Both Labour and National are talking about requiring people arriving in New Zealand to pay $3,000 of the cost of the mandatory managed isolation/quarantine period. The policy has been criticised as “shameful”. There are petitions against it. I have some concerns about the politics behind the proposal, but I’m neither strongly for or against the proposal – here’s why.

First of all, let’s set out what we’re talking about here. People coming to New Zealand must go into managed isolation for two weeks. Currently, the cost is met by the government. Both Labour and National have floated the idea of making New Zealanders returning to the country contribute $3, 000 towards the cost.

Variations on the policy have been raised: perhaps it should apply only to people who left New Zealand after the lockdown period, or after the policy’s been announced. Perhaps there should be exemptions for people with limited financial means and/or those travelling for specific reasons (for example because of a bereavement). Perhaps there should be options for paying the cost off over time, not unlike the student loan scheme.

What I’m discussing here is the broad idea that, by default, returnees should contribute to the cost of managed isolation. I’m assuming that any implemented scheme probably will have some exceptions, and would be brought in by passing legislation.

 

Concerning politics

The proposal reflects the dark side of the “team of 5 million” narrative created by the government. That team - the New Zealanders who went through the lockdown - made huge sacrifices in personal liberty, and many lost jobs (and many more will do so) to achieve the precarious state of elimination in which we now find ourselves. The biggest threat to that state can be seen as returning New Zealanders bringing covid-19 back. Capitalising on that can be nasty and divisive politics. 

Gerry Brownlee justified the policy on the basis that “National won’t expect taxpayers to pay for other Kiwis returning from high-paying careers or expensive holidays in Europe”. That’s dubious politics if those sort of returnees are the exception rather than the rule. There’s also a certain irony that the sort of people taking expensive business or leisure trips at this time are stereotypical supporters of Brownlee’s party!

New Zealanders are typically proud when kiwis go overseas and succeed, and tend to get upset when they become associated with the countries in which they’ve seen success, rather than their place of birth. It hardly seems fair to now treat them as strangers or somehow a lesser category of kiwi because they didn’t happen to be in the country during lockdown.

 

And yet…

I’m a legal academic, and my social media is full of New Zealanders overseas who are discussing this issue. And yet, despite having concerns about some of the nasty politics, I don’t find myself thoroughly persuaded by the arguments being made against the fee. As I’ll discuss, I think this is because, in trying to reason by analogy (the cost is like X, so we should treat it the way we treat X), I’m not sure if I can settle which is the compelling analogy.

The “Team of Six Million: Kiwis United Against Quarantine Fees” petition helpfully collects together the main arguments I’ve seen against the proposal:

1. New Zealand has a public health system and quarantine should be funded as part of that.

2. Quarantine is for the benefit of all New Zealanders, not just those under quarantine.

3. The charging of any fee ($3000 or any other amount) affects low income New Zealanders the hardest and will provide a barrier for some people returning home from overseas.

4. Charging New Zealanders a fee to return to their country is unlawful.

5. Charging Māori a fee to return to their whenua is also a breach of Te Tiriti o Waitangi.

I’ll address them in this order.

 

1. New Zealand has a public health system and quarantine should be funded as part of that.

To break this argument down a little further: the costs are associated with a public health measure, and in New Zealand the community normally absorbs the cost of public health measures. So the community should absorb the cost in this case. 

 For those in New Zealand, COVID-19 related-care (including assessment and treatment) is generally being provided free of charge regardless of citizenship, visa status, nationality or level of medical insurance coverage. 

 There is a lot to be said for this argument. If I have to go to hospital because I have an infectious disease, and there’s a need for PPE to reduce the risk of me passing on the infection to the people treating me, I’m not charged anything extra even though my visit to the hospital is more expensive. Of course, I’m not even charged for the hospital visit at all.

 Further, the government is spending money on the “Unite against COVID-19” campaign without taxing anyone in particular. COVID-19 testing is generally free, although there may be charges for people wanting to get tested for COVID-19 because they need a negative test to satisfy another country’s rules for travelling there.

 And yet … I don’t think that the “it’s public health so it should be free” line is a knock-down argument, because there is another analogy I’d like to explore:

 

The isolation charge is a cost of travel, and the costs of travel are usually borne by the person travelling

The most obvious cost of travel when it comes to returning to New Zealand is the cost of flights themselves, which are generally borne by the traveler, even when it comes to repatriation flights. Of course, mandatory isolation is not the same as flights. It’s not something travelers choose, it’s an inconvenience to them, and it’s done for the protection of others. Something similar might be said of aviation security, which is currently primarily funded through passenger charges that are paid by airlines and effectively passed on to customers. Or the various fees that MPI charges in relation to biosecurity.

