The BFD | Ringmasters Being Led by Clowns

Chris Penk

First published by The BFD 24th June 2020

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

Are you certain?

And now for another excellent point that the New Zealand Law Society made about the government’s approach to the rule of law being so inexcusably inept (my phrase, not theirs):

The Law Society considers it important to identify the legal foundations for the various responses by the Government to the COVID-19 epidemic. The most conspicuous example is the public confusion that resulted from government communications merging activities that are now legally impermissible— that is, contrary to law—and activities that, though lawful, are undesirable and discouraged.

At the circus showing every day at 1 pm, it became clear that quite often the ringmasters were being led by clowns.

Oral statements contradicted other oral statements. Written statements contradicted other written statements. And oral statements and written statements contradicted each other.

Confusion and contention abounded online and in homes.

How should Kiwis consider a rule recorded on a government website that had been “clarified” (or, in other words, “changed”) by the Prime Minster as she went along?

Even official statements online started arguing with each other. The “SafeTravel” website sternly ordered that New Zealanders “Do Not Travel overseas at this time”. That was immediately followed by text that made it clear that the government’s intent was actually to “advise” against overseas travel.

These distinctions may seem unnecessarily fine – just “semantics”, as if there’s anything more important about words than their meaning – but the difference matters if you’re desperately weighing the risk and cost of heading away from home to loved ones locked down overseas.

Professor Geddis provided useful insight into the problem, stating that “the moral reasons for sticking to the announced level four rules are inarguable” but then going onto say:

All of the above depends on knowing just what are ‘the rules’ we all should be following. And it’s fair to say that there remains a degree of confusion regarding at least some of them.

As an example, here’s what Civil Defence Emergency Management director Sarah Stuart-Black told the public on Saturday:

“I think the key message is ‘stay local’. If you can go for a walk by going right outside your front door, great, if you have to drive a short distance, that’s fine too, the challenge we have is when people might drive themselves to a place that if they get into trouble, someone else might have to come and help them which exposes more risk.”

But, here’s what RNZ said in the very same story reporting her comments about how the level four rules apply:

If I wanted to visit the beach this weekend could I? Yes, if you could walk there you can. Otherwise no, you’ll have to find something else to do.

So, it’s OK to drive a short distance to a park to exercise, but not to a beach? Why? And how does this then link with Stuart-Black’s subsequently reported comment that people should “use their judgment” when selecting exercise options? Because my judgment wouldn’t draw that particular distinction.

Much has already been said about the situation of the so-called checkpoints that existed without sanction, up north and elsewhere in the country.

Incidentally, “sanction” is in that rare category of words that has two different meanings that are exactly opposite. It can mean “being allowed” or “being punished”.

Read that phrase I’ve just used again and note that either meaning of “sanction” makes as much sense as the other: “the situation of the so-called checkpoints that existed without sanction”.

The meaning that you ascribed to “sanction” on reading that phrase initially probably depended on your political perspective.

It just goes to show how ridiculous the whole situation was.

All the usual points were made by all the usual people when Hone Harawira revealed that he had enjoyed a “safe” breakfast of bacon and eggs at his sister’s house during a trip to Auckland, despite that not being allowed at the time. I trust he took off his sheriff badge before sitting down at the dining table.

The police top brass then entered the fray, defending the (otherwise?) unlawful activity on the basis that the boys and girls in blue were providing supervision all the time.

As Simon Bridges noted, however:

It’s one thing to turn a blind eye… but it’s entirely another thing to do what your officers have done, which is to come along and condone this unlawful activity by standing alongside those who have taken the law into their own hands.

The whole yarn then unravelled when it became clear that such supervision wasn’t in fact happening, at least some of the time.

Claims all community roadblocks have a police officer present collapsed less than a day after being made with police headquarters now admitting there was no officer at a roadblock on State Highway 1 where motorists were being refused onward travel.

Police had initially claimed the officer was there but have now admitted he was absent for 70 minutes.

