covid-19: strengthened maritime border restrictions · new zealand waters will still be able to go...

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In Confidence

Office of the Minister of Health

Chair, Cabinet

COVID-19: Strengthened maritime border restrictions

Proposal

1 This paper seeks to consult with Cabinet on a proposed order under the COVID-19 Public Health Response Act 2020 to provide a clear and comprehensive set of restrictions that apply to vessels crossing New Zealand’s maritime border.

Relation to government priorities

2 The proposed COVID-19 Public Health Response (Maritime Border) Order 2020 (the Maritime Border Restriction Order) will protect New Zealand from further inward transmission of COVID-19 through people crossing the maritime border.

Executive Summary

3 Effective border controls remain a critical part of achieving New Zealand’s strategy for eliminating COVID-19. As we adjust to life at Alert Level 1 and loosen other restrictions on daily life within New Zealand, the need to maintain strict controls around the border grows. In these circumstances, the border becomes our first line of defence. Current practice does not account for the risk of infected marine crew being asymptomatic and boarding a vessel overseas without detection and then infecting others on the ship. These people could then be incubating disease or become infectious near the end or even beyond the 14-day period. This chain of transmission has been observed on cruise and other vessels.

4 New Zealand’s border has been closed to almost all non-New Zealand travellers since March 2020. While much of the focus has been on restricting the movement of travellers on commercial aircraft, there has still been a significant number of vessels crossing the maritime border during this time.

5 Most of these have been vessels carrying cargo or freight supplies, or other commercial vessels, such as for fishing. For other types of vessels, authorisation of their movement into or out of New Zealand has been managed by relevant agencies on a case-by-case basis. The ongoing border restrictions means that people arriving at the maritime border need an exemption unless they are New Zealand citizens and permanent residents, or specific types of marine crew or passengers.

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6 Our economy and its revitalisation relies on its global connections for people, goods and services, to underpin jobs, and to bring in investment and to stimulate new technologies and innovation. As New Zealand’s economy begins to recover, the volume of requests for vessels to both come here and to depart is likely to increase. Therefore, we recommend using the powers under section 11 of the COVID-19 Public Health Response Act 2020 to provide a clear and comprehensive set of restrictions to apply to all movements at New Zealand’s maritime border.

7 This will provide greater certainty for safe maritime activities to take place that contribute to New Zealand’s economy. This includes, for example, regularising the movement of cargo and permitting the entry of vessels for refitting and repair by the boat building industry, or for New Zealand operating purposes. However, at this stage, we do not recommend reopening the borders to cruise ships or foreign-flagged small, independent craft, which represent higher risk as sources of COVID-19 infection.

8 While the risk is the movement of people across the maritime border, this Order is mostly concerned with the entry or departure of vessels. This Order does cover some activities (including isolation or quarantine requirements) that occur immediately after arrival of the vessel.

9 The Order will specify clear rules about isolation and quarantine for people arriving on marine vessels. It will also specify some allowed movements for both vessels and some crew types around New Zealand, following arrival. These movements allow safe repatriation of marine crew home and replacement of crew. This paper also provides an option for marine crew to access seafarer welfare facilities with the requirement of a public health plan to mitigate the risk of COVID-19. These movements are important for the continued operation of freight, health and safety of crew, and the meeting of our international maritime obligations..

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11 The effect of this Order will be to restrict the movement of foreign-flagged craft to New Zealand. Officials (proposed to be co-ordinated by Customs as the Chair of the Border Sector Working Group) will engage with industry and/or representative groups on the conditions under which their activities could be resumed, to inform further amendments to the Order. Individual approaches to officials (via relevant departments) will also be considered on their merits. This will allow adjustments to the Order as the situation changes. These adjustments will allow new activities to be undertaken where there is an assurance that the potential risks of transmitting COVID-19 have been managed.


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16 This is important for small craft who, aside from cruise vessels, present the largest unmanaged risk of COVID-19, given they come from many places (diverse potential sources of COVID-19) and arrive in many places around New Zealand. There are over 500 small craft making their way from the Panama Canal into the Pacific right now. Some are New Zealand-flagged with New Zealanders on board, but most are not. Much of the Pacific is closed, so a substantial proportion of these craft may wish to come to New Zealand. Substantial numbers of other small craft are currently in French Polynesia,

As an indication of what would happen in normal times (2019), more than 450 small craft came to New Zealand most of these arriving in spring/early summer.

