Indian flight ban passes muster with many lawyers but human rights chief wants more information

Chief  Human Rights Commissioner Paul Hunt is championing the rights of New Zealand citizens and residents who are being inconvenienced by the Government’s decision to suspend travel from India for two weeks.  

The Government needs to be more transparent about the decision, which took effect yesterday and will remain until April 28, he huffs.

Other experts and commentators seem to have found enough evidence to be satisfied – perhaps with reservations – about the legality of the travel constraint.  

Newshub recalled Prime Minister Jacinda Ardern saying the move had been made due to the large number of Covid-19 cases coming into New Zealand from India.

The country is currently battling a massive resurgence of the virus, with about 116,000 new cases announced on April 6 alone.

The numbers have surged since then.According to The Guardian:

New Covid-19 cases in India have surged to a record 152,879 as the country battles a second wave of infections by pushing for faster vaccinations, with some states considering tougher restrictions to slow the spread of the virus.

India has the highest daily average number of new infections in the world, accounting for one in every six infections reported globally each day. Daily cases have set record highs six times this week, according to data from the federal health ministry.

The number of deaths has also soared, with the federal health ministry reporting 839 deaths on Sunday – the highest in over five months – as hospitals and crematoriums in some parts of the country struggle to cope with the worsening situation.

India’s tally of more than 13.35m cases is the third-highest globally, behind only Brazil and the US. The prime minister, Narendra Modi, launched a four-day “vaccination festival” on Sunday to encourage a greater number of eligible Indians to get a Covid-19 shot.

In her statement announcing the temporary ban on flights from India, Ardern said health officials believed people were catching Covid-19 in India on their way to the airport, meaning the cases were not being picked up by pre-departure testing.

“I don’t want people to experience that risk.”

The decision came after the announcement of 23 new cases of Covid-19 in managed isolation on Thursday.

Seventeen of those were from India.

Hunt apparently wasn’t satisfied and pressed the Government to release more information about the move, so experts could determine whether it was legal, necessary and non-discriminatory.

“While a public health emergency is a justification for limits to be placed on the free movement of people, any limitation on the rights of New Zealanders to return home must be clearly justified by the Government in accordance with its domestic and international human rights obligations,” he said.

“An assessment cannot be made on the lawfulness of the limitation without full transparency from government so we can ascertain whether its decision is proportionate and necessary.”

Under the International Covenant on Civil and Political Rights, to which New Zealand is a signatory, no one may be “arbitrarily deprived” of the right to enter their own country, Hunt said.

He should pick up his phone and chat with Michael Bott, a human rights lawyer, who 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.” 

Newshub noted that 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. 

Otago University public law expert Andrew Geddis agreed this is a major step for any government to take.

Certainly, previous Covid-inspired limitations on entering New Zealand have heavily impacted citizens’ and residents’ ability to get back to the country. You need to have a guaranteed place in quite limited MIQ facilities; with no priority accorded to New Zealanders over, say, wiggling Australian entertainers or balding British comedians. You need to get flights that line up with any MIQ place you manage to obtain. You need to pay for a Covid test (and have it come back negative) before you can get on to that flight. Which means that for many citizens and residents the trip home has in practice become near-impossible.

But all of these measures left in place an at least theoretical right of return, in keeping with the fundamental promise of citizenship (and residency). This right is now going to be stripped from some New Zealanders, at least temporarily. Can the government actually do this? The answer, it seems to me, is probably yes … But it’s a wee bit complicated and depends very much on the facts.

Geddis proceeded to wade through the complications and, in the upshot, argued it comes down to whether such an unprecedented decision is a ‘demonstrably justified’ limit on people’s rights. 

 Dr Liz Gordon, a former Labour, New Labour and Alliance MP, has pitched in with her thoughts on the Daily Blog. 

She is described as a researcher and a barrister, with interests in destroying neo-liberalism in all its forms and moving towards a socially just society.  She usually blogs on justice, social welfare and education topics.

Her thoughts are summed up in an article headed  Banning people from India: the right thing or racist policy?

She notes that the Government’s decision is the first time that people from a particular country who are NZ residents have been blocked from returning. 

Immediately, some people called it a racist policy, targeting one group when others from high risk countries are still allowed to enter.

So the first question is whether people from India pose a particular risk at the present time. 

She was able to find sufficient information to make a juidgement, which she sets out in her article.

She concludes:

Things are likely to get worse than better in terms of Indian returnees to New Zealand in the next little while.  While the Covid soars again around the world, temporarily pausing travel into New Zealand for people where risk of infection is high is a prudent measure, not a racist one.

New Zealander of the Year Siouxsie Wiles has been dipping into the evidence too.

She sets out her thoughts in an article at The Spinoff, illustrated by charts and tables, headed The data behind the decision to suspend arrivals from India in NZ

She expresses a concern about whether we have the capacity to adequately isolate and care for the increasing numbers of people we can expect to arrive incubating the virus. 

And she cites provisional travel data from StatsNZ, at the beginning of the year more people were returning to New Zealand from the US and UK than from India.

Despite this, the positivity rate for all three countries was around 5% and within our quarantine capacity. Since then, the positivity rate for travellers from the UK and US has dropped, but from India it’s been rising and is now at over 10%. As India’s case count continues to rise exponentially, it’s not unreasonable to think imagine that the positivity rate will also continue to increase. Given we normally have several hundred people arriving from India every week, this is how we could end up overwhelming our current capacity to isolate and care for everyone arriving with the virus.  

Yes, Wiles is a scientist rather than human rights lawyer but Hunt should pay heed regardless.

One thought on “Indian flight ban passes muster with many lawyers but human rights chief wants more information

  1. Ardern stretches credibility with her claim that all these people are catching covid in India “on the way to the airport.” I suggest either the testing facilities over there are not up to scratch so are producing inaccurate results, or more likely that many are purchasing fake covid free test certificates so they can fly back to NZ regardless.


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