In a speech yesterday, Winston Peters disclosed that the day before our Lockdown commenced the Ministry of Health proposed to Cabinet that New Zealand’s borders be closed to all travellers, including New Zealand citizens seeking to return home. That proposal, he said, received a “real strong” push from officials.
Asked about Peters claims, the Director-General of Health Ashley Bloomfield accepted that the proposal had indeed been put forward: “the MoH felt that until a ‘really secure process’ for border controls was in place around isolation or quarantine, the Government should ‘temporarily close the border’.” This proposal, however, was turned down by Cabinet.
That rejection is hardly surprising, as Henry Cooke outlines in a very good analysis both of why Cabinet said “no” and why Winston Peters has now chosen to highlight that fact. Simply put, I think there was no real way to do it lawfully.
By the time the Ministry made its pitch, New Zealand already had closed the border to non-NZ citizens and residents. That was able to be accomplished pretty easily, as I explained at the time:
Under the Immigration Act 2009, everyone who is not a New Zealand citizen requires a visa to enter and remain in New Zealand. The minister of immigration then can issue ‘immigration instructions’ to the officials whose job it is to grant visas to those wanting to enter New Zealand. And those instructions may relate to matters such as health.
Meaning that the minister first was able to instruct officials to only issue visas subject to certain conditions, such as a requirement to self-isolate for the first 14 days of a person’s stay in the country. And then, as the Covid-19 health risk worsened, he could instruct officials not to issue any more visas at all. Which in turn means that non-New Zealand citizens without a visa cannot lawfully enter the country.
That action in itself stops most non-citizens being able to get on planes to fly here; commercial carriers won’t board a passenger they know isn’t allowed entry to the country. And if any non-citizen does try to get in (by, for instance, flying here on a private jet), they can be denied entry and immediately deported.
However, as I went on to note, these actions didn’t apply to New Zealand citizens, permanent residents, residents with valid travel conditions and their immediate family. The Immigration Act, section 13, states that: “For the purposes of this Act, every New Zealand citizen has, by virtue of his or her citizenship, the right to enter and be in New Zealand at any time.” So immigration officials simply cannot ever refuse a citizen entry to their country (provided they have a valid passport on them), because citizens do not need any legal permission to do so.
And people holding resident visas also have a legal right of entry into New Zealand that can’t be removed except on certain prescribed grounds (which don’t include “maybe being infected with a disease”). As for the immediate families of such people… well, we simply haven’t so lost our sense of humanity that we’re going to lock them out of our country.
That means immigration law could not be used to effect a complete lockdown of the country’s borders. What, then, of other measures to achieve the same end? Could, for instance, the Government ban passenger aircraft from flying to the country – so that citizens would still have the legal right to enter, but no practicable means of doing so?
This gets a bit beyond my field, but it doesn’t appear so. Passenger aircraft operate under licenses issued by the NZ Government under the Civil Aviation Act 1990. These can only be revoked or suspended by the Government on limited grounds, which don’t include public health or security. So, again, there seems no lawful way for the Government to tell the airlines “you can’t bring any passengers to New Zealand anymore”.
There is then only one way that I can see that the Ministry’s proposal could have been accomplished. Under the Health Act 1956, section 70(1)(g), the Director-General of Health can “forbid persons, ships, vehicles, aircraft, animals, or things to come or be brought to any port or place in the health district from any port or place which is or is supposed to be infected with any infectious disease.” And given that COVID-19 had spread pretty much across the globe, you could argue that every port or place can be supposed to be infected with it.
The problem with using this power in this way is that it imposes a huge restriction on the right to freedom of movement guaranteed by the New Zealand Bill of Rights Act 1990, section 18(2): “Every New Zealand citizen has the right to enter New Zealand.” And so this Health Act power can only be exercised in this way if the restriction on that right is a “demonstrably justified limit” in terms of the NZBORA, section 5.
Now, of course “stopping a virus from spreading that will kill people” is a very strong reason for limiting all sorts of rights (as the Lockdown attests). But still, any means used to achieve that obviously desirable end has to be “proportionate” and the “least rights infringing” approach available to the Government.
A blanket denial of the right to travel home looks shaky on both these grounds. First of all, it would trap a lot of New Zealand citizens in places where they are far more likely to catch COVID-19 and so potentially die (think of all those folk we saw stuck on cruise ships and the like). So, not only would a border closure keep Kiwis out of their homeland, but these citizens also have a right not to be deprived of life.
And second, there’s a pretty obvious alternative available to closing the border completely; let people come back home, but quarantine them until we’re sure they are virus free. Which is, after all, what we ended up doing, with the results we see today.
Because of this, I don’t think a complete border closure could lawfully be accomplished by an order “forbid[ding] persons … to come … to any … place in [New Zealand] from any … place which is or is supposed to be infected with any infectious disease.” And I’d expect that before even proposing such a thing, the Ministry of Health would have considered the sorts of matters I’ve just discussed.
However, and rather worryingly, it seems that it didn’t. When asked about the proposal at the post-Cabinet media briefing, Ashley Bloomfield noted that it had been made from a purely public health perspective. And Jacinda Ardern backed this up, saying “Of course, the Ministry of Health wasn’t required to weigh up our obligations through law... we did have to weigh that up.”
This is flat-out wrong. As I/S has pointed out:
Firstly of course there’s s3 of the BORA, which makes it clear that the Act applies to the legislative, executive, or judicial branches of the Government of New Zealand. So if they’re not considering it in their decisions, they’re both breaking the law, and simply not doing their job properly. And that’s backed up by the Cabinet Guide - the government's guidance for doing Cabinet stuff - which has an entire section on human rights compliance in bills and Cabinet papers, which is crystal clear: “It is the responsibility of each department to make its own assessment and sign off on human rights implications in the department’s area of responsibility.”
And if you think about it, it’s clear that it must be a wrong claim. Let’s say the best “public health way” to beat the virus would be to shoot infected people and bury them in plague pits. Would we expect the Ministry of Health to blithely recommend this course of action be adopted and then leave it up to others to “weigh up our obligations through law”?
So … no. Unless the Cabinet Papers (when released) show the Ministry of Health saying something like “a complete border closure would be the very best way to keep COVID-19 out – but we realise that this probably can’t be done”, then something went very wrong in their policy development processes.
Because human rights aren’t something you think about after you’ve thought about what is the best public health approach to take. It has to be central to that question.