17 Some of those vessels may have one or more New Zealand citizens and/or returning residents wishing to come back to New Zealand on board. New Zealanders retain the right to enter New Zealand under the proposed restrictions. However, we propose to implement a set of general rules and restrictions on vessels via a proposed Maritime Border Restrictions Order.

18 The Order allows for foreign-flagged vessels who have permission to enter New Zealand under the exceptions provided for in the Order to replace crew members through safe means. These are:

18.1 Foreign crew flying into New Zealand to join vessels that are departing New Zealand waters will still be able to go directly to the vessel to isolate on board.

18.2 Foreign crew leaving a vessel in New Zealand will be allowed to depart directly for an international airport, or to a managed isolation facility until their flight is due to depart.

18.3 18.3 All foreign crew are separately required to meet New Zealand immigration requirements in order to enter and stay in New Zealand.

19 The proposed Order:

19.1 Continue to allow for a vessel to arrive in New Zealand if it is in distress and/or it is necessary for the vessel to arrive to preserve life.

19.2 Allows for persons to leave a vessel (before they have completed 14- days of quarantine/isolation) if there is an emergency or to access urgent health services. In exceptional circumstances, the Director- General of Health may exempt the 14-day isolation/quarantine requirement if there is clear evidence that public health risk is negligible.


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The proposed Maritime Border Restrictions Order

Creating a clear and comprehensive set of rules to apply to all vessel movements

20 The proposed Maritime Border Restrictions Order will create a set of rules and restrictions that specify the controls to apply to vessels (and indirectly to the people on them) to prevent COVID-19 re-entering New Zealand through the maritime domain. From a legal drafting perspective, the Order would achieve this by restricting almost all foreign-flagged vessel movements at New Zealand’s maritime border, and specifying controls on those vessels that arrive through a range of exceptions to the general restriction.

21 Section 11 of the COVID-19 Public Health Response Act 2020 enables the Minister of Health to issue the proposed Maritime Border Restrictions Order after having regard to advice from the Director-General of Health, Cabinet decisions regarding Alert Levels, and consultation with Ministerial colleagues.

22 Ministers are asked to note the key objective underlying the Order is that any decisions about vessels should primarily be made to protect the people of New Zealand and the Pacific from COVID-19, while ensuring no unnecessary interference with travel and trade, or other health and safety risks. Proposed Order will enable certain vessels to enter/depart from New Zealand, specify quarantine/isolation requirements for people arriving, and allow certain post- arrival movements

23 We recommend that Cabinet notes the following rules in the proposed Maritime Border Restrictions Order2:

23.1 as a foundational component, a rule forbidding all foreign-flagged vessels from coming to New Zealand, subject to specific exceptions for certain classes of vessels3 (see Rule A in appendix). This foundational rule does not apply if a vessel is in distress and/or it is necessary for the vessel to arrive in New Zealand to preserve life.

23.1.1 New Zealand flagged vessels will be allowed to enter New Zealand, all persons on board are separately required to comply with New Zealand immigration requirements to enter and stay in New Zealand.

23.2 a list of the certain classes of vessel excepted from the foundational rule and under what conditions they must operate (see appendix). Exceptions to the foundational rule are allowed where the risk of the vessel bringing new cases of COVID-19 to New Zealand can be effectively managed. These exceptions are:

23.2.1 All cargo vessels allowed to unload and load all cargo

2 All proposed rules are listed and detailed, along with any particular exceptions or key supporting rules, in the

appendix. 3 This rule will replace the current decision requesting that cruise ships do not to come to New Zealand.


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23.2.2 Fishing vessels allowed to unload catch and resupply

23.2.3 Antarctic vessels allowed to enter and depart

23.2.4 Foreign warships and other government vessels will be allowed to enter and depart (if granted diplomatic clearance).

23.2.5 Delivery of a vessel to a business (including yachts and other vessels) for repair and/or refitting.

23.2.6 Other craft, allowed to enter New Zealand for humanitarian or other compelling needs, as approved by the Director-General of Health, or their delegate, in consultation with the New Zealand Customs Service Ministry of Business Innovation and Employment, Ministry of Primary Industries and Ministry of Transport.

23.3 a clear specification of the quarantine and/or isolation requirements that apply to all people arriving on vessels (Rule G in appendix):

23.3.1 All crew or passengers intending to leave the vessel will be subject to managed isolation or quarantine as appropriate, unless they can self-isolate on-board for 14 days after arrival in Port.

