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OPINIONPoliticsApril 9, 2021

Is banning all arrivals from India, including New Zealand citizens, actually legal?

Photo: Getty
Photo: Getty

It comes down to whether such an unprecedented decision is a ‘demonstrably justified’ limit on people’s rights, explains public law expert Andrew Geddis.

The government has hit the nuclear button and announced it will prohibit all travelers from India, including New Zealand citizens and residents, from entering the country. As of Sunday, lifeboat NZ will begin leaving some of its people bobbing around in the Covid-19 sea for at least a couple of weeks, and maybe longer, with seemingly no hope of their being allowed to clamber aboard.

This is a major step for any government to take. Certainly, previous Covid-inspired limitations on entering New Zealand have heavily impacted citizens’ and residents’ ability to get back to the country. You need to have a guaranteed place in quite limited MIQ facilities; with no priority accorded to New Zealanders over, say, wiggling Australian entertainers or balding British comedians. You need to get flights that line up with any MIQ place you manage to obtain. You need to pay for a Covid test (and have it come back negative) before you can get on to that flight. Which means that for many citizens and residents the trip home has in practice become near-impossible.

But all of these measures left in place an at least theoretical right of return, in keeping with the fundamental promise of citizenship (and residency). This right is now going to be stripped from some New Zealanders, at least temporarily. Can the government actually do this? The answer, it seems to me, is probably yes … But it’s a wee bit complicated and depends very much on the facts.

Back in May 2020, as we emerged from our first big lockdown, parliament swiftly enacted the Covid-19 Public Health Response Act 2020. It placed sweeping powers with the minister of health (which actually are now being exercised by an entirely new minister, Chris Hipkins, as minister for Covid recovery, but never mind that for now). In particular, under section 11 the minister can make an order:

to require persons to refrain from taking any specified actions that contribute or are likely to contribute to the risk of the outbreak or spread of Covid-19, or require persons to take any specified actions, or comply with any specified measures, that contribute or are likely to contribute to preventing the risk of the outbreak or spread of Covid-19 … 

That language is wide enough to drive a bus through (or, rather, to tell people they must stay off buses, or planes, or anything else that might bring them into New Zealand). And what is more, a section 11 order can’t be challenged on the basis that it is inconsistent with another enactment. That means that such a ministerial order can override the guarantee in the Immigration Act 2009 that “every New Zealand citizen has, by virtue of his or her citizenship, the right to enter and be in New Zealand at any time”.

On its face, therefore, parliament actually has given the minister the power to tell New Zealanders that they are no longer able to come “home”, as long as doing so contributes to preventing the risk of the outbreak or spread of Covid-19. How exactly that outcome is achieved – whether by ordering airlines coming to NZ not to carry anyone who has been in India in the last 14 days, or by turning away from the border anyone who has been in India in the last 14 days, or both – remains to be seen. But the basic power, stark and rather brutal as it may seem, appears to be available.

However, here’s where things get a wee bit complicated and fact dependent. You see, section 11 orders are subject to a couple of restraints, as you would hope given the vast nature of the power involved. First, they must be a “proportionate” public health response to Covid-19. And second, any order must not be inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA). For the sake of simplicity, we can treat these two restraints as saying much the same thing: you, the minister, can combat Covid-19 however you think best, but only if it is a “demonstrably justified” limit on people’s rights.

One of the NZBORA rights that the minister can only limit in demonstrably justified ways is the right to freedom of movement. In particular, the right of every New Zealand citizen to enter into New Zealand. (I realise this doesn’t cover residents, but I’ll put them to one side for the moment on the grounds that if citizens can be denied return home, they can too.) Which then raises the question; can the announced ban on citizens travelling back to New Zealand from India be demonstrably justified? If it can be, then the power is able to be legally used. But if it cannot be, then it cannot be.

This sort of assessment – is a limit on a right demonstrably justified? – is notoriously tricky and subject to all sorts of argument. On the “yes, it is” side, the restriction looks to be of a limited duration and follows an obvious spike in infected people arriving from India despite all the existing precautionary practices. On the “no, it isn’t” side, the restriction is a total abrogation of the right and we’ve weathered influxes of infection across the border before without having to take this draconian step. And then there’s probably a million different facts that just aren’t yet in the public eye, but which are relevant to the balance here.

However, perhaps the strongest evidence in favour of the limit being justifiable is that the government has been facing public health calls for quite some time to bar all travelers from high-risk countries. To its credit (in my view), it’s so far resisted these; not least because of the very real rights and law questions involved. It also is likely aware of the strong emotional belief most of us have that “our people” always ought to have a route back “home”. Which is completely fine with me – we elect people to represent us in all our multiplicity of commitments, not just to be technocrats that decide what objectively is best for us.

The fact the government is now prepared to face the potential emotional backlash involved in turning citizens away from the country’s border suggests to me that matters may really be turning pretty dire, and so a temporary removal of the right to enter is justified. Or, at least, I hope and trust that is the case. Because if the government has gotten this one wrong, it’s a betrayal of everything that citizenship is meant to promise.

In the latest episode of When the Facts Change, Bernard Hickey talks to economists Ganesh Nana and Craig Renney about global capitalism’s ‘doom loop’ and how addressing inequality and improving productivity can help stop it. Subscribe and listen on Apple Podcasts, Spotify or your favourite podcast provider.

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