Police have important additional powers but mustn’t abuse them

Open Letter to The NZ Police

From: Catriona MacLennan

Dear New Zealand Police, Aotearoa has not given you a blank cheque for your response to Covid-19.

These are unprecedented times and the government on 25 March made a State of National Emergency declaration – only the second time in New Zealand history that this has been done.

Authorities now have the power to close roads and public places; regulate land, water and air traffic; evacuate any premises; and bar people or vehicles from any premises or places.

It is hard to get our heads around the extent of these powers. They are not something most New Zealanders have ever imagined.

Despite that, most Kiwis understand and accept the decisions the government has made. An overwhelming majority of the population has accepted massive restrictions on daily life and the sweeping away of civil liberties and freedoms.

You, the New Zealand police, will be the most visible figures exercising and enforcing the new emergency powers. Police Commissioner Mike Bush explained this by saying that people would be greeted by the “friendly face” of the police during the four-week lockdown.

But, already, there is cause for concern.

A number of instances of what appears to have been heavy-handedness on your part have been reported and there also appears to be a lack of consistency in the way you are exercising your powers.

New Zealanders realise that it is extremely frustrating for you to deal with numerous people who are flouting the lockdown and refusing to comply. But it is not legal for you to come down hard on people simply because you are annoyed that enforcing the lockdown places your own health at risk.

Similarly, it is understandable that Bush said it would pay for essential workers to carry work identity cards or letters from their employers.

That makes it quick and easy for the police to see that someone should be out and about. However, you need to remember that there is no legal obligation for any New Zealander to carry such information. That means that people cannot be forced to carry such documents and it is not an offence to fail to do so.

You and other agencies need to swiftly standardise your advice about the fine detail of when people can and cannot leave their homes. Your bosses must then ensure that all staff on the ground are clear about the rules.

You need to remember that you can only police the country effectively with the consent of the public.

Contradictory messages and over-the-top enforcement will rapidly erode public goodwill and result in increasing failure to comply.

In turn, that will raise the spectre of order starting to break down. New Zealand does not want to go there.

You need look no further than the six-month trial of armed police patrols, which began in Counties Manukau, Canterbury and the Waikato on 28 October to understand why some New Zealanders are worried about the way you are exercising the pandemic emergency powers. When the pilot was announced, Bush told the public that the changed operating environment since the Canterbury mosque shootings, the impact of methamphetamine-fuelled offending and the growth in organised crime were the reasons for establishing the rapid reaction armed teams.

But figures released in early March 2020 showed that the units were deployed 75 times a day in their first five weeks. That is a staggering figure and means the teams were called out at 50 times the rate that Armed Offenders Squads were last year.

It is extremely hard to credit that this is necessary.

The public was accordingly already anxious about mission creep in your use of armed teams. The sudden conferral of wide-ranging new powers on officers arising from Covid-19 exacerbates that worry.

For Māori, the concern is even greater as they are subjected to more stops, arrests, detention and charges in normal times than other New Zealanders are.

You, the police, are there to uphold the law. New Zealand is a democracy. It is not a police state.

We, the public, will obey the new laws. But we will also be policing your use of them.

https://www.rnz.co.nz/news/covid-19/412906/an-open-letter-to-the-police-in-a-time-of-covid-19

Leave a comment

28 Comments

  1. Duker

     /  30th March 2020

    Another lawyer , sitting at her desk who thinks that the Commissioner has given a telephone book sized instructions for every instance to police constables.
    The eaxample she may be thinking about seem to be down to individuals who didnt ring the CoP on what to do.
    Its ‘lawyer thinking’ that every nail can only be driven in by a legal hammer, every problem has a legal answer and every action is exactly prescribed by law

    Reply
    • Alan Wilkinson

       /  30th March 2020

      Nonsense. The lawyer is just emphasising what I just told you. The constitution and law does not give the executive and police carte blanche.

      Reply
      • Duker

         /  30th March 2020

        Reviewable , is as I explained, a procedural thing, not really covers a policeman who tells you to turn around and go home , or a specific industry is non essential

        Reply
        • Alan Wilkinson

           /  30th March 2020

          You are just wrong as we will see if the Government or police overstep their powers.

          Reply
  2. Gezza

     /  30th March 2020

    I think that Jacinda has done a good job of trying to ensure that where issues are arising there is consistency in the government’s approach & if necessary changes in policy or practice are well-communicated.

    I think that letter to the NZ Police is worth their consideration if there is confusion & inconsistency in their individual officers’ or commanders’ approaches to common situations.

    Police communication with their forces should be ongoing in the same way. I have a lot of respect for our cops; they have a lot of shit to cope with every day on a normal day. I would hate to see them getting turned on by an irritated public any for unnecessary heavy-handedness by some individual overworked officers under stress, or by some having this untrammelled power go their heads.