23.3.2 Generally time at sea will not be counted toward the 14-day quarantine requirement. However if the vessel has been at sea and has not had contact with another vessel, or any other persons, and crew have not exhibited COVID-19 symptoms, for longer than 28 days, the persons on board will be exempt from quarantine or isolation requirements. This is a strengthening of the rules in comparison to the current border settings, the public health rationale for which is outlined in paragraphs 27 and 28.

23.4 a clear statement of how vessels and crew arriving into New Zealand may then subsequently move around New Zealand (Rules H - J in appendix):

23.4.1 Certain travel originating in and returning to New Zealand allowed provided that vessel does not enter any other country or interact with any other vessel outside of New Zealand

23.4.2 Replacement crews may enter, and the crews they replace,

may leave


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23.4.3 Crew not leaving the vessel may temporarily disembark to

undertake essential tasks for the purposes of loading and

unloading cargo, vessel maintenance, safety checks and

other necessary vessel preparations such as rigging

gangways.

23.4.4 Crew due shore leave.

Proposed Order will contain details outlined in the appendix and consequential

controls

24 The appendix sets out details of all the rules proposed, their main impacts or effects, and whether the rule is an existing, new or updated rule. In addition to the main impacts and effects, any exemptions, associated rules and/or requirements of note are also specified in the appendix. These will all form part of the proposed Order.

25 The Order may also set out quite detailed additional requirements for the management of COVID-19 risk to support each rule, including specific requirements for processes, protections or equipment to be used.

26 At this stage, given New Zealand’s current COVID-19 Alert Level, we propose to impose no additional restrictions on vessels departing from New Zealand.

Public health rationale for strengthened isolation/quarantine requirements

27 The strengthened restrictions in the Order, for example no longer counting less than 28 days at sea toward the 14-day isolation/quarantine requirement, are proportionate to the objective of preventing the spread of COVID-19 and preventing a re-escalation of Alert Levels. Isolation or quarantine requirements are a justified limitation on the right to freedom of movement given the public health rationale.

28 A key mechanism for ensuring our on-going success in preventing further inward transmission of COVID-19 is maintaining strong border restrictions for all borders. The new restrictions proposed in the Order align maritime arrivals more consistently with air arrivals. As mentioned in paragraph 3, the current practice with maritime arrivals does not adequately address the risk that someone who boards a vessel overseas may be incubating COVID-19 and/or be asymptomatic.


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29 Where the risk is reduced to the point of no longer being proportionate to the restrictions proposed, it is important we still allow safe repatriation of marine crew. This is important for both the continued operation of freight, but also for health and safety of crew, and the meeting of international maritime obligations. For this reason, it has been important to allow the exceptions relating to: crew leaving the country directly by air and replacement crew arriving by air; time at sea that will be counted toward the 14-day isolation requirement is if a vessel has been at sea and has not had contact with another vessel, or any other persons, and crew have not exhibited COVID-19 symptoms, for longer than 28 days.

30 A cost recovery model has been signalled in CAB-20-MIN-0284 A Sustainable Quarantine and Managed Isolation System. The model could have implications on any maritime arrivals who may need to pay for managed facilities if they cannot self-isolate on their vessel.

31 The capacity at managed facilities is low and these isolation/quarantine requirements may put further strain on capacity. However, it is unlikely that ships will wait 14 days for crew to undertake managed isolation.

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Proposed Order will also bring existing and new rules and restrictions together into

one place

39 These general rules and restrictions will also collect and rationalise a number of decisions made at different times, making it easier to see all vessel-related rules and restrictions in one place.

Proposed Order will replace and extend the current cruise ship ‘ban’

40 Cruise ships will not be excepted from the foundational rule. This means that the cruise ship ‘ban’ (which currently expires on 30 June 2020) will be extended and will be in place as long as this Order remains in force. This is the only aspect of the proposed Order that could be viewed as a ‘tightening’ from the current border settings, as it extends a current restriction [CAB-20- MIN-0107 refers]

41 The cruising industry is making plans to return to New Zealand, so any extension of the ban will mean they will seek to initiate a dialogue with officials. Officials will work with the cruise industry to identify how the industry can recommence operating in New Zealand, and the conditions they will need to meet for that to be allowed in the Order (see discussion below about the requirements for that to occur).

Managing the Maritime Border Restriction Order

Proposed Order will remain in force until amended or extended and initially for four

weeks.

42 It is likely that the Order will need to be amended or extended to remain in place until an effective vaccine has been found and deployed, or alternative arrangements that prevent the transmission of COVID-19 are developed and implemented.

43 Under the Public Health Response Act, the Minister of Health must keep any section 11 Orders under review otherwise they may expire. The Order will be reviewed during the initial four-week period and then as the situation changes, but at least quarterly.