 The argument for isolation costs as a cost of travel becomes stronger the longer that the measure is necessary. If it’s seen as a temporary emergency measure, I think it’s harder to justify imposing the cost on travelers. However, it’s possible that managed isolation is going to be around for a while, either because covid-19 is around for a while, because of future pandemics, or because we re-think international travel. If that’s the case, then I think the argument that this is a cost of travel gets stronger.

 Back to the petition:

 

2. Quarantine is for the benefit of all New Zealanders, not just those under quarantine.

I think this argument can be stated in even stronger terms: quarantine is primarily for the benefit of New Zealanders not in isolation or quarantine, although it is of benefit to those in isolation and quarantine too.

Normally, if we do something primarily for the benefit of B, not A, we’d expect B to pay for that thing, not A. So there’s merit to this argument also.

And yet … we might make an exception to that general position if the benefit in question is a reduction of a risk to B, if A has created the risk. In that case, we might think it fair that A bear some of the cost of reducing the risk that they’re creating for B. 

For example, certain safety measures are required for anyone who wants to have a pool on their property, primarily to reduce drowning of young children in pools. The requirements apply even if there are no young children in the household. Here, the pool owner (A) is asked to absorb the cost because of the risk that they’re creating for B (young children).

 

There are choices, and there are choices

So, there’s an argument that returnees should contribute to the cost of isolation, because by choosing to return to New Zealand’s they’re creating a risk. Arguably, this is just a different expression of the nasty divisive thinking I described earlier. Alex Braae put it this way:

New Zealanders overseas are being treated as potential burdens on the taxpayer, when they are our brothers and sisters who should be welcomed home with open arms.

There’s another issue here, too. I would normally find the idea that “people who make choices that create risks for other people should take responsibility for those risks” appealing. But COVID-19 has constrained the choices available to us. People are often having to make “lesser of two evils” type choices in relation to international travel. Someone who “chose” to stay overseas during lockdown may have been making the only practical choice available to them. Someone who “chooses” to go overseas now may feel compelled by a last opportunity to visit family. Someone with a lucrative overseas career may “choose” to take a flight back to New Zealand because they’re not sure when the next opportunity to come home will be, at great financial cost. In contrast, there seems to be a lot more genuine choice behind holidays and business trips, if there’s even any of that sort of travel happening at all at the moment.

 Furthermore, as well as choices being limited, any decisions we make as individuals or as a society right now are done in the face of great uncertainty. I think the case for making someone responsible for a choice is stronger when it is clear what the consequences of the choice will be.

So, neoliberal thinking predicated on rational individuals making free choices seems ill-fitting here. This is part of why some on the left are aghast at Labour’s exploration of the proposal – they are concerned that, as well as having dubious politics behind it, the imposition of the fee normalises “user pays” thinking.

 

3. The charging of any fee ($3000 or any other amount) affects low income New Zealanders the hardest and will provide a barrier for some people returning home from overseas.

The idea that the government would impose a tax that prevents some people from returning home does seem repugnant. 

However, whether the quarantine cost is seen as the cost of an exceptional public health measure, or one of several costs of travel, makes a difference. The cost of air travel is also a barrier to return. If the cost of air travel increases, and I’m pretty sure that it has, does that mean the government is responsible for mitigating the cost of flights to allow low income New Zealanders to return?

 And, this objection can potentially be addressed by allowing for exemptions or payment over time. Or having smaller “per extra person in the room” fees for families rather than $3, 000 per person, as National proposed.

 

4. Charging New Zealanders a fee to return to their country is unlawful.

5. Charging Māori a fee to return to their whenua is also a breach of Te Tiriti o Waitangi.

I’m going to deal with these objections together. I’m not an expert on human rights law, international law, immigration law, or Te Tiriti. I am prepared to say that the legal dimensions of this issue mean that any fee should probably be implemented via legislation. If that happens, the principle of Parliamentary sovereignty kicks in and the prospect of a successful legal challenge decreases considerably. I note that a human rights lawyer is quoted as saying that the imposition of a fee does not contravene the right to return home, although some exceptions may be necessary. 

Again, I’m not an expert in the relevant areas of law, but I think that opponents of the fee are over-egging their case by flat out stating that charging New Zealanders a fee to return to their country is unlawful. It seems that a complaint has been made (or will be made) to the Human Rights Commission, so I imagine we will find out the outcome in due course. It may be difficult for the HRC to comment on what so far seems to be a fairly abstract policy proposal, but we’ll have to see.

 

So, in conclusion?

I agree with William Findlay, quoted in stuff as saying that:

Labour and National are playing politics with the issue and are targeting a group of people who aren't in New Zealand to defend themselves

Expats seeking to gather support are playing politics, too, in a way. Seeking support via the media has an element of risk, as some in the media have decided to portray kiwis overseas unsympathetically. What I’m saying here is: we should be listening to the arguments that opponents of the isolation tax make, but I don’t think their cause is quite as strong as they may think it is.