for many Kiwis with a "genuine or urgent need to travel, nor those experiencing delays in returning to New Zealand".
The system also failed to fully ensure there was a way for disabled people to independently apply for vouchers, Boshier said, and MBIE acted "unreasonably" by failing to undertake "an analysis under Te Tiriti o Waitangi when developing its online allocation, and by not consulting with Māori sooner".
"While ministers made the final decisions on the shape of the system, I would have expected MBIE's officials to provide free and frank, clear and sound advice and recommendations on the fairest options that considered the impact it would have on people," he said.
"This would have allowed decisions to be made, not just with reason, but with sympathy and honour."
He wants these issues addressed in the design of any future national quarantine system.
"Key decisions about the allocation system were made by government ministers and I do not have jurisdiction under the Ombudsmen Act to recommend they apologise," Boshier said.
"However, I will be following up with the complainants in this investigation to see whether they have been affected by the individual decisions made by MBIE that may be flawed, and if a personal apology from MBIE is appropriate."
Boshier didn't find MBIE acted unreasonably in its efforts to increase the capacity of MIQ, given the limitations imposed by public health settings and workforce constraints, nor the use of available capacity as some rooms had to be empty at some times for unavoidable reasons.
The Chief Ombudsman said he was sympathetic to the environment MBIE was working in as New Zealand faced an unprecedented set of circumstances and needed to act quickly to keep COVID-19 out of the country.
"I acknowledge that another type of system, which provided for consideration of individual circumstances, would have been more complex, time-consuming and costly to implement than the virtual lobby.
"But I do not consider these challenges provided sufficient rationale for MBIE not to advise and recommend to decision-makers options for such a system - the impact on people was too severe. A fundamental human right was being limited and people's lives were being significantly impacted."
The findings are similar to the judgement by the High Court earlier this year. It said the virtual lobby system didn't sufficiently allow for individual circumstances to be taken into account.
In a statement, MBIE MIQ general manager Shayne Gray said the ministry was "confident that it provided a high standard of advice to ministers on the operation of MIQ" during a challenging time.
"The need for urgent decisions resulted in an iterative policy process and traversed significantly complex issues and as such, whilst MIQ was in operation MBIE operated under a policy of constant improvement, there were several reviews of the system and MBIE feedback from several areas including the Office of the Ombudsman, users of MIAS, and more recently the findings of the Grounded Kiwis Judicial Review.
"This feedback was used throughout the lifetime of MIQ to help inform policy and improve the system – in total over 200 technology improvements were made to [Managed Isolation Allocation System]."
He acknowledged the allocation system "was not perfect" and some people weren't able to gain spots "whilst in extremely challenging circumstances".
"MBIE further acknowledges that due to the speed and urgency with which MIAS was developed meant that there was not the kind of consultation that would ordinarily have taken place when dealing with our Treaty partner/tangata whenua and specific groups, including people with disabilities.
"The lack of engagement and adequate consultation during this process was less than ideal and MBIE has since made considerable efforts to engage with iwi/Māori to ensure the system responded appropriately to their concerns, MBIE also undertook several accessibility reviews in order to improve the system for those with disabilities."
Gray said MIQwas developed "at pace" and in an "operationally complex and fast-moving environment to protect New Zealanders from a largely unknown, rapidly evolving, and deadly virus".
"MIQ enabled almost 230,000 travellers to safely return home and cared for over 5,000 community cases. It was responsible for stopping more than 4,600 cases of COVID-19 at the border – at a time where just one case entering the community could have compromised our collective efforts to eliminate the virus.
"The decision to establish MIQ was one of the hardest parts of the pandemic, but it saved tens of thousands of lives."
Gray said MBIE welcomed the Ombudsman's investigation and the recently announced Royal Commission of Inquiry into the COVID response. He said MBIE will "ensure that any further lessons learned are incorporated into this ongoing work".
