Photo: Cam McLaren/Getty Images
Photo: Cam McLaren/Getty Images

OPINIONPoliticsMarch 30, 2020

Lockdown policing can’t work well while there’s still confusion over rules

Photo: Cam McLaren/Getty Images
Photo: Cam McLaren/Getty Images

When officials – including police themselves – don’t seem clear on the rules around movement, it makes it harder for everyone to do the right thing, writes Andrew Geddis.

Aotearoa New Zealand has committed to trying to eradicate the virus that causes Covid-19 from its shores. To do that, as a society we’ve moved to level four. That means adapting to unprecedented restrictions on our personal freedoms, particularly to our rights to move freely and associate with friends and family.

We now have a collective responsibility to adhere to these restrictions. If we don’t, a lot of people likely will die well ahead of their time. I’m going to go way out on a limb and say that this is A Very Bad Thing to have happen. Also, if we don’t, then the level four restrictions will remain in place for a lot longer than otherwise. That means non-compliers are effectively stealing time and experiences from our fellows. For instance, at level four people don’t get to go to the funerals of their loved ones, or stay with their newborn children, or do many other irreplaceable things that make living life so valuable.

So, the moral reasons for sticking to the announced level four rules are inarguable. 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 places to check what we’re doing, then tell us to stop doing it and go home if it’s not permitted. They can enter into our homes if they suspect we’re 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 futile.

Yet, here’s where there’s a “but …”. 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.

There are then other examples. Saturday’s One News bulletin at 6pm had a story that interviewed cyclists high in Christchurch’s Port Hills, saying that they were “pretty much getting it right” with their actions (here at 17’02”). But my friend’s partner was stopped by a police officer while cycling on the Peninsula Road in Dunedin and informed that as his 8km ride took him too far, he should stay within a kilometre from his home “and just do laps”.

Now, I fully recognise that locking down an entire country is not an easy exercise. Having never done it before, there are bound to be teething problems. A degree of uncertainty inevitably will prevail at first. However, confusion like the above is problematic for at least two reasons.

First of all, we’re facing at least a month of such restrictions on an absolute best-case scenario. In all likelihood, many of us will be living under them for much longer than that. If we collectively are going to abide by them, we can’t rely just on having police out there to enforce them. We have to accept their legitimacy and voluntarily stick to them ourselves.

It’s a lot harder to do that when the new rules seem like somewhat arbitrary interventions in our lives. To the degree they “don’t make sense”, they will be that much less effective in practice.

Second, the constraints that are being put on our activities involve very significant limits on our legislatively guaranteed rights as individuals. In order for those limits to be justified (and hence, lawful), they must be “prescribed by law”, “proportionate”, and “not arbitrary” in application.

At present, the extent of those rights limits largely are being determined by individual police officers in their interactions with particular people. That is because most of the legal powers the police are exercising are found in the Civil Defence and Emergency Management Act 2002. And those powers are framed in broad discretionary terms: “a constable… may direct any person to stop any activity that may cause or substantially contribute to an emergency.”

One problem with this approach is that there is evidence not all police officers actually know how they are supposed to be exercising these statutory powers in a level four environment. In a Stuff article, journalist Damian Christie recounts how a police officer harangued him while he was out driving as part of his ‘essential service’ work (with a letter to confirm this). Yet that’s something that we’ve been told it is OK to do. Another problem is that individual interpretation of the level four rules, subjectively framed as they are, will differ markedly. One officer’s ‘staying local’ to exercise will be another’s impermissible straying beyond the bounds.

That then raises real rule of law concerns. Sure, the concept of ‘perfect predictability’ in our law is something of a mirage. But we need to have some way of knowing in advance what the law does and does not allow us to do. Otherwise, we live under what Jeremy Bentham once termed “dog law”; rules that we only discover we’ve broken when hit over the snout with a rolled-up newspaper (and all complaints about animal cruelty can be directed to the early-19th century).

I 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.

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.

Keep going!