The Government's decision to temporarily ban travel from India doesn't break the law, legal experts argue.
Over the last year, as COVID-19 wreaked havoc around the world, New Zealand's managed isolation and quarantine system has been critical to mostly keeping the deadly virus out of our community.
However, with the number of cases spiralling out of control in some countries and a large number of infected people coming from high-risk nations, there have been calls from some epidemiologists for the Government to reduce how many people are entering the country.
But under the Bill of Rights, Kiwis have a right to come home.
So when Jacinda Ardern on Thursday announced a temporary ban on people coming to New Zealand from India, some asked: Is that even legal? According to multiple experts, arguably, it is.
"The key is that it is temporary, and if other countries are also high risk, they should be treated the same. It also appears reasonable, and thus justifiable," Waikato University Law Professor Gillespie told Newshub.
"Nonetheless, we are in uncharted waters. Banning foreigners from named countries at the beginning of the crisis is one thing, banning kiwis from returning from named countries is another. So much will turn on what is decided in two weeks time, when the temporary prohibition is examined."
"It is not our intention that this be a long-term tool because that simply would not be, for a long period of time, that is just not something we are able to do to our citizens."
Section 5 of New Zealand's Bill of Rights allows for "justified limitations". However, the legislation says that such limits must be "reasonable" and "demonstrably justified in a free and democratic society".
Throughout her Thursday press conference, Ardern repeatedly stressed that the measure, which will come into place on Sunday and last, at this stage, until April 28, is temporary.
It comes as the Government scrambles to find a response to a spiking number of people entering New Zealand's MIQ facilities from India with COVID-19.
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The virus is out of control in the south Asian nation, with a three-day rolling average of 112,000 cases per day and concerns the surge will soon worsen. It's so bad that Kiwis officials believe people are getting infected while travelling to the airport, after they have had their pre-departure test.
"We have never previously suspended travel to New Zealand citizens and residents," Ardern said. "That's why I do want to ensure you this is not a permanent arrangement, but rather a temporary measure until we are able to better understand and manage the current situation we are facing."
She said that while the cases from India - 17 reported on just Thursday alone - prompted the new measure, the Government was looking at how to manage arrivals from high-risk countries generally.
"This is not a country-specific risk assessment, but, of course, a risk assessment generally to ensure that we better manage the number of cases that are coming in from those countries that are experiencing a surge."
The Prime Minister didn't rule out extending the suspension, but said it couldn't put in place a long-term ban.
"It is not our intention that this be a long-term tool because that simply would not be, for a long period of time, that is just not something we are able to do to our citizens."
The Government isn't looking at suspending arrivals from other countries because there aren't the same number of cases coming into New Zealand from them.
Michael Plank, a maths professor at the University of Canterbury, pointed out the difference in a Twitter post on Thursday night.
"This is a temporary restriction and it is important to note it is a temporary restriction. It is not a decision that we took lightly."
"The percentage of arrivals from the UK and United States testing positive in MIQ was mostly 1-2 percent around New Year (UK has since declined). The percentage of arrivals from India testing positive had been around 2-5 percent but has shot up towards 10 percent in recent weeks."
In a piece for The Spinoff, law expert Andrew Geddis explained the question has to be whether the limit on the right of New Zealanders to enter Aotearoa is "demonstrably justified".
While assessing that can be "notoriously tricky and subject to all sorts of argument", Geddis said the 'yes' perspective is supported by the fact the restriction is temporary and follows a jump in people from India arriving with COVID. However, the 'no' argument is bolstered by the fact this is a "total abrogation of the right" and New Zealand has faced influxes of infected people before.
"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."
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COVID Response Minister Chris Hipkins told The AM Show on Friday morning that the suspension was justified due to the spike in positive cases coming from India. He said it couldn't be done on a permanent or ongoing basis.
Michael Bott, a human rights lawyer, told RNZ he would argue the suspension was legal as nations have to be flexible in responding to events that threaten their people's lives.
"It is quite understandable that in those sorts of situations... then there is a necessity to deviate from fundamental rights as long as, for example, it is demonstrably necessary to achieve a purpose which is arguably the life and wellbeing of the nation and its citizens. It is also only a temporary measure so it is proportional to a risk."