    Reply
    • Alan Wilkinson

       /  30th March 2020

      The rules need to be reasonable, proportionate and consistent. I don’t think they’ve got there yet.

      Reply
      • Gezza

         /  30th March 2020

        Yes. And Mike Bush’s efforts so far seem to have been to talk tuff – not talk sense. I don’t rate the guy.

        Reply
        • Alan Wilkinson

           /  30th March 2020

          Agree. He’s said and done some silly stuff. Rather childish.

          Reply
        • Conspiratoor

           /  30th March 2020

          G, name one in your memory who has been anything more than a mouthpiece for the GOTD. This rooster is no different

          Reply
          • Gezza

             /  30th March 2020

            Can’t do it, c. You’re right. It’s a very political position, always has been – as far back in history as we’ve had them. Claims that the Police Commissioner in NZ operates independently of the GOTD are farcical, but I’m not convinced that everyone realises that.

            I think maybe a few police commissioners in the past might’ve been less of a rooster though. These days they’re jargon-talking bureaucrats. Maybe in the past a few have been less so.

            Reply
            • Gezza

               /  30th March 2020

              Peter Doone was another rooster, but he left under a cloud.

            • Duker

               /  30th March 2020

              “Claims that the Police Commissioner in NZ operates independently of the GOTD are farcical,
              Any proof of that? Or do you have special knowledge maybe from the Masons
              I personally think the CoP should have a civilian review board to investigate and look deeper at Police procedures and decisions of a more general kind. In Ireland they do have one , and have found some major jack ups against individual officers and also that breath testing was widespread fakery to inflate numbers , ie cops must have been blowing into roadside machines to inflate counts. If there is poor oversight then senior officers can be removed other than catching Doone in the act of obstruction of a constable.

            • Gezza

               /  30th March 2020

              There have been numerous examples of Police Commissioners in NZ making unusual policy or operational decisions that were clearly motivated by the GOTD signalling its preferences. Nothing on paper, of course.

  3. Duker

     /  30th March 2020

    I tried to find any court case McLennan was involved in where the brilliance of her advocacy shone out. Nothying as i later thought shes acts for wronged women in the court of hard knocks – the family court.
    But did find a Court of appeal deciding against Insurance companies who refused to pay for specialist rental car company to charge them for a car while theirs is being repaired after a no fault of their own accident. ( Frucor v Blumberg , ie the names of the insured).
    There was some seriously crap legal arguments made by the insurance companies QC and dodgy cost comparisons provided

    But Appeal Court does canvass ‘resonableness’

    “Mr Ring’s [QC]argument that the Judge incorrectly adopted a subjective standard in
    assessing the reasonableness of Mr Blumberg hiring a replacement car from R2D is
    based on a few words in [56] of the judgment:
    Importantly, what is ‘reasonable’ in all the circumstances is not to be regarded
    with too critical an eye in hindsight, but from the perspective of what would
    have appeared reasonable to the plaintiff at the time.”
    Sure its different situation to a national State of Emergency, but with only few types of businesses declared essential ‘to open’ and good reasons given for that , as well they sem open to adding others ‘in a reasonable way’

    However some flea lawyers will take up the cause based on the Magna Carta, Treaty of Waitangi and other non relevant precedents.
    Guess what the courts will only take up urgent cases !
    Plenty of time for judges to write up previously heard cases

    Reply
    • Alan Wilkinson

       /  30th March 2020

      Unless they get really flagrant the court cases will wait till this is over and then there will be compensation settlements.

      Reply
    • “I tried to find any court case McLennan was involved in”

      This doesn’t seem to have anything to do with her letter.

      If everything anyone posted here was judged by some based on all their previous work it would be farcical.

      Reply
      • Duker

         /  30th March 2020

        “This doesn’t seem to have anything to do with her letter.”

        It was to find the work she specialized in, to see if she knows what she is talking about, It goes back to my views about “discarding opinions from people who dont know what they are talking about , but claim some sort of credentials”.
        You should consider it when deciding if self described experts thoughts are worth posting
        A family lawyer should stick to her area of knowledge. Same goes for a nano physicists or Stephen Joyce or Bill English
        After all , who has been taken to the cells for some minor infraction of the lockdown, maybe people have been told to go back home, hardly the stuff for legal redress

        Reply
        • Gezza

           /  30th March 2020

          I don’t see her claiming any particular legal expertise in that open letter, Duker. She outlines clearly issues of concern that have been reported & pleads for more consistency, reminding them they are servants of the public, not their rulers.

