MIQ and the New Zealand Constitution
Overseas readers might be curious to learn that Omicron has still not arrived in the New Zealand community, so our supermarket shelves are still functioning. And indeed that the August Delta outbreak is well on its way to dying out within the next month or so. The reasons for this unique state of affairs?
- We’re an island.
- Our borders have been closed to non-citizens since March 2020 (albeit exemptions apply).
- Our system of Managed Isolation/Quarantine (MIQ). The Great Wall against the virus.
I wrote some time ago about conditions in MIQ, which contrary to popular belief are actually vaguely comfortable: https://phuulishfellow.wordpress.com/2020/09/22/the-inside-word-new-zealand-quarantine/
One thing I did not mention, however: the lottery system. Since there are more New Zealand citizens wanting to enter the country than there are places in MIQ, you need to go through a randomised online lottery to qualify. If your number comes up, great. If not, try again next time, though there are provisions for emergencies and so forth.
Those missing out tend to complain, of course. On the other hand, it’s often a matter of timing. When the New Zealand Government stupidly decided in November to phase out MIQ for New Zealand travellers from Australia, there was a massive lull in bookings. Then Omicron hit Australia in December, and those plans were shelved… though 922 (rather savvy) travellers booked themselves into those spare MIQ spaces before the Government announced its change of plan, because they had correctly anticipated that the Government was not going to let Omicron in. Good on them, of course… and the overall message is that one should be extremely careful in planning overseas travel in the current environment.
Anyway, I bring this up because a certain high-class muppet has been getting local media attention with her whingeing about losing out in the lottery:
Jaime Ridge is currently in Los Angeles, apparently. And rather strikes me as one of those people who have never been told ‘No’ in their lives. One might have sympathy for someone trying to visit a dying relative, or for someone returning to New Zealand for a permanent job. But not someone like her. If anything, she’s giving the Kiwi Diaspora a bad name, and her comments about MIQ being ‘unconstitutional’ have gotten a good laugh on social media.
It’s actually the last point that has got me writing today. You see, contrary to the statements of some, New Zealand does actually have a Constitution. It’s just not written down in one place. New Zealand’s Constitution, like the United Kingdom’s, is an evolving and weird jumble of parliamentary statutes, treaties, manuals, and conventions – “what is done,” rather than “what is written”. The word ‘cabinet’ appears nowhere in any Act of Parliament, and yet it is the top rung of New Zealand’s Executive Government. And out of this jumble, one thing remains paramount – Parliament is Supreme. The experiences of seventeenth century England sees to that.
As such, it is genuinely possible for an action of a New Zealand Government to be unconstitutional. One famous example was Fitzgerald v. Muldoon (1976), where the incoming Prime Minister announced that mandated payments to the (previous Government’s) compulsory superannuation scheme could stop. Since the incoming Prime Minister had only announced this change, but not yet passed a law to give it effect, someone took the Government to court over this. And won. It was a temporary victory, of course – the Government got around to passing the required law in short order, but I think you see the point.
The situation with MIQ is a bit different. Here, MIQ has been authorised by an Act of Parliament: https://www.legislation.govt.nz/act/public/2020/0012/latest/LMS344134.html
Game over? Yes, game over. MIQ is, by definition, constitutional. But there is still one fly in the ointment. Namely, the New Zealand Bill of Rights Act (NZBORA), which under s18(2) guarantees the right of citizens to enter the country: https://www.legislation.govt.nz/act/public/1990/0109/latest/DLM225517.html
Is MIQ prima facie breaching NZBORA? Yes, yes it is. But s5 of NZBORA makes provision for this scenario, allowing “justified limitations” on such rights. And, well, a bloody international pandemic is a pretty good justification for limiting the ability of people to enter the country. Every person arriving in New Zealand right now is a potential disease-vector, and we quite like having a functional health-system and non-depleted supermarkets. Moreover, even if MIQ’s existence were not justified, and no creative interpretation of statute could fix it, s4 of NZBORA actually makes provision for that scenario too. Namely, that the offending Act still applies anyway. So MIQ still stands, regardless.
(Regulations governing MIQ are actually slightly different. If they violate s5, they do get thrown out, and would have to be re-worked. But I’m talking about the underlying statute).
In one sense, of course, this does actually beg the question – could breaching NZBORA itself be enough to warrant the charge of unconstitutionality? After all, the whole point of the New Zealand Constitution is that it revolves around “what is normal, conventional behaviour.” The implicit expectation is that NZBORA should not be breached willy-nilly, giving rise to the possibility that MIQ is “lawful, but not constitutional” (how’s that for a paradox?).
But that’s not a sentiment I personally agree with. Since NZBORA explicitly anticipates parliamentary statutes running up against it, and specifies that such statutes stand anyway, I do not consider breaching it to be a matter of unconstitutionality. Unconstitutionality to my mind implies more than the Government taking unconventional measures in a crisis. Unconstitutionality requires something to go topsy-turvy in the machinery of New Zealand governance. And MIQ – love it, or hate it – ain’t that.