OPEN LETTER to the Attorney-General, Solicitor-General, Minister of COVID-19 and Director-General of Health
Dear David, Una, Chris and Ashley,
We understand that this morning you have received correspondence from lawyer, Sue Grey, regarding a woman and her six month old baby who are being arbitrarily and unlawfully held in detention at the MS Social Hotel MIQ facility in Auckland.
They have now been detained in a room without an opening window for over 14 days.
The only place offered for “exercise” is the smokers room or an underground carpark, neither of which are safe or satisfactory for a mother and young baby.
Level 3 restrictions have meant that the mother (who had prepared enough baby food for 14 days) must now find other ways to prepare meals for her baby. Nothing is allowed to be delivered outside of Uber Eats or online shopping. There is no facility for the mother to cook or heat baby food due to it being deemed a fire risk.
They were expecting to be released from MIQ on day 14 after the woman received a negative COVID-19 result from her third test.
The woman had travel booked for herself and her baby to her home where her partner was expecting her and his son.
Inexplicably this mother received correspondence yesterday to say that they would be detained at least another 8 days (until 8 March) and she may then be released if the baby provides a negative COVID-19 test result.
No reasons were given other than that because her son turned 6 months during his stay in MIQ he was required to be tested for COVID-19 before his release. So far as we are aware this is not a legal requirement, but is the result of an arbitrary government policy.
The woman has been told that she will be arrested if she attempts to leave the hotel, and removed from her baby even though she has tested negative for COVID-19 during each of the required tests and has no sign of any illness. Please confirm if this is correct.
We are advised:
1) The woman has tested negative in her pre-departure and all three post arrival COVID-19 tests;
2) The baby was not required to have a day one or day 3 COVID-19 test because he was under six months old;
3) Neither the mother nor the baby have any symptoms of COVID-19 or any other infection;
4) Neither have been in contact with any third parties since they arrived in New Zealand over two weeks ago.
5) Nobody has explained how the baby could present any risk to the New Zealand public, or what difference him turning 6 months makes to any negligible risk that he may somehow present to the NZ public.
The unexplained policy and decision making appears to be both arbitrary and unreasonable.
6) During day 13 testing when this issue was first raised, the mother did offer that her baby could provide a saliva test. For obvious reasons she was however unwilling for him to have an invasive nasopharyngeal swab. She was told that a saliva test would not be considered for her son without any reasons being given for this apparently arbitrary decision to refuse a sensible alternative.
It appears that this mother and baby are now being arbitrarily detained as a punishment, rather than because of any real or identified risk.
The woman was not offered any legal advice and was told that she was not to contact the author of the letter advising of her ongoing detention.
Please confirm you will urgently review and address this situation with a view to releasing this woman and her six month old today, without the need for an application to court for a Writ of Habeus Corpus.
Either way, please could you urgently provide:
- a) a full explanation for the reasons for all decisions
- b) any evidence relied on by the Crown of any risk from releasing from detention this mother and her healthy baby (who turned 6 months while in quarantine) in these circumstances.
- c) A copy of any relevant legal provisions which requires babies to be invasively tested when they turn 6 months by the NZ government without the informed consent of the parent, after two weeks of quarantine, when a non-invasive alternative test (eg a saliva test) is available and the risk of COVID-19 is negligible;
- d) A copy of any relevant government policies which requires babies to be invasively tested when they turn 6 months by the NZ government without the consent of the parent, especially when a non-invasive alternative test (eg a saliva test) is available and the risk is negligible;
- e) any relevant guidance provided to your MIQ decision makers on principled public law decision making, the freedoms protected by NZBoRA , international agreement and the Nuremburg Code and rational decision making.
Please also advise what provision can be made for the woman and her baby to have some fresh air while they are waiting for their release.
Claire, Alia & Libby