Guest Post: Are Kiwis too scared to come home? The border is wide open.

A guest post by Tudor Clee:

In January 2021 Prime minister Jacinda Ardern righteously exclaimed that “We have to let people who have a legal right to live here – such as our own citizens – to come home, otherwise you are making them stateless.”

Within months MIQ bookings were closed and she was doing exactly that.

The challenge was how to remove the rights of millions of kiwis without ‘removing’ the rights. It is well known that Kiwis cannot fly back to New Zealand without an MIQ Voucher – that can only be obtained from a perverse squid game lottery system, or making an Emergency Application. It is often claimed that this lottery system breaches Section 18 of the New Zealand Bill of Rights Act 1990 – being the right to enter New Zealand. But it doesn’t. And hats off to the cleverest lawyer Ms. Ardern could find. 

No citizen is stopped entering. Let me say this one more time, no citizen is stopped entering.

They are stopped boarding an overseas commercial aircraft that will be penalized if they allowed someone to board without a voucher.  It only has one flaw – citizens can still board the aircraft without a voucher if they are transiting New Zealand.

For instance, on a ticket from Sydney, to Auckland, to Los Angeles. 

Assuming the citizen meets the entry requirements for the United States (fully vaxxed, a $12 ESTS Visa, and a hotel address) they will be allowed to board in Sydney to Auckland.  On landing in Auckland there is nothing the Government can do if someone ‘decides’ they wish to enter New Zealand instead.

Nothing.

The reason for the change of mind doesn’t need to be explained. A citizen intended to only transit and then they decided not to.  It is the beginning and end of it.

The “Right to Enter” is more than just fluff – it is the name of the Section in the Immigration Act 2009 and goes as far as spelling out the right in detail, including that a citizen cannot be deported.

13 New Zealand citizens may enter and be in New Zealand at any time

• (1) For the purposes of this Act, every New Zealand citizen has, by virtue of his or her citizenship, the right to enter and be in New Zealand at any time.
  
• (3) (b) no New Zealand citizen is liable under this Act to deportation from New Zealand in any circumstances.

As such a citizen can walk off the plane in Auckland. Go to health check, go to immigration, stamp in, have their bags collected, and be put on a bus to MIQ.

All without a voucher.

They can’t be put in a room, forced on a plane, waterboarded, beaten up. Nothing.  

The conundrum for the Government was how to stop people exercising this basic right. The first course of action was to provide misleading information on their own websites.

https://covid19.govt.nz/travel/international-travel-and-transit/transit-through-new-zealand/

This page discusses transiting in New Zealand. It states:

“You can only transit New Zealand through Auckland International Airport, where you must stay in the transit area of the airport. You cannot apply to enter New Zealand.”

It doesn’t provide an asterisk to advise New Zealand citizens that they don’t need to ‘apply’ to enter New Zealand and cannot be held in a transit area. The ambiguity helps maintain the falsehood that the border is shut to Kiwis.

The second course of action is to maintain the high level of fear for all travellers. One person told me her friend said the transit passengers were ‘escorted by armed Police’ as if to ensure no one make’s a break for it.  Whether that is true or not, in the era of Covid hysteria, it was enough to put at least one person off flying home.

If a Police Officer of Immigration Officer attempted to ‘hold’ a citizen in a transit lounge they would at best only be sued for false imprisonment and likely fired – and at worst criminally prosecuted for kidnapping. 

The Government is fully aware they cannot criminalize a citizen entering.  As such the sole penalty for entering without a voucher is a measly $1000 infringement notice – essentially like a parking ticket that does not go on your record.  This is on the basis that it is a ‘medium risk offence’

A breach of a requirement where the worst potential outcome of the breach is a possibility of transmitting or spreading COVID-19 or limiting the capability of the public health response, which does not otherwise meet the description for low risk or high risk.

How this is arrived at is not explained.  Every single traveller has a ‘worst potential outcome’ of transmitting COVID as we have seen with foreign DJ’s who freely enter the country, break the rules and even then are still not prosecuted.

It also doesn’t ‘limit’ the public health response – it makes use of it.  MIQ was set up for overseas citizens returning – and these are overseas citizens returning.

In my view the infringement is challengeable in Court – paying a fine to enter your own country, or for the Government’s failure to plan a public health response 2 years into a pandemic, doesn’t seem like the kind of thing that would hold up in court.

So the question is – why is the news and social media filled with the most horrific stories of grief, loss, desperation, of Kiwis stranded overseas when they can simply get on a plane and fly home tomorrow?

The explanations I have had included not wanting to ‘take’ a space from someone else.

This is of course total nonsense. There is enormous capacity at MIQ – they have space for summer DJs, foreign sports teams, The Wiggles, the previously unheard of Dutch Cricket team, and yes, even more DJs.  They definitely have space for Kiwis.

They also have a successful home isolation program that was used for 4000 plus actual positive Covid cases to stay in the community and of course a Member of Parliament coming home. 

The other explanation is that people are scared of what will happen to them.

I accept this. Most of the people I’ve spoken to are law abiding citizens. The notion of having to ‘break the law’ is terrifying, even when ‘breaking the law’ is going home and paying a fine.

How interesting that most people would be prepared to speed to catch a flight they are late for (and risk an infringement) yet are terrified of getting the same infringement for going home.

How reprehensible that we are living in a country our own citizens are ‘scared’ to return to. Given there is a way home, immediately, there is no longer an excuse for the endless posts of misery. 

The solution is entirely in the hands of Overseas Kiwis.

Tudor Clee is an Auckland based Barrister who assisted 30 pregnant couples through the MIQ system including filing 8 Judicial Reviews pro bono to obtain MIQ vouchers.

Tudor has also provided the document below which goes into more detail around the law says, but note this is not formal legal advice.

MIQ Transit v5 by David Farrar on Scribd