As Prime Minister Jacinda Ardern signals an impending loosening of COVID-19 mandates, lawyers including a Queen’s Counsel say the Government’s position breaches New Zealand and international human rights laws and agreements.
In a press release last month, Lady Deborah Chambers QC said Ardern’s Government has “removed our fundamental freedom of movement in a way that no other previous government has done”, using section 5 of the New Zealand Bill of Rights Act 1990. This section states that the rights and freedoms in the Bill of Rights are “subject only to such reasonable limits” as can be “demonstrably justified in a free and democratic society”. If the Government’s actions in response to Covid 19 have been justified using section 5, then “that section needs to be narrowed and strengthened”, said Lady Chambers.
“The never-ending onslaught of emergency powers and inane rules should be replaced now with sensible precautions, encouraged but not legislated by the Government, with an ongoing concentration on treatments, vaccinations, and health resourcing. Instead, our Government has continued – against international trends – to impose even more draconian measures in response to the Covid-19 pandemic.”
While Lady Chambers says she does not doubt the Government’s sincerity in taking the extreme measures it has, its obsessional “nanny knows best” focus on elimination has blinded it to disastrous impacts on New Zealand’s economy, social structure, education and other issues. “This is why health bureaucrats and epidemiologists should only ever have been a key source of advice, not dictators of Government policy.”
In a recent submission to New Zealand’s Human Rights Commission a Wellington-based human rights lawyer who wished to remain anonymous pointed out that the Government had not taken a human rights-based approach to its pandemic response, and as a result New Zealand is now out of step with nations with similar human rights commitments as New Zealand, as well as international and domestic human rights law.
“The latter includes the Bill of Rights Act 1990, the Human Rights Act 1993, the Health and Disability Code, the Privacy Act 1993, and the Treaty of Waitangi. The former includes the International Covenant of Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights … binding treaties that have been ratified by New Zealand.”
Government Covid responses fail the proportionality test, as elaborated in the Siracusa Principles in the International Covenant on Civil and Political Rights, she says, which “requires that measures adopted by States to combat the pandemic are time-limited, reasonable, proportionate, non-discriminatory and grounded in law to ensure that all human rights are protected, recognising that human rights are both indivisible and inalientable”.
“I propose an analysis here. I note that over 20 countries and provinces around the world have during 2022 reversed restrictions as COVID 19 becomes endemic. Such countries include Denmark, Finland, Norway, Sweden, the United Kingdom and Ireland, countries with similar records of human rights compliance as New Zealand.”
In his ruling in the Border Workers case in October 2021, Justice Cooke noted that “whether the challenged measure would remain demonstrably justified on the basis that it contributes to addressing the spread of the virus … where the virus is endemic in at least parts of NewZealand is an open question”. He added that “given the uncertainties about the effect of the vaccine in reducing transmission, it remains surprising that vaccination measures of this kind have not been addressed in primary legislation”. Four months later COVID-19 orders have still not been reviewed.
In addition to the “nanny knows best” Government, Lady Chambers also blames New Zealand’s media and opposition for the on-going erosion of human rights here.
“Most media are addicted to Covid-19 catastrophism, down-playing or ignoring the social and economic costs. Oppositions have been too timid to call it out, preferring to profit from outrage and trepidation, preferring to complain about a bungled vaccination rollout when we have one of the highest vaccination rates in the world and one of the lowest fatality rates.”
It is time we elevated civil rights as a key component to decision-making, said Lady Chambers. “So far, the influence of the Bill of Rights has been zip.”
By Marty Gibson.