Contrary to claims, there is a sound legal foundation for community checkpoints organised by iwi, write legal scholars Max Harris and Professor Emeritus David V Williams.
New Zealand’s response to the coronavirus crisis has involved significant community cooperation. Household bubbles have observed physical distancing rules. People have helped each other understand what’s prohibited at level 4 or level 3. Government agencies have worked closely with the community to identify risks and keep people safe. The result has been a substantial reduction in community transmission of Covid-19, and an approach that’s been praised internationally.
One part of the community response has been the organisation of community checkpoints by Māori in areas with existing or historical health risk. For example, Te Whānau-ā-Apanui in the Bay of Plenty and Ngāti Porou on the East Coast have worked with local decision-makers and police, to support limits on travel, protect at-risk communities, and uphold public health controls.
As Tina Ngata, one of the organisers of a checkpoint, has explained, people running these checkpoints in areas with significant Māori populations have recognised the historical reality that Māori have been particularly affected by past epidemics. Māori were hit the hardest by the influenza pandemic in the early twentieth century. Māori suffered heavily: their overall rate of death was nearly 50 per 1000 people, more than eight times that of Europeans, and entry points to manage traffic were set up then. These checkpoints worked to limit the spread of influenza, in particular in Coromandel and Te Araroa. The recent checkpoints also reflect the increased health risk faced by Māori today: a 2016 report on Ngāti Porou health showed the area’s mortality rate was 1.7 times as high as New Zealand’s mortality rate.
It is right that we are self-critical as a country about our response and that we ask questions about how it might be improved. But these community checkpoints, organised by Māori communities, have been targeted with especially heated criticism by members of the National Party and Act Party.
The next claim was that the community checkpoints are unlawful. At an Epidemic Response Committee National Party leader Simon Bridges said checkpoint operators were not acting “anything but unlawfully”. Bridges said “from the common law … to every other law, this is unlawful.” “This is Law School 101,” Bridges asserted.
One of us has been teaching Law 101 for a number of years. What Bridges said does not align with our understanding of the law.
Police Commissioner Andrew Coster – New Zealand’s most senior police officer – has made it clear that he has a different view from Bridges on the law. He said to the Committee that it is a “mischaracterisation to say” the checkpoints are unlawful. Commissioner Coster, a law graduate and member of the police since 1997, said that checkpoints are operating with a police presence and “are not unlawful as they are operating at present”.
One of the key principles of the Policing Act is that the police should have “a local community focus”. Another section in the Act acknowledges “that it is often appropriate, or necessary, for the Police to perform some of its functions in cooperation with individual citizens, or agencies or bodies other than the Police.” That form of cooperation with iwi and hapū appears to have occurred in these checkpoints.
The Local Government Act says “a local authority must establish and maintain processes to provide opportunities for Māori to contribute to the decision-making processes of the local authority”. Section 81(c) adds that a local authority must “consider ways in which it may foster the development of Māori capacity” to contribute to decision-making.
This background suggests it would be consistent with normal police and local government practice to allow certain communities to support public health controls.
Local government has autonomy from central government and the police are independent from politicians. The Police Commissioner has confirmed there has been “absolutely no influence” on his decisions by the government.
The general law, as background, also suggests there is no reason for central government to intervene in checkpoints.
Public health legislation, which binds the Crown, has one of its main purposes reducing health disparities by improving the health outcomes of Māori. It sets out mechanisms for health officials “to enable Māori to contribute to decision-making on, and to participate in the delivery of, health and disability services”.
The legal framework for emergencies, the Civil Defence Emergency Management Act 2002, also guides current decision-making by central government. One of its purposes is “to encourage and enable communities” to reduce risks by “identifying, assessing, and managing risks”.
The only specific offence that we have seen identified by those critical of community checkpoints is from the Summary Offences Act. This was mentioned by Simon Bridges in the Epidemic Response Committee, and Act MP David Seymour referred to obstructing movement under the Summary Offences Act.
Obstructing a public way, punishable by a fine of up to $1000, does not appear to have been committed here. It requires that a person “unreasonably impedes normal passage” along a public way, “without reasonable excuse”, after “having been warned by a constable to desist.”
Because checkpoints in operation have a supportive police presence, those operating the checkpoints are unlikely to have been warned to desist by a constable. If they had been warned, it is unlikely that they would be described as not having a “reasonable excuse” or acting “unreasonably” given the current public health risk and past experiences of the relevant communities.
Maybe Simon Bridges and other National or Act MPs have other things in mind when they say checkpoints are unlawful.
If they think the checkpoints restrict people’s freedom of movement under the New Zealand Bill of Rights Act (which applies to citizens as well as government), the Police Commissioner says no movement has been restricted by checkpoints. The police minister has stated the checkpoints are not roadblocks. Even if movement was interfered with, that right is subject to reasonable limits prescribed by law: the public health risks and need for protection of communities, acknowledged by existing legislation and directions, are likely to be judged to be a reasonable limit.
Perhaps Simon Bridges thinks citizens could sue each other under the law of nuisance. But this requires balancing interests, and unreasonable interference with comfort and convenience. Community cooperation with other actors is unlikely to be judged unreasonable for reasons already given. Also, several court decisions have confirmed that tikanga Māori forms part of the common law (law made in the courts), and is relevant to balancing exercises like this one. Māori communities’ interest in protecting their mana and wellbeing would weigh heavily on one side of the balance.
If oppponents of the checkpoints think the operators are in violation of level four lockdown orders, there is also a good argument that operators – working in cooperation with public agencies – are an “entity involved in Covid-19 response” and “enforcement”, in accordance with government guidelines.
An alternative way to justify the checkpoints is under Te Tiriti o Waitangi, which guarantees Māori tino rangatiratanga alongside Crown government. Iwi and hapū protecting their rohe (tribal areas) have explicitly invoked tino rangatiratanga, and the checkpoints have been described by lawyer Julia Whaipooti as a “practical expression of the Tiriti relationship”, a point also made by a Human Rights Commission report.
Legally Te Tiriti o Waitangi could be said to be relevant to how the law is interpreted because of the context of public health and local government legislation, both of which mention the Treaty. Past courts have said “the Treaty is part of the fabric of New Zealand” and is “part of the context” in which law is interpreted. On this view, MPs like Gerry Brownlee are wrong to see community checkpoints as “private sector roadblocks”. They don’t just involve private individuals setting up checkpoints, but hapū and iwi playing a particular role under Te Tiriti o Waitangi. The success of these hapū-resourced community checkpoints may provide useful food for thought in future conversations on the constitutional status of Te Tiriti.
It is important that action taken in response to Covid-19 is lawful. But we should all be responsible in our public statements, and ensure we get the facts – and the law – right.
Whichever legal approach is taken, the law is not as black-and-white as Simon Bridges suggests. Our view is that there is a sound legal foundation for community checkpoints.
The checkpoints have been an important part of the community recovery. They appear on the East Coast to have reduced excessive travel, likely lowering risk. They also have broad public support: a petition recognising their value has attracted around 5000 signatures, with a high number of signatories from Auckland, Wellington, and Te Waipounamu (the South Island). We think for legal reasons and for reasons of community safety the checkpoints deserve that broad public support.