MBIE has recently released and updated its Operations Framework for Managed Isolation and Quarantine Facilities. This document contains Standard Operating Procedures (SOPs) for the management of Managed Isolation Facilities (MIF) and Quarantine Facilities (QF). The legal basis for the SOPs is contained in the COVID-19 Public Health Response (Isolation and Quarantine) Order 2020.
The purpose of the Order is to prevent, and limit the risk of, the outbreak or spread of COVID-19 by setting out the requirements for people who must be isolated or quarantined and limiting entry to any managed isolation or quarantine facility to persons who are approved, authorised, or required to enter.
The Order empowers the government to control who enters New Zealand by having access to MIF and QF depending on whether they are considered to be low or high-risk individuals. Specifically, the government can distinguish between different classes of persons entering New Zealand, prioritise allocations between different classes of persons and reserve a proportion of allocations for a particular class of persons. In exercising these powers, decision-makers are required “to take into account the right of New Zealanders to enter New Zealand”.
The Operations Framework recognises that the New Zealand Bill of Rights Act 1990 applies to the management of MIFs and QFs and that providers of these services consider the implications of limiting or denying fundamental freedoms and human rights:
People in facilities are not allowed to leave which is a significant restriction on their human rights. Under NZBORA, people being detained, for whatever reason, must be treated with humanity and dignity (for example, ensuring people have daily exercise subject to health and safety requirements and operational constraints).
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The SOPs address specific scenarios where those human rights are engaged and how the scenarios should be handled. It is important that procedures are followed because they set out how best to balance peoples’ human rights with our objective of keeping COVID-19 out of our community. This means staff can be confident that human rights concerns are addressed adequately, and reduces the risk of legal challenge.
It is abundantly clear that the management of MIFs and QFs is a substantial breach of the human rights of thousands of people and that these breaches are occurring on a daily basis. The rights which are being breached include:
- The right to freedom of movement (which includes that everyone lawfully in New Zealand has the right to freedom of movement in New Zealand and all New Zealanders have the right to enter New Zealand).
- The right to freedom from discrimination on grounds specified in the Human Rights Act 1993.
- The right to be free from arbitrary detention (i.e. a person cannot be detained without good cause).
- The right to justice when the government makes decisions which adversely affect its citizens, e.g. by interfering with, restricting or denying citizens’ human rights and fundamental freedoms.
The right to health is not recognised under New Zealand law other than the rights to refuse to undergo medical treatment and not to be subject to medical experimentation. Being subject to isolation or quarantine restrictions could be construed as medical treatment which is currently compulsory for those wishing to re-enter New Zealand. Similarly, the government’s elimination strategy could be construed as an experiment given that few other countries are implementing an elimination strategy.
In its Operations Framework, the government contends that the human rights which are being “engaged” are being balanced against, and subject to, the right to health and the government’s response to Covid-19. However, although the right to health is recognised internationally, it has not been adopted domestically in New Zealand. That is because the New Zealand human rights framework affords much greater protection to civil and political rights than to economic and social rights.
Commercially, the management of facilities is a fledging industry. Therefore, actions, policies and programmes which are part and parcel of this business need to be assessed in the context of the United Nation’s Guiding Principles (the UNGPs) for Business and Human Rights. In short, these principles require government agencies to protect human rights and, in the event of breaches, to provide an effective remedy.
I consider both the government’s human rights framework, the current Operations Framework and the SOPs to be flawed. By failing to amend the NZBORA to include an affirmation of the right to health (see article 12 of the International Covenant on Economic, Social and Cultural Rights), the government has lacked an ability to balance competing rights.
In contrast, the Constitutional Court of South Africa was able to balance competing rights of patients who required dialysis treatment on a regular basis in order to prolong life because the South African legislature had affirmed the right to health in its constitution. Based on its interpretation of this right, the Court upheld a decision of the South African High Court that it was legitimate for the health provider to make allocation decisions pursuant to a set of guidelines due to the scarcity of resources. In a separate judgment, Justice Sachs observed that:
Traditional rights analyses accordingly have to be adapted so as to take account of the special problems created by the need to provide a broad framework of constitutional principles governing the right of access to scarce resources and to adjudicate between competing rights bearers.
In New Zealand, there are questions over the adequacy of the existing human rights framework and whether the current framework permits the government to engage in a balancing exercise of recognised and affirmed human rights against other interests (such as the right to health and to respond effectively and appropriately to Covid-19). But in relation to MIF and QF, traditional rights analyses are of the table because the right to health has not been affirmed by Parliament and is not part of our human rights framework (except for the more limited right to refuse to undergo medical treatment).
What remains is a more limited assessment under the New Zealand Bill of Rights Act of whether the SOPs are reasonable limits prescribed by law and demonstrably justified. That requires consideration of whether it would have been feasible for the government to increase the allocation of places in MIF and QF and to progressively realise the right of New Zealanders to come back home. Without a robust and informed analysis, the assertion that “staff can be confident that human rights concerns” have been adequately addressed lacks credibility.
Lack of access for a majority of citizens seeking entry to New Zealand via MIF and QF and the lack of ability to challenge those decisions by most affected people weaken the government’s mandate to implement these measures unilaterally as it has done under the Order.
The difficulty faced by most people in accessing any effective remedy in response to the implementation of the SOPs underlines the seriousness of the human rights breaches. There is a compelling case for urgent remedial action including repairing the inadequate and incomplete human rights framework, engaging in a more credible human rights analysis and taking all reasonable steps to progressively realise the human rights and fundamental freedoms which have already been affirmed by Parliament.