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Written by Dr. Binoy Kampmark
Not wishing to be left out from the brutal closed border system that has characterised COVID-19 policy in Australia, New Zealand has also been every bit as extreme in limiting the return of its nationals. Pandemic policy, if not logic, has taken issue with the nature of citizenship, which, truth be told, is simply not worth the print or the paper.
In theory, New Zealanders should have more claim to a right of return than their Trans-Tasman cousins. Australia lacks a charter or bill of rights that protects such entitlements; New Zealand does not. Article 18 of the New Zealand Bill of Rights Act 1990 outlines provisions on the freedom of movement, including the right for all New Zealand citizens to enter and leave the country.
Australians can only rely on the mutable constructs of common law and weak judicial observations. At best, international law, fortified by Article 13 of the Universal Declaration of Human Rights (1948) and the 1966 International Covenant on Civil and Political Rights, offer mild protections that have done little to make governments in Australia and New Zealand more tolerant of their returning citizens during these pandemic times.
The barriers placed upon returning citizens have been onerous, including cost of air travel and those associated with managed isolation. Granted return spots are overseen by the Managed Isolation and Quarantine (MIQ) body. The immigration website of the government is also blunt to those wishing to enter New Zealand. “The border is currently closed to almost all travellers to help stop the spread of COVID-19.”
Epidemiologists have also been busy drumming up concerns about such new variants as Omicron, suggesting that further limits are necessary. One is Otago University’s Michael Baker, who is more keen on the process of containment than the legal implications of citizenship. “A big change is the virus is now more infectious and we’re seeing more people arriving in New Zealand in our MIQ (managed isolation and quarantine) facilities. Our risk has risen, our responses need to rise up to this challenge and manage it.”
In reference to a returnee who had tested negative on two occasions for the virus while in MIQ, only to then receive a positive test result when released into the community, Baker felt that “timing suggests most likely” that the infection took place at the facility itself. For New Zealanders already struggling to return, Baker suggested the “need to turn down the tap.”
Legal authorities such as Kris Gledhill also remark that the right to return might well be protected by the Bill of Rights, but it was hardly absolute. The government had its own obligations to protect those in New Zealand from COVID-19, which justified placing caps on numbers. There is also the competing interest of protecting the healthcare system. Then there are the “rights that flow from having a robust economy, including the right to an adequate standard of living.”
Reading such lines of priority yields only one, sorry conclusion. If you, as a New Zealander, happen to be outside the country, best lump it. Parochial considerations are to be prioritised. “So yes, there is a right to return,” writes the unconcerned Gledhill, “but it is a right that can be delayed to protect those already here.”
An example of such a tolerable delay came when a pregnant New Zealand journalist based in Afghanistan found it impossible to return to her country to give birth. Charlotte Bellis, in a piece explaining her circumstances, noted how she “started playing the MIQ lottery, waking up at 3am and staring at my computer, only to miss out time and again.” She resigned from Al Jazeera in November, had lost income, health insurance and her residency.
The New Zealand government, having promised to open the borders to citizens – at least in a more liberal way – by the end of February, postponed matters. The MIQ lottery was suspended. Applying for emergency MIQ spots was hardly promising: 5% of NZ citizens were approved if unable to stay in their current location and only 14% being accepted on health and safety grounds.
Alternatives for Bellis were running out. In a profound twist of fate, she found herself seeking potential assistance from, of all groups, the Taliban. She explained to a senior Taliban contact that she was dating “Jim [Huylebroek] from The New York Times, but we’re not married”. The contact explained that he respected the couple’s status. Were she to come to Kabul, “you won’t have a problem. Just tell people you’re married and if it escalates, call us.”
Such an observation led Austrian-Afghan journalist Emran Feroz to remark acidly that the media savvy Taliban had taken a distinctly softer approach to non-Afghan journalists. “Journalists who were seen as Afghans often faced threats, beatings, torture and murder while non-Afghans … had tons of privileges and were welcomed and treated softly by all sides.”
Muzhgan Samarqandi, a former broadcaster from Afghanistan having recently emigrated to New Zealand, felt the red mist descending on seeing reactions to the Bellis case. The situation in her country, she raged, had been “trivialised”. “If a person in power extends privileges to someone who doesn’t threaten their power, it doesn’t mean they are not oppressive, extremist, or dangerous.”
Bellis had certainly done herself few favours on that score, having secured a degree of approval amongst Taliban circles, much to the chagrin of an Afghan journalistic community that has suffered abductions, torture, and killings. In one interview, she is found stating that the Taliban had “always treated me respectfully” and had “never intimidated me. I’m surprised at the image of them around the world, that they’re so inhuman.” With such assurance, it is little wonder that Bellis had little concern querying the Taliban on their record on treating girls and women. In journalistic terms, she provides the tinsel and baubles.
All focus, and energy, turned to seeking entry into New Zealand. Despite the assistance of lawyer Tudor Clee, letters from New Zealand obstetricians and medical experts on the dangers of giving birth in Afghanistan, including levels of induced stress – all in all, 59 documents submitted to MIQ and Immigration NZ, the couple received their rejection notice on January 24.
With characteristic, border control peevishness, the authorities took issue with travel dates being more than 14 days out. Insufficient evidence had been provided to show that Bellis had “a scheduled medical treatment in New Zealand”, that it was “time-critical” and that she could not “obtain or access the same treatment in your current location.”
Publicity for her case was drummed up. The PR channels were worked. Politicians took notice. Suddenly, the MIQ application status was changed from “deactivated” to “in progress”. Her partner was duly informed that he had received a visa and could apply for an emergency MIQ spot.
The Bellis example suggests an unsavoury practice at work in the NZ COVID-19 border protection regime. Clee, having taken to court eight cases where pregnant New Zealand citizens were rejected, has seen MIQ budge just before court proceedings officially commence. Bellis is astute enough to see what is at play here. “It’s an effective way to quash a case and avoid setting a legal precedent that would find that MIQ does in fact breach New Zealand’s Bill of Rights.”
COVID-19 Response Minister Chris Hipkins was untroubled about the distinctly flawed methodology used by MIQ. The policy had “served New Zealand exceptionally well, saved lives and hospital admissions and kept our health system from being swamped.” All Bellis had to do was apply for a separate emergency category.
The head of MIQ, Chris Bunny, in commenting on the Bellis case, saw little problem with the way it had been managed. “It is not uncommon for people who have been declined an emergency allocation to reach out to a Member of Parliament.” The fact that such a case would even have to happen never bothers Bunny.
Forget human rights; it’s the contacts and standing that count. If you can scream loudly enough and seek the ear of a calculating politician, the system just might work for you. On that score, the plodding wallahs defending Fortress New Zealand and Taliban officials with an eye to cosmetic media touches, might just have something in common.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com