Proposed Order may be amended as the COVID-19 risk management and exposure

changes

44 Over time, the circumstances may change. As countries take actions to control or eliminate COVID-19, the applicability of the proposed Order to vessels coming from those countries may need to be amended. As better management and processes for control of COVID-19 risk develop, effective means may become available that reduce New Zealand’s potential COVID-19 risk exposure from other countries, areas, particular activities or industries.


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45 The result may be that the rules can be relaxed for a particular country, area, activity or industry. The key requirement for any relaxation or amendment to the Order will be that the COVID-19 risk is effectively managed.

46 Proactively, officials (proposed to be co-ordinated by Customs as the Chair of the Border Sector Working Group) will engage with industry and/or representative groups on the conditions under which their activities could be resumed, to inform further adjustments to the Order. Individual approaches to this group of officials will also be considered on their merits. This proactive engagement will allow adjustments to the Order as the situation changes, which will allow new activities to be undertaken where there is an assurance that the potential risks of transmitting COVID-19 have been managed.

47 We expect that the cruise ship industry will seek a return to the New Zealand market as soon as possible.

48 The Minister of Health will consult with Cabinet on the policy underpinning the Order in four weeks’ time.

Financial Implications

49 There are financial implications associated with the small number of persons arriving into New Zealand who do not remain on their vessel either for the time it is in port or for 14 days self-isolation after arrival in port, and instead go into managed isolation. While employers of crew members will be requested to pay the accommodation and food costs of managed isolation, security, management and health testing costs will be incurred.

Legislative Implications

50 The Minister of Health will be making a new Order under section 11 of the COVID-19 Public Health Response Act 2020. This is a disallowable instrument and will be reported to the House of Representatives as soon as practicable after it is made.

51 The Order will automatically be revoked, unless it is approved by the House of Representatives within the longer of:

51.1 10 sitting days after it is made

51.2 60 days after it is made

51.3 any other period specified by the House.

52 The Minister of Health will work with the Leader of the House to seek the House’s approval within the required timeframe.


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International Law Implications

53

Impact Analysis

Regulatory Impact Statement

54 The Order proposed to be made under section 11 of the COVID-19 Public Health Response Act 2020 is a disallowable instrument. However, no regulatory impact assessment is required as this paper is in direct response to COVID-19, and is thus exempted from the Regulatory Impact Assessment process.

Climate Implications of Policy Assessment

55 No Climate Implications of Policy Assessment is required.

Population Implications

56 These decisions will have no differential impact on any population groups. Collectively, these will form part of the overall set of border restrictions though, and these border restrictions will lower economic activity collectively (which may result in disproportionate effects on some groups). The longer these restrictions remain in place, the larger the overall impact, which may result in a bigger potential impact on certain groups.

Human Rights

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Consultation

60 This paper has been prepared by the Ministry of Health, as the agency responsible for the proposed Order.

61 It has received significant input and is supported by the Ministries of Foreign Affairs and Trade; Primary Industries and the New Zealand Customs Service.

62 The Ministry of Business, Innovation and Employment were consulted to ensure that the new Order aligns with the recently established maritime border exception category, enabling people arriving via the maritime border to be exempted if there is a compelling need for the vessel to travel to New Zealand (CAB-20-MIN-0268 refers).

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65 The New Zealand Defence Force has been consulted about the proposed rules for domestic and foreign naval vessels.


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66 The restrictions to be incorporated into the proposed Order have been developed with involvement from Crown Law. The Department of the Prime Minister and Cabinet have been informed.

Implementation

67 The proposed Maritime Restrictions Order is being designed to align with the changes agreed to a new border exception for people arriving at the maritime border when there is a compelling need for the vessel to travel to New Zealand [CAB-MIN-20-0268 refers].

68 Unlike the current situation, vessels will become ‘approved’ if they meet one of the proposed exemptions in the Order. This offers potential to streamline the approval process: the approval of the vessel and the qualifying people for an immigration exemption will be able to happen simultaneously. Key government agencies are working to establish a ‘single door’ approach to approval processes for maritime border entry to support entry and the public.

Communications

69 A statement about these changes will be added to existing information on the Unite for the Recovery website (https://uniteforrecovery.govt.nz/). Similar statements will be added to the websites of the border agencies where people often seek information about travelling to New Zealand.

