Jason Stewart is worried that we have crossed a line by using the Police and health professionals to enforce a community lockdown when he thinks the legal basis was never in place

By Jason Stewart*

It would seem a simple piece of logic that you isolate or quarantine a sick person, not a healthy one.

I am penning this in response to what I see as abuse of powers in New Zealand during the Covid-19 events.

On the face of it the lockdown doesn’t seem that contentious, but I first saw my unease paralleled by law firm Franks-Ogilvie, headed by former Act MP Stephen Franks. As both lawyer and former MP he is surely well placed to understand the legal complexities. Then there is the opinion of two Law Professors from the UK.  Both of these articles refer to “Ultra Vires”, drawing power from the legislation that is not there to be taken. Opposition MP’s Mark Mitchell and David Seymour have called for the Crown Law advice on the matter to be disclosed. Now it turns out that even senior Police knew the Government was overstepping the mark in ordering them to enforce the rules.

So a serious question over the legality of the lockdown does exist.

Another simple piece of logic is that if there does exist uncertainty then the fall back position is what is certain. In this case certainty exists with the Bill of Rights Act 1990. The freedom of movement, Section 18, the freedom not to be arbitrarily arrested or detained, Section 22, and if pushing it a little even Section 25(c), innocence until proven guilty.

I write with my own concern as a former police officer.

The concerns are that government, or more importantly the appointed Medical Officer in issuing a Health Notice, is drawing powers beyond those in statute.  Second, is government interference by directing Police to enforce these unlawful rules. Third, that the Police have given up their independence and acted unlawfully.

How much do you value your freedom? Are you willing to permit for short term events to overturn well thought out and established principles of a civil society?

The place of Police in society is really quite elementary, to keep the peace. 99% of the basis for Police work mostly concerns incidents where one person commits an act that directly breaches someone else’s right to peace and security.

New Zealands first Police, the Kororareka Association, was formed in 1838 by a group of businessmen in what is modern day Russel, to protect their interests from disorder, to keep the peace. Missionaries have described it as a wild frontier town. Earlier in 1831 13 Maori Chiefs had petitioned King William IV for protection from the lawless settlers and whalers.

What I was taught at the Royal New Zealand Police College is that the service here is a descendent of Robert Peel’s “Bobby’s”, the London Metropolitan Police.

Independence from the state, and from politics, is a very clear principle that Bobby’s worked under, and theoretically underpins the New Zealand Police. The Police serve the public, they don’t serve parliament. When I trained in the mid 90’s what we were taught was very much about how Policing was a community based affair, about getting to know and working alongside your locals.

An example of the fragility of independence from politics happened while I was serving. The Helen Clark led Labour government disbanded the PNHQ (Police National Headquarters) to allow more "oversight". John Key’s National government changed the name back, which I am assuming was a handing back of independence. 

A large amount of training to be a Police Officer is to learn where coercive powers come from in Acts of Parliament. I was also taught there is a basic underlying freedom that everyone has the right to enjoy under the Bill of Rights Act. Police can only intervene when there is statutory authority to do so.   

When intervening, Police rely on two processes, with Warrant, and without. Both face an evidence test before these powers are exercised. A Warrant must be issued by an independent person, usually a judge, but a search warrant can be signed by a JP, that reviews the evidence. When exercising powers without a warrant, Police must apply the test of “Good Cause to Suspect” a crime has been committed. There must be some sort of urgency to breach a persons freedom without warrant, otherwise Police must take the time to seek one.

There is also a principle that arrest, or detainment, is the extreme option. All other options should be exhausted before arrest is executed. (In practice I found arrest to be standard procedure and your performance was measured on your arrest count.)

Here is the thing, each individual Police Officer is taught the law and knows where his or her power starts, and stops. It has been deliberately set up this way to prevent government interference. There is no defense that they were "obeying orders". A Police Officer can be charged with assault if they abuse their legal use of force, and a small number are. Every Police Officer can be sued if they have acted unlawfully.