The incident unfolded less than 24 hours after new police commissioner Andy Coster told Parliament’s epidemic response committee checkpoints now had a police presence “so that they are lawful”.

And so it continued:

[The Police Commissioner] also said that motorists ability to travel on state highways was not being interfered with.

That was on Thursday.

The next morning, an NZME journalist travelling on State Highway 1 north of Houhora in the Far North encountered a roadblock without a police officer. After presenting paperwork showing media were an essential service, those at the roadblock refused to allow onward travel. NZME owns the NZ Herald, NewstalkZB and other media outlets across the country.

All of which raises an interesting question: who do you complain to about the police not following the law?!

I know, I know … there is a body known as the Independent Police Complaints Authority. But the point isn’t really that a specific incident could be the subject of a specific complaint here.

The problematic part played by police was not any particular action undertaken but rather a lack of action. Also problematic was endorsement by the police – explicit from the highest level and implicit on the ground – of unlawful actions by others.

Speaking of complaints not worth the paper they’d be written on, the Health Minister’s indiscretions provided more grist to this mill, as a guest contributor on Kiwiblog explained:

I made a complaint to the NZ Police about the Minister of Health breaching the lockdown through the Police’s online COVID-19 L4 breach form on 3/4/20. This was the mountain biking incident.

Having learned of David Clark’s second breach with a 20km drive to the beach several days later I personally rang the Police to lay a further complaint & follow up on my original complaint.

Here’s the main point – when asking the Police why they have not prosecuted the minister they told me all breach cases are referred to THE MINISTRY OF HEALTH, who recommend whether to prosecute. The very same ministry that is run by Minister of Health David Clark, the offender. I told the Police officer that this is an obvious conflict of interest and the chances of the ministry of reccommending prosecution against their own minister is non existent but to no avail.

Meanwhile, while the country was constrained beyond belief, stories like this one were also seriously unhelpful:

A cafe at Police National Headquarters (PNHQ) sold coffee to cops during coronavirus lockdown while restrictions to stop the spread of the disease crippled New Zealand’s hospitality sector.

The café […] was closed on April 9 after the rules around it being open were “clarified” by the Ministry of Business Innovation and Employment (MBIE).

Police staff have visited non-essential businesses that have opened during lockdown and told them to shut their doors.

Despite the restrictions, the cafe at PNHQ sold coffees to some of the dozens of police staff working from the building during the first few weeks of lockdown. […]

The case highlights the confusion lockdown has created for some businesses.

Supermarkets and service stations, both essential services, have been told to stop selling takeaway coffee.

The MBIE website states that cafes, bars and restaurants must remain closed at Level 4.

Another example of lack of clarity was the situation with lawyers under Level 4. I had a constituent contact me asking whether legal service were considered “essential”. This person had legal documents needing to be prepared by their lawyer – and signed, with a witness in person – and so I tried hard to understand the government’s rules for this type of activity.

On one hand, the official definition of “essential services and businesses […] permitted to continue to operate” included the “Justice Sector” (among other things).

That’s a pretty big tick in the box for legal services, as activities such as witnessing wills – which the law is clear must be done in person to be valid – could easily be said to be within the justice “sector”.

On the other hand, within the very same document provided by government “justice sector” was seemingly used interchangeably with “justice system”.

Within that, the only “[e]ntities providing essential services (including their supply chains)” listed were:

“Courts of New Zealand, tribunals
Critical Crown entities (e.g. Electoral Commission)”

In other words, legal work appeared to be barred outside of cases actually in front of courts and tribunals and government agencies.

So a person wouldn’t have been allowed to have her will updated but her estate could have applied to a court for probate to be granted, after she’d died?

And you couldn’t have your lawyer or conveyancer do the legal transactional work needed for you to sell your house but (if you had been able to sell it) you would have been allowed to move because somewhere else some other pen-pusher decided that was do-able.

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