When Rights Become Wrongs: Repeal NZBORA

I have always taken a dim view of entrenching the New Zealand Bill of Rights Act 1990 (NZBORA). In contrast to certain other online commentators, I consider subjecting parliamentary statutes to judicial review after the manner of the USA to be a fundamentally bad idea. At its heart, my objection has always been an expression of faith in New Zealand democracy – I would rather have social policy determined by politicians I can vote out than by judges I cannot. And while I know this puts me out of step with current notions of social liberalism, I am at heart a Leftist from quite a different Era.

Today? Today, I’ve come to a much stronger conclusion.

The New Zealand Bill of Rights Act 1990 needs to be repealed.

Specifically, a measure enacted three decades ago in response to the abuses of the Muldoon era has itself become open to abuse. Firstly, we have seen the courts give themselves the right to make formal Declarations of Inconsistency between statute and NZBORA – a matter nowhere addressed in the original NZBORA itself, but on which Parliament subsequently folded like a wet paper bag. Because in a Rights-centric Zeitgeist, such things only ever go one way – no politician wants to be accused of disrespecting “fundamental human rights”. To put something in the language of Human Rights is to claim that it is no longer open for discussion in the messy political arena, but only in court rooms among the well-educated and well-off philosopher kings of the legal community. Sometimes Plato has a lot to answer for.

But now, we have a bona fide case of the courts undermining public health measures. Measures that had been saving lives. A High Court decision today sided with the Friends of the Virus, in a legal challenge to the (highly successful and much-mourned) MIQ system:

https://www.nzherald.co.nz/nz/grounded-kiwis-fight-in-the-high-court-ends-in-success/OCYSA3UTLNRPXAW2DMA2SZSSZA/

In some respects, this decision actually means very little. The Government made the political decision to end MIQ back in February, so this is a dispute over something that is no longer in force. Moreover, despite the vocal hysteria about the decision from the pro-virus lobby, this decision does not invalidate MIQ as a concept – its existence was a matter of statute. No, this is a ruling against the actual regulatory mechanics of MIQ, specifically the lottery system and the handling of emergency exemptions. If the Government found itself needing to revive MIQ – perhaps in the face of a new and stronger variant – it could still do it. It would just need to rebuild the system from the ground-up.

But even so, this is an incredible public relations victory for the people bent on undermining public health. They get to dance on the corpse of MIQ, and the Government will become ever-more politically paranoid about taking stronger measures in a future crisis – pre-emptive surrender becomes so much easier. This strikes me as a toxic case of the courts ignoring what MIQ was put in place to do, simply because some privileged whingers could not adjust their plans to changing circumstances. It is almost as though – in a time when New Zealand suffers double-digit death-tolls daily – that the courts have forgotten the Spirit of 2020.

Now, no-one would call MIQ a perfect system. It was developed on very short notice in March 2020, and had various details to sort out during its two-year existence. But the simple fact is that MIQ worked. It was the thing that made New Zealand’s lockdowns viable, and was a cornerstone of the Elimination Strategy. It saved thousands of New Zealand lives, and enabled us to live a normal existence in a world gone mad. Prior to the Labour Government surrendering to the virus, we had had fifty or so total Covid deaths, spread across 2020 and 2021. Now we have over six hundred in a couple of months. That was the success that justified MIQ’s existence – and if the lottery system made life inconvenient for a small minority with the funds to afford overseas travel but without the wherewithal to understand the nature of living in a pandemic, then so be it. Babies and bathwater, and all that.

Because the question posed at the whingers really ought to be “did you take all reasonable precautions?” People stuck overseas in March 2020 had two years to return. Often during months where there was less demand for MIQ places than supply (c.f. November 2021). People traveling out the country after March 2020 knew they would be facing MIQ when they sought to return – and ought to have kept their plans flexible. That attention-seeking pregnant journalist (“the Taliban is more caring!”) had literally declined an MIQ space because the timing did not meet her schedule. It is a bit rich for such people to talk of their fundamental rights being violated when they have done absolutely nothing to make an inconvenient situation less inconvenient.

A bit rich, perhaps. But these are the people the New Zealand court system is now finding in favour of, because the requirement that people show basic empathy and common sense can no longer be “demonstrably justified” in the New Zealand of 2022. NZBORA was not supposed to mean sacrificing the lives of our elderly, and the functionality of our Health System, because some selfish idiots wanted greater convenience in overseas travel. But that is what it has come to. We can’t vote out the judges, but our elected politicians still have the ability to repeal the monster that NZBORA has become. Not that they ever will, of course…

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