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Attorney-General David Parker made a speech Friday last week in response to the leaked e-mail to police and the leaked Crown Law advice to the government that revealed how little legal power the police actually had to enforce the lockdown.
In it he revealed that the government have been counting on the public’s voluntary compliance, which logically suggests that what the leaks revealed is 100% correct: that the public were tricked into complying as the Police and the government did not actually have the law behind them to enable them to coercively force compliance except in very specific and serious individual circumstances
[…] but ultimately rely mainly on voluntary compliance and trust in the Police powers to enforce significant breaches
[…] voluntary compliance with what needs to be done has always been key.
[…] we expect the vast majority of New Zealanders will continue to comply voluntarily
His language also inadvertently revealed that what was required could have been achieved without a lockdown.
the health advice was clear. If we wanted to avoid the awful loss of life we saw unfolding overseas, and to prevent our health system being overwhelmed, we should wash our hands, practice good hygiene but most of all we had to keep physically distant from one another.
He also covers the government’s backside by admitting that:
“The Director-General (and a Director of Public Health) then decided to make a series of orders under s70, in light of the health information and risks known at the time.”
This suggests that in the cold light of day, and now with the benefit of hindsight, the government have finally realised that a countrywide lockdown was not the right choice for New Zealand.
He used a number of methods to avoid addressing the details revealed by the two leaks and to justify his and the government’s actions.
His first method was to completely ignore the content of the leaked e-mail and the leaked Crown Law advice. He did not address a single aspect of their content.
His second method was to make statements without providing any evidence to prove that they were factual. He doesn’t, for example, quote the language from the relevant sections in the Act that give the powers of enforcement he is claiming or the Crown law advice he is referring to. He does, however, mention a recent court case where a judge ruled that the term “persons” is broad enough to cover the entire population of New Zealand.
Let me say it again, as I have previously, that on the advice we have received from Crown Law there is no gap in the legality of the powers of enforcement under levels 3 and 4.
[…] I am satisfied the Director-General’s orders were lawfully made. Further, there has always been a lawful basis for enforcement action by Police, under both the Health Act and the Civil Defence Emergency Management Act 2002.
[…] There has been some debate as to whether the Director-General could legitimately isolate or quarantine the entire nation under s 70(1)(f) of the Health Act. I consider that subsection is apt to cover a direction to all New Zealanders for isolation and quarantine, with exceptions as mentioned and is not limited to use only in relation to specified individuals. The provision is that persons can be isolated or quarantined (with no statutory pre-condition that they may have or carry the disease)
[…] The interpretation and approach taken by the Director-General has of course recently been confirmed by Justice Peters in the habeas judgements A & B v Ardern & Ors, where Her Honour accepted that the orders which may be made under s 70(1) are very broad and that the reference to “persons” in s 70(1)(f) is capable of encompassing the entire population.
His third method was to use weasel words to make his audience think that he has proved his point when in fact he hasn’t. In the example below, on the surface it appears that he has proved that Police do have the power to set up roadblocks in order to coercively enforce the lockdown guidelines. But the kicker is in the line I have put in bold. The Police can ONLY use those powers according to the law. The leaks revealed that a roadblock with the purpose of enforcing the lockdown guidelines was NOT lawful.
Police also have emergency and enforcement powers under the Civil Defence Emergency Management Act. The use of these powers is assessed against the purpose of the declaration – that is to slow the spread and reduce the impact of COVID-19 (and thereby save lives). These include the power to enter premises, restrict public access to roads or places, and to direct and request people to stop activities or take actions to limit the extent of the emergency. These powers too must be exercised lawfully.
His fourth method was to avoid the real issue (which was the content of the leaks and what they revealed) by stating that the content was legally privileged and that the government had every right to hide the content from the public. He also contended that because the government are being challenged in court on the legality of the lockdown he is now constrained in what he can say.
“That privilege allows the Crown (as is the case with any client) to refuse to divulge the advice’s content
As you will know aspects of legality are currently before the Courts, so my approach today can only be a high-level one.
[…] I’m acutely conscious legality issues are before the Courts.
[…] this has necessarily constrained me in what I can say.
He then undermined his claim by revealing that he has had the power to reveal the contents all along but then did not explain why he chose not to reveal the contents on this occasion when asked to.
On occasion I will proactively waive the Crown’s privilege in legal advice because there are issues which the public need to understand.
He also attempted to counter future criticism by anticipating what his critics would say and by justifying his actions by claiming that the whistleblowers (by revealing the truth) were undermining public confidence in the government’s actions.
[…] there will be some who will ask whether I am trying to influence court proceedings upcoming and may argue I should not have made these comments.
However, I would reflect on the fact that the tone of some of those attacks has the potential, and is sometimes intended, to undermine public confidence in the measures that we have all taken to stamp out Covid-19.
He argues that the draconian lockdown was a proportionate response to the scale of the threat.
Bill of Rights Act
Isolation and quarantine requirements, the general prohibition of outdoor public congregation and restricted access to premises, are all measures that limit our rights to freedom of movement, association and assembly. To be lawful, they must be reasonable limits that are demonstrably justified in a free and democratic society. This means the measures must serve a sufficiently important objective, and be proportionate (in that they are rationally connected to the purpose, limit the rights no more than is reasonably necessary, and are in due proportion to the importance of the objective).
As I said earlier, there is no vaccine, no cure for this disease and the medical advice self-evidently based on real and recent overseas experience is that left unchecked the disease would cause the death of thousands of New Zealanders and cause serious economic harm.
The objective of the s 70 orders is legitimate […] I considered and still consider the measures imposed are a necessary and proportionate response. Preventing the spread of the virus could not be achieved in a less liberty-restricting way, […]
I am very mindful of the coercive controls that have been imposed under the s 70 orders but all of the orders are compliant with the Bill of Rights Act.
He then goes on to detail what enforcement powers section 71A of the Health Act provides police, but again the key rider is that they must be “exercised lawfully in each particular case.” He deliberately omits what the lawful definitions are because they will not help his argument.
Enforcement powers
Section 71A of the Health Act provides Police with various powers to assist medical officers of health: to prevent persons from obstructing or hindering the medical officers, and/or to compel/enforce/ensure compliance with a requirement made by a medical officer of health.
Section 72 of the Health Act sets out offences relating to obstructing a medical officer of health in the exercise or performance of his or her powers or functions, and obstructing or hindering a constable acting under s 71A. Police are empowered to arrest without warrant for these offences.
The s 70 notices set out clear expectations and behavioural requirements that all New Zealanders can understand, and there is a clear basis for Police constables to enforce these requirements under s 71A. They must, however, be exercised lawfully in each particular case.
[…] For the duration of the state of emergency, Police also have emergency and enforcement powers under the Civil Defence Emergency Management Act. […] These include the power to enter premises, restrict public access to roads or places, and to direct and request people to stop activities or take actions to limit the extent of the emergency. These powers too must be exercised lawfully.
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