          Reply
          • Kitty Catkin

             /  30th March 2020

            I read that some people had actually been arrested for breaking the lockdown, Duker. Not a large number, but some. It was on MSN news.

            They can chuck people off buses if they haven’t registered their journeys. I didn’t know that I had to, so didn’t. And the registration is not, as I imagined, a one off to say that one needs to use buses, one has to do it for every damned trip.

            The police will be piggy in the middle; ordered to use the jackboots by the goverment, resented (to put it mildly) by the public if they DO.

            We were told that we could do things like walk on the beach; but now it seems that people can’t drive there. The reason for this seems a specious one.

            Reply
        • Alan Wilkinson

           /  30th March 2020

          The whole point of the law surely is that the ordinary person doesn’t have to have specialised knowledge to comply with it or be protected by it. If that is not the case it is not fit for purpose.

          Reply
  4. Pink David

     /  30th March 2020

    I you don’t want them to not abuse their powers, don’t give them them in the first place.

    Reply
    • Gezza

       /  30th March 2020

      Too late. That ship has already sailed, Pinky. So a reminder that they need to exercise them reasonably to avoid antagonising a watching public is the next best thing. At some point the Emergency be over. Public good will towards them will be needed more than ever then. They shouldn’t act in ways that cost them the public’s support.

      Reply
  5. seer

     /  30th March 2020

    When people think of Jacinda do they see the daughter of a man who served 40 years in the NZ Police? If only it was the LSD Church he belonged to!

    Speaking of police and transport, here are some intelligent remarks on COVID-19 from a Russian transport engineer. Some good words in here like nosocomial and chthonic.

    https://www.fort-russ.com/2020/03/covid-19-it-may-turn-out-that-the-world-has-been-deceived-hints-russian-military-intelligence-agent/

    Reply
    • Alan Wilkinson

       /  30th March 2020

      Good article – it agrees with much of what I have been saying! Certainly the difference between Italy and Germany is seriously weird.

      Reply
    • Conspiratoor

       /  31st March 2020

      I think the guy has nailed it. Explains Germany v italy. It seems once you get strapped into a ventilator in an overcrowded, ancient hospital you’re basically fucked. Note to self, when they start cramming the infectious into the local dhb stay well away from the place

      “I am against hard quarantines that stop the life of the city. Maybe China, with its powerful economy, can survive this, but for other countries it can end up much worse.
      I consider it more correct to protect against the risk of infection at risk, that is, the elderly and the chronically ill. This is a more effective, in my opinion, model of behavior.”

      Reply
  6. Reply
  7. Andrew Geddis: Lockdown policing can’t work well while there’s still confusion over rules

    So, the moral reasons for sticking to the announced level four rules are unarguable. And to deal with those who somehow just don’t get it, we’ve collectively empowered our police to wield extraordinary authority over our daily lives. They can stop us at random in public place to check what we are doing, then tell us to stop doing it and go home if it is not permitted. They can enter into our homes if they suspect we are gathering with people outside of our “bubble” and order any such people to leave. Ignoring such orders can result in arrest and potential prosecution. They have such powers because without them, “free riders” on our collective endeavour to defeat Covid-19 could render the whole exercise fruitless.

    Yet, here’s where there’s a “but …”. All of the above depends on knowing just what are “the rules” that we all should be following. And it’s fair to say that there remains a degree of confusion regarding at least some of them.

    don’t want the above to be seen as an attack on the police, who along with other front-line personnel face an extraordinarily stressful next month. But the very stress that they will be under actually strengthens the need for some clearer guidance in this area. It seems only fair that we can collectively avoid creating situations where we may inadvertently run into conflict with them by “doing the wrong thing”. And to do that, we need to understand what “the wrong thing” is.

    So, here’s what I’d like to see happen. Police officers will have been issued with instructions by the commissioner and controller of Civil Defence, telling them how they should be using the powers given to them under emergency legislation. Those instructions are now, in effect, the laws under which we live (given that they guide the very broad discretion that individual police officers have at their disposal).

    I think any such instructions ought to be made public. Then we can know what it is that officers have been told they should (and should not) do with their powers, which will in turn help to determine if those powers are being exercised by different officers in an arbitrary fashion. And we also can collectively scrutinise those instructions to check that they really are only imposing proportionate limits on our rights.

    Because while Covid-19 creates unprecedented times for us, there are some basic truths that don’t change. One of these is that we need to trust and care for each other if society is going to work. Another is that unscrutinised power is never a good thing. So, let’s try and find a way where the rules of our “new normal” can be made to work consistently with those truths.

    https://thespinoff.co.nz/politics/30-03-2020/lockdown-policing-cant-work-well-while-theres-still-confusion-over-rules/

    Reply

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