At the start of the Level 4 lockdown, unknown to the public, the Police were flying by the seat of their pants, receiving almost daily updates telling them how to deal with the lockdown.
At the start of the lockdown on 25th March, the Medical Officer of Health (MedOH) notice said that everything should be closed apart from private residences and essential services and that people should not congregate in large groups. There was nothing more specific in the MedOH notice. That was it.
The job of the Police was made more difficult by the fact that what the PM and then Commissioner Mike Bush were saying in public could not be backed up by the law because of the very limited specifics of the original notice.
An e-mail, which The BFD has sighted, was sent to Police front line staff on 28th March. The purpose of the e-mail from Deputy Commissioner – National Operations Mike Clement was to make clear to the police force what their legal powers actually were.
You will be surprised to discover how little power NZ Police actually had to enforce the level 4 lockdown.
At the end of my e-mail is the summary of the CL advice to Police about legal powers, it is along the same lines of that provided by Bill [Editors note: Bill Peoples, National Manager Legal Services]. I have highlighted the parts of paragraphs 2-4 that make it clear. For people moving about in public, either on foot or in cars I believe we are restricted to working at level 1 in the graduated response model. I know that staff at the front line are using a range of tactics with the right intent but not supported by the law.
Without clear guidelines it seems that some Police (with the best of intentions) were using tactics that required powers that they did not yet legally have.
I suspect that Regional Civil Defence EOC’s are stood up with Police involvement as you would expect. The IWI and CD views are clearly also contributing to the tactics being used.
Bill is working up a draft that would create an option to extend the law to the types of tactics being used now but for the time being that power does not exist.
This part is very interesting as the illegal iwi checkpoints that have been tolerated by Police (and until recently given their tacit approval by their presence to supervise them) apparently also influenced the kinds of “tactics” used. Remember that these tactics assumed a power that did not actually exist.
I have discussed this with Andy and we are of the view that a message needs to get to the front line as soon as possible which informs our tactical response until the legal basis changes (acknowledging that this could happen at any time).
At midnight on Wednesday 25 March NZ shifted to level 4 on the Covid alert scale effectively asking New Zealanders to stay at home for 4 weeks to slow down the spread of the virus. Essential Services have been identified and staff should familiarise themselves with those services. Workers travelling to and from are clearly permitted to do so. Everyone will have seen those in Senior roles from the Prime Minister down talking about what is and isn’t permissible. While people are being encouraged to stay at home, some sensible guidance has been provided. Going to the Supermarket, Pharmacy, Hospital for example.
Likewise going beyond your property for exercise but doing so in a localised way, some have talked about staying in your bubble. It is pretty common sense stuff. while it is accepted that not everyone is following that guidance, Police powers do not extend to road Blocks, 3T’s [Traffic stop] or the like for the purpose of testing people’s compliance with the lockdown expectation.
Police staff cannot direct anyone to do anything unless it is quite extreme in its nature and with direct and significant impacts for the health of others. It is unlawful to do so and we shouldn’t be doing it.
And yet iwi checkpoints were allowed and given an aura of Police authority by their presence. Perhaps it was because they gave the Police the opportunity to use Level 1 tactics, which are to engage with the public and encourage and educate them. Again we see that the Police did not have the power to stop traffic or use road blocks for the purpose of “testing people’s compliance with the lockdown expectation.”
In the graduated response model that has been circulated Police is operating at level 1- Engagement, encouragement and education. The powers to stop people and vehicles in public places are the powers relied upon outside of the vivid (sic) environment. If while a person or vehicle is stopped it is appropriate to have a conversation about meeting the intent around the lockdown then the discussion should be of the type captured by level 1.
Perhaps by turning a blind eye to the illegal actions of iwi checkpoints stopping traffic, Police realised that they could then legally use them to their advantage. If a car had already been stopped by iwi the Police could then legally have a chat to the occupants.
The Police guidance to staff about our tactical response has been clearly communicated to the AoG team. If there is to be a change to the legal position that will be communicated back to all staff as soon as possible – that could be at any time.
The Police’s Graduated Response Model (GRM) enforcement approach has four levels:
- Engagement, encouragement and education
- Warning (which will be recorded)
- Arrest and detain for a short period and release without prosecution
- Arrest and prosecute for serious and persistent breach
The e-mail on 28th March gave the following summary of actual Police powers:
As at today’s date, Police have the following powers to enforce the isolation campaign:
1.1 non-coercive community policing powers;
1.2 following the 25 March 2020 order issued by the medical officer of health ( MedOH) under s70(1)(m) of the Health Act),the power, under s71A of the Health Act, to do anything reasonacly necessary to assist in ensuring compliance with the MedOH’s order: and
1.3 the power, under s71A of the Health Act to enforce individualised directions issued by a MedOH under s70(l)(f) of the Health Act
2. In situations not covered by the s 70(l)(m) order or an individualised s70(l)(f) direction, Police do not have the power to detain individuals, stop vehicles, enter property, search individuals or property, or conduct surveillance over individuals or property in order to enforce the isolation campaign.
3. As a state of emergency has been declared, and for its duration, Police also have the potential to have recourse to certain enforcement powers under the Civil Defence and Emergency Management Act 2002 (CDEMA) However the threshold for the use of these powers is very high. Enforcing general compliance with the isolation campaign is unlikely to meet the high statutory threshold for the exercise of these powers. The CDEMA powers are powers of last resort, and we recommend that legal advice be sought before their use.
4. Standard Police powers of stop, search and surveillance must be exercised for their statutory purpose, and may not be used to assist Police in the enforcement of the isolation campaign.
