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COVID-19 Public Health Response (Validation of Managed Isolation and Quarantine Charges) Amendment Bill (Consistent) (Sections 19, 26(1), 27(3)) [2021] NZBORARp 34 (12 May 2021)
Last Updated: 15 June 2021
![2021_3400.jpg](2021_3400.jpg)
12 May 2021
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: COVID-19 Public Health
Response (Validation of Managed Isolation and Quarantine
Charges) Amendment
Bill
Purpose
![2021_3401.jpg](2021_3401.jpg)
- We
have considered whether the COVID-19 Public Health Response (Validation of
Managed Isolation and Quarantine Charges) Amendment
Bill (the Bill) is
consistent with the rights and freedoms affirmed in the New Zealand Bill of
Rights Act 1990 (the Bill of Rights
Act).
- We
have not yet received a final version of the Bill. This advice has been prepared
in relation to the latest version of the Bill
(PCO 23757/1.4). This advice has
been prepared in a short timeframe due to late receipt of the Bill that was not
in compliance with
Cabinet Office Guidance. We will provide you with further
advice if the final version includes amendments that affect the conclusions
in
this advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 19 (freedom from
discrimination), s 26(1) (retroactivity),
and s 27(3) (right to bring civil
proceedings against the Crown). Our analysis is set out
below.
The Bill
![2021_3401.jpg](2021_3401.jpg)
- The
Bill amends the COVID-19 Public Health Response Act 2020. The purpose of the
Bill is to correct an error that resulted in Australian
temporary entry class
visa holders being unlawfully charged a higher fee for their Managed Isolation
Quarantine (MIQ) stay. MIQ fees
are charged in accordance with the COVID-19
Public Health Response (Managed Isolation and Quarantine Charges) Regulations
2020 (the
Regulations).
- Immigration
New Zealand’s processes for giving visas to Australian citizens is
different to processes applying to citizens of
other countries, due to New
Zealand’s special relationship with Australia. New Zealand’s
immigration settings generally
convert all Australians entering New Zealand to
the same resident visa status, even if they have travelled to New Zealand on a
temporary
class visa. 1
- Australians
travelling to New Zealand under a temporary class visa have been charged MIQ
fees at the temporary class visa holder rate
for MIQ.2
However, because they had been converted to resident visa status on entry
to New Zealand, and liability for MIQ fees
1 This is in accordance with the
Immigration (Visa, Entry Permission, and Related Matters) Regulations 2010.
2 This is higher than the rate payable by most New
Zealand citizens and residents, and Australians who are ordinarily resident in
New
Zealand.
arises at the point of entry into MIQ (that is, after their visa status has
changed), the Regulations do not allow them to be charged
at the temporary class
visa rate.
- The
effect of the Bill is to validate the fees actually charged and provide that any
money received in payment of the fees is lawfully
collected and applied. These
changes mean Australian temporary class visa holders are deprived of the right
to request a refund of
any unlawful charge.
- The
Bill also amends the Regulations to provide for charging MIQ fees to Australians
who travel to New Zealand on a temporary class
visa at the higher
rate.
Consistency of the Bill with the Bill of Rights Act
![2021_3401.jpg](2021_3401.jpg)
Section 19 – Freedom from discrimination
- Section
19 of the Bill of Rights Act affirms that everyone has the right to freedom from
discrimination on the grounds of discrimination
set out in the Human Rights Act
1993 (the Human Rights Act).
- The
Bill retroactively treats Australian temporary class visa holders differently
from other arrivals who have been through MIQ. This
raises the question of
whether the right to be free from discrimination is engaged. The key questions
in assessing whether there
is a limit on the right to freedom from
discrimination are:3
- does
the legislation draw a distinction on one of the prohibited grounds of
discrimination under s 21 of the Human Rights Act and,
if so
- does
the distinction involve disadvantage to one or more classes of
individuals?
- A
distinction will arise if the legislation treats two comparable groups of people
differently on one or more of the prohibited grounds
of discrimination. Whether
disadvantage arises is a factual determination.4
- There
is a distinction present, however it does not appear to be made on the basis of
a prohibited ground. The key distinction appears
to be between Australians (and
others) who are ordinarily resident in New Zealand and Australians who are not
ordinarily resident
and travel to New Zealand on a temporary class visa. This
distinction appears to be based on place of residence, rather than on ethnic
or
national origins or citizenship. We also note that it is very difficult to draw
a comparator group here, as Australians are already
treated differently from
other groups within our immigration system.
- For
these reasons, it does not appear that s 19 is engaged.
Section 26(1) – Retroactivity
- Clause
4 of the Bill will have retroactive effect by validating all previous charges
that were incorrectly made. While this engages
the principle that legislation
should not have
3 See, for example, Atkinson v Minister
of Health and others [2010] NZHRRT 1; McAlister v Air New Zealand
[2009] NZSC 78; and Child Poverty Action Group v Attorney-General
[2008] NZHRRT 31.
4 See, for example, Child Poverty Action Group v
Attorney-General above n 1 at [179]; and McAlister v Air New Zealand above n 1
at [40]
per Elias CJ, Blanchard and Wilson JJ.
retroactive effect,5 it does not involve the
retrospective application of a criminal offence. The Bill therefore does not
engage section 26(1) of the Bill
of Rights Act, which relates to retroactive
offences.
Section 27(3) – Right to bring civil proceedings against the Crown
- Clause
4 of the Bill deprives those Australian arrivals covered by the Bill, including
Australian temporary class visa holders, the
right to a refund of any unlawful
charge.
- This
clause might be seen to raise an issue of compliance with s 27(3) of the Bill of
Rights Act, namely the right to bring civil
proceedings against the Crown and
have those heard according to law in the same way as civil proceedings between
individuals. However,
cl 4 of the Bill affects the substantive law and does not
fall within the ambit of s 27(3) of the Bill of Rights, which protects
procedural rights.6
Conclusion
![2021_3401.jpg](2021_3401.jpg)
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
![2021_3402.jpg](2021_3402.jpg)
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
5 Legislation Guidelines
(2018 edition), chapter 12.1.
6 Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001]
1 NZLR 40, 55: “[s]ection 27(3) ... cannot restrict the power of the
legislature to determine what substantive rights the Crown is to
have. Section
27(3) merely directs that the Crown shall have no procedural advantage in any
proceeding to enforce rights if such
rights exist.”
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