70 The new rules and restrictions will be proactively communicated to industry and maritime associations to pass onto their members and to commence a dialogue about the processes for moving towards normality. Details will be added to industry websites, containing country-specific information, that are used by international shipping practitioners to inform the relevant people of the changes and the opportunity to engage with New Zealand over the situations.

Proactive Release

71 It is intended to proactively release this paper on Departmental websites once the matters are no longer under active consideration, subject to any appropriate withholding of information that would be justified if the information had been requested under the Official Information Act 1982.

Recommendations

The Minister of Health recommends that the Committee:

1 note that the COVID-19 Public Health Response Act 2020 enables the Minister of Health to issue an Order for the purpose of controlling vessel movements into and out of New Zealand;

2 agree that the rules and restrictions outlined in this paper represent the appropriate level of public health measures to respond to the risk that the maritime border poses as a transmission pathway for COVID-19.


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3

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6 note that on 11 May 2020, Cabinet agreed to a framework for assessing financial support to maintain essential transport connectivity and authorised the Minister of Transport, the Minister of Finance and Minister for Regional Economic Development to approve new initiatives and to authorise the Secretary for Transport to enter into funding agreements with providers [CAB- 20-MIN-0219.28].

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8 note that the Minister of Health will make the proposed Maritime Border Restrictions Order.

9 note that the Order will apply initially for four weeks before being amended or extended.

10 note that the Order will be periodically reviewed against the policy objective at recommendation 1 or as circumstances change.


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11 note that officials (led by Customs as the Chair of the Border Sector Working Group) will engage proactively with industry and/or representative groups on the conditions under which their activities could be resumed.

12 note that the Minister of Health will consult with Cabinet on any proposed amendments to the Order.

Authorised for lodgement

Hon Dr David Clark

Minister of Health


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Rule Proposed Rule’s Title Main impacts or effects Nature of proposed rule change

• leaving to discharge grey water4 or run batteries, then

returning to port (we have a number of ships anchored in New Zealand waters that need to regularly do this)

• allowing fishing or other operating vessels that have only been operating in New Zealand’s Exclusive Economic Zone to return to port (without triggering any quarantine or isolation requirements provided there has been no interaction with other vessels undertaking international voyages or crew change while at sea);

• vessels operating to support offshore platforms or other vessels operating offshore, as long as they interact with no other vessels or places other than those they are supporting;

• allowing movement to sheltered areas during adverse weather;

• allowing movement to use harbour or repair facilities; and

• allowing a vessel to move or relocate from one place in New Zealand to another.

I. Replacement crews may enter, and the crews they replace, may leave

Crews for any vessel allowed into New Zealand under the exceptions in these rules, may switch or replace their existing crews. Both existing and replacement crews are allowed to travel directly to/from nearest international airport by private transport to reach the vessel, subject to the COVID-19 Alert Level allowing for it and any special conditions imposed, including:

• All crew arriving by air: o For vessels departing New Zealand waters: crew

must travel immediately to vessel. Only

New Rule

4 Grey water is drainage from dishwater, showers, and laundry, bath and washbasin drains. Any discharge is completed as per the regulations of the vessel’s flag state.

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dedicated private transport to a vessel from an international airport would be allowed.

o For any vessel remaining in New Zealand port: arriving international crew must complete 14 days at a managed facility or equivalent before transferring to vessel. This is to ensure no disease is transferred to vessel.

• All crew departing a vessel: o All crew departing the vessel into New Zealand

must complete 14 days at a managed facility (if they have not completed 14 days self-isolation on board since their vessel arrived into port). Crew must transfer from the port to the managed facility by dedicated private transport.

o For crew departing New Zealand, they must

immediately travel either to the nearest international

airport by dedicated private transport for departure.

Alternatively, if their flight is not on the same day as

they leave the vessel, they must transfer to a

managed facility for up to 14 days until their

international flight departs.

o Crew transferring between vessels and international

airports or managed facilities must do so using

dedicated private transport.


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J. Time away from ship available for crew while vessel is in port via managed facilities or equivalent.

Marine crew are allowed to leave the vessel, in accordance with all other New Zealand law, if they have completed 14 days of self-isolation since arrival into port. For those who have not, ‘Time away from ship’ is available for crew while vessel is in port via managed facilities or equivalent. This allows crews in port to go directly to managed facilities or equivalent for supervised exercise, contacting family overseas, and private time away from the vessel. Note that employers will be requested to pay for the managed isolation/quarantine of crew, both for ‘Time away from ship’ and if utilised by crew on arrival or departure.

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covid-19: strengthened maritime border restrictions · new zealand waters will still be able to go...

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