5. To minimise legal risk, we recommend that Police’s non-coercive community policing powers be used to the greatest extent possible in encouraging compliance with the isolation campaign, and that resort be made to the s71A powers only where necessary.
Far from the Police State that so many of us felt we were in, the Police’s actual power during the lockdown was minimal. I suspect that to ensure our compliance the public were conned (for the best of reasons) into thinking that the government and the Police had much more power than they actually did.
This is likely why the Prime Minister, Jacinda Ardern, scared the public with unsubstantiated epidemiological models that predicted “tens of thousands of deaths”. With a shaky legal basis for enforcing the lockdown, they needed to scare people into complying.
I have been told that a difficulty that Police had under Level 4 was that ministerial musings were assumed to have the force of the law behind them. One example being the Environment minister Eugenie Sage stating in a press release that duck shooting was to be delayed, without actually gazetting it as required by law. This had to be quickly covered up with a hasty amendment to the new health notice.
Former Police Commissioner Mike Bush said as much to the Epidemic Response Committee on 2 April 2020.
Bush said officers had been told to have a graduated response in their interactions.
“No one will be prosecuted for being in doubt.”
Police would first educate people if they were found to be breaking the rules, then would get a warning, then would be arrested and released without charge if the breaches were persistent and only in the most serious instances would someone be prosecuted.
“Our sole purpose is to work with the public to ensure people comply,” Bush said.
“But we must stay within the law.”
The Police were tasked with enforcing a lockdown but without the legal powers required to actually enforce it. They were walking a tightrope with only the ability to “encourage and educate” people to comply with what in reality was a request from the PM. This explains why the language Jacinda Ardern has used right from the beginning has aimed to convince the public that they have chosen to go into lockdown in order to protect the vulnerable and that “we” are fighting COVID-19.
It also explains why the Police Commissioner Mike Bush was reluctant to allow the public to know that their legal advice was that they couldn’t actually do anything. He refused to provide that advice to the Epidemic Response Committee when asked. Now you know why. If Mike Bush had provided that advice then the the government’s lockdown was essentially at an end.
It also explains why Attorney-General David Parker refused to provide that same advice to the Epidemic Response Committee when asked.
Locking people up for breaches is on very shaky legal ground. It could only legally be done for really dangerous stuff. Maybe the guy who filmed himself coughing in the supermarket just to teach him a lesson, and maybe for the guy who got jailed for seven breaches (but only if they were “serious”). What they couldn’t legally do was lock up a person for telling a cop to go fuck himself when told to go home like in the video of those dicks that the cops wanted to follow to the shops.
It appears that at the start of the lockdown period, the Government and Police were on shaky legal ground enforcing such a lockdown. It is believed that subsequent MedOH notices clarified the actual legal position, but it also appears that for at least the first two weeks there was no legal basis upon which to enforce the lockdown.
A good journalist might ask the Police Commissioner, given this early advice, what they have done since to ensure that they are acting legally. And also how many arrests or prosecutions have taken place which could have and indeed should have been dealt with under Level 1 of the Graduated Response Model?
Essentially, the advice points out what every new recruit has drummed into them at Police College, that depriving people of their liberty is a serious matter. The Police in the initial two weeks of the lockdown were clearly aware of this issue, but their political masters were encouraging a snitch culture. The Prime Minister was heard to demand that journalists hand over details of alleged breaches so the Police could go and strong-arm people into compliance.
What we know now is that those actions were ultra vires: acting or done beyond one’s legal power or authority. Businesses were closed on Police orders, shopkeepers threatened with arrest, and all without any legal basis. This may well open the government up to protracted legal action for harm caused by illegal action by the enforcement arms of the state.
Businesses like Jack Lum’s greengrocer store and the Mad Butcher may well now have legal recourse for the illegal shut down of their businesses.
The iwi roadblocks are completely illegal too. What Act are they using to require people driving vehicles to stop? There must be an Act with a specific section dealing with the legal right for police to stop people.
The Land Transport Act allows Police to stop someone for the purposes of checking the WOF and the registration of a car, or a driver’s licence status, for example.
There are other powers to stop a vehicle also under that Act, and other Acts. But the Police must exercise their right to stop someone under a specific Act.
So if the driver asks why they were stopped the police should be able to state the Act and subsection they relied upon. Let’s say the Police stopped a car to check a licence status of a driver, and when they went up to the window they smelled pot. They can no longer rely on the Land Transport Act to proceed; they must now state that the car is now being detained under the Misuse of Drugs Act 1975. They have the power then to detain that vehicle for the purposes of a search. The initial power to stop is still under the Land Transport Act, which is a legal stop if they intend to check the driver’s licence status, but as soon as their intent changes (that is, they smelled dope), the power to detain changes immediately, and they must state that to the detainee. This is where the Police and the Government have significant issues. Police have lost cases because the Police could not state that they were relying on the relevant Act to detain or search. The iwi (and in some cases gang members) are stopping legal motorists and depriving them of their legal right to travel a road. On what and whose authority are they doing this?
A full inquiry needs to be established to ascertain if the Government, the Director-General of Health Ashley Bloomfield and the Police acted ultra vires, beyond their legal power or authority.
For media: OIA these documents, you should ask for email communications between Mike Clements and John Tims, CC’d to Kaye Ryan, Susan Schwalger, Scott Fraser, Richard Chambers, Andrew Coster, Travis Mills, MOC, Gary Allcock, William (Bill) Peoples, Tusha Penny, and Bruce Bird, dated 28 March 2020 at 11:14am.
And an email communication from Bronagh McKenna at Crown Law sent to Bill Peoples, CC’d to Daniel Perkins at Crown Law, dated 27 March 2020 at 10:25pm and included a document with the file name [CLO-Docs.POL055.2475.FID422945]
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