The Health Act 1956

If I was still serving as a Police Officer I would be looking at the special powers that the government has invoked under the Health Act to see how I execute any powers lawfully, and where the extent of those powers are limited. And a fine technical detail is that government actually doesn’t have any powers except to declare a state of emergency, the special powers in an emergency lie with the Medical Officer.

When I read the Health Act what is evident to me is that the powers are closer to what is required to act with a warrant, not without. A warrant being something that is specific not generalist in nature. Evidence is required to enforce these special powers, and an associated Health Notice issued. For instance when I take a look at Section 70 (1)(a) of the Act it states the District Medical Officer can:

declare any land, building, or thing to be insanitary, and prohibit its use for any specified purpose

To declare something insanitary would require evidence. I don’t read this as a power to shut down every private workplace or school in the nation. I suspect there might be a lot of businessmen looking for redress over the closure of their business premesis.

Section 70 (1)(f), which is specified in the Health Notice at the time of writing as the power to quarantine everyone at home, and prevent them moving from their home unless for shopping or exercising it says:

require persons, places, buildings, ships, vehicles, aircraft, animals, or things to be isolated, quarantined, or disinfected as he thinks fit:

The act to “require” is a restraint, a lawful intrusion. To “require” must be evidence based, to be disinfected a place or person must be infected.  It follows logically from section (a) above, the declaration of insanitary comes before the “require”. It isn’t a stretch to see that a person or building should be named in a health notice.

This all applies to a private workplace the same it does a person. I suspect that Police and the Medical Officer might have a case for damages to answer for many small to medium businesses that were closed down.

Bring this back to the parallel of an Arrest or Search Warrant. The warrant must pass an evidence test and the resultant document is specific to the person named. The Health Notice follows the evidence, or even permits its collection, it doesn’t precede it.

In Section 70 (1)(m) of the act we see that the power rests to act at a district level, not a nation wide lock down as has been done.

by order published in a newspaper circulating in the health district or by announcement broadcast by a television channel or radio station that can be received by most households in the health district, do any of the following:

If I was still serving as a Police Officer I would be very concerned that the nationwide lockdown, as ordered, would be asking me to arbitrarily quarantine people, or restrict their movement, without evidence. That would be asking me to breach the public’s civil rights, and their expectation of me to conduct myself at all times professionally and lawfully. I would be worried about the longer term effect such a breach of trust might have on my partnership with the wider public. One adverse effect I am seeing is a culture of informing on your neighbours developing, something I’ve read about as a feature totalitarian states. How easy could it be for society of move in that direction?

I’m concerned The Police are acting as the coercive arm of the state. I don’t want to live in a Police state. I don’t want government interference that undermines the basics of good community policing as laid down by Robert Peel.

The Health Act is a tool that gives special powers and tools to manage an epidemic. The power to collect evidence, and act upon that evidence. This is a power to act locally on a case by case basis, quarantining and isolating if necessary. Contrary to some other legal opinions circulating my belief is the Health Act is fit for purpose. Management doesn’t mean lockdown the whole country, I believe that is just lazy, unlawful, and unprofessional.

Police appear to be acting unlawfully in limiting peoples movement, and in some cases arresting and charging people. Police stepping beyond their powers is most uncivilised and precarious situation for society to be in. What step might be taken next to restrict peoples freedom?

Now I am not a lawyer, and it is quite probably I have overlooked some aspects of the law. However the analysis of professionals in the field do give me confidence I am rationalising this at the correct level. The right to freedom isn’t hard to understand. I also think it is about independence of Police and Medical authorities. I think it is about professionalism in using the law correctly in a measured and appropriate way.

From “The Nine Principles of Policing”:

To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour

To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police

To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary, of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.

Jason Stewart is a combustion engineer specialising in solid fuels, and comments on interest.co.nz as Scarfie. Prior, he had careers in both the RNZAF and the NZ Police in a varied background. He was also engineer on the vessel Ady Gil that was hit during protest action in 2010.