The BFD | Ignorance of the Law

Chris Penk

The BFD is serialising National MP Chris Penk’s book Flattening the Country by publishing an extract every day.

Ignorance of the law

It’s pretty important that the laws of our land are easily enough understood to be obeyed. The system breaks down rather, if that’s not the case.

In a letter to the Epidemic Response Select Committee in early April, the New Zealand Law Society made this point (a good deal more elegantly than I’ve just done) under the heading, “The importance of the rule of law and clarity”, in the following way:

New Zealanders must accept restrictions in order to defeat COVID-19. However, clarity about the constraints on our usual freedoms of movement and association and on commerce, and clarity about the legal basis for these constraints, is central to ensuring compliance and ongoing public confidence and support.

The poster child for non-compliance with arguably uncertain rules was none other than the Minister of Health. A series of short extracts will suffice to recall his various escapades:

Strike one:

Health Minister David Clark has apologised to the Prime Minister for flouting the Government’s advice to exercise locally during the lockdown.

Clark yesterday confirmed he drove to a park to go mountain biking on Thursday. […]

“People can go outside to get fresh air and drive short distances if needed, but we have asked people to avoid activities where there is a higher risk of injury, and the Minister should have followed that guidance.”

Strike two:

Health Minister David Clark has been demoted after driving his family 20km to a beach to go for a walk in the first weekend of the lockdown – a breach that the Prime Minister says he would normally be sacked for.

“At a time when we are asking New Zealanders to make historic sacrifices I’ve let the team down. I’ve been an idiot,” Clark said in a statement this morning.

Strike three:

National leader Simon Bridges is calling for the head of Health Minister David Clark, after it was revealed he continued to move boxes between his houses during alert level 4.

Bridges said that not only was this Clark’s “third strike” but it was also unacceptable that during the biggest health crisis in New Zealand’s history, the Health Minister has not been in Wellington.

I bring these to the table not to embarrass the Minister of Health. He has proved more than capable of doing that himself. I hesitate to confess that I actually like the guy, as that confession will surely damage my reputation as well as his.

But it’s worth recalling these incidents at least briefly as they illustrate a profound problem with the whole legal basis of the lockdown: the rules simply were not clear.

Dr Clark probably broke the rules.

The really challenging bit in that sentence wasn’t the phrase “broke the rules” (even though he admitted as much in relation to at least some of those incidents). It was the “probably”. He “probably” broke the rules but we didn’t actually know.

The fact that a couple of days’ worth of debate took place on Twitter (never resolved, of course, because nothing there ever is) – and the fact that Dr Clark may have believed he was within his legal rights at the time – tells you all that need to know about the dangers of arbitrary and unclear laws. Remember, this was the Minister of Health. If he didn’t know what exactly was allowed at what point, the rest of us surely had little chance.

Just about the only person in the country who had less excuse than the Minster of Health for not knowing the rules was the Minister of Police. And yet, when that very person (Labour MP Stuart Nash) was asked on RNZ about what inter-bubble contact would be allowed at Alert Level 3 he had this to say:

If it’s your mother you can probably give her a hug, if it’s your son, your daughter, you can probably give them a hug as well, but again we want to reduce human contact as much as we possibly can.

If it’s your mother you can probably give her a hug? What about your father? Step-mother? Step-father? And what the hell did he mean “probably”?

It’s a sad state of affairs when the Police Minister does not know the rules by which others in society – the police and the policed alike – are supposed to play.

It actually beggars belief how long amateur hour went on.

You can order a signed copy of Flattening the Country for $20 (per copy, including postage and packaging) by: