First nine days of lockdown unlawful, but justified

A court decision has found that the Government breached the New Zealand Bill of Rights Act 1990 in the first nine days of the lockdown.

So, what happened?

A three count complaint was made that the Government did not act within the scope of the law during lock down. Andrew Borrowdale took the Government to court, aggrieved that his rights of freedom of movement and freedom of association were being infringed on during lock down. His first point regarded comments made by Prime Minister Jacinda Ardern and other officials concerning the announcement of lock down and its onset. His second related to three orders and how they were linked to each other.

In short when New Zealand went into lockdown at 2359 hours on 25 March 2020, the Government had overstepped the order of the Director General of Health, Dr Ashley Bloomfield that forbade congregating except with social distancing.

This is to say that whilst the New Zealand Bill of Rights Act 1990 was breached by the lockdown for the first nine days, the rapidly evolving COVID19 situation meant that the Government was left with little choice but to act rapidly. Whilst staying in our homes was not a legal position until 03 April 2020 it was one that was found to be justified, reasonable and proportionate to the emergency as it stood at the time.

However only on this count, article 1, of the case laid, did the Court find in favour of Mr Borrowdale. The other two counts were dismissed.

Unsurprisingly this has drawn an angry reaction from the Opposition in Parliament today who attempted to suggest that the Government is a body with two arms but does not know what each arm is doing. However one could argue that the Government, in a time of unprecedented urgency where New Zealanders were being put on an emergency footing that had not happened since World War 2, if at all, literally did not have the time to go through and double check their legal footing before it became necessary to lock the country down.

Some will call this evidence that the Government cannot and should not be trusted with anything. But many of these are the same people currently promoting conspiracy theories around the COVID19 response when there is plenty of evidence that New Zealand’s success stems in no small part from reacting as we did. Yes, in hindsight the Government should have taken a bit longer to confirm the legal ground that it was standing on, but if we had waited another week or however long before putting lock down into effect, perhaps we would have a three digit death toll instead of 22.

That is not okay.

“Defund the Police” movement needs a reality check

Over the last few days in the wake of the George Floyd riots in the United States and the at times callously excessive Police counter response, there have been numerous calls for the defunding of the Police force there. The calls, which have come from activists, in part seem like a knee jerk response to the violence. In New Zealand some calls for similar have been made as well.

However there are some basic, yet key points that need to be acknowledged, which go towards undermining a potentially knee jerk response to the worst violence to engulf the U.S. in decades.

First, New Zealand is not the United States. The internal policing environment here is markedly different from that of the United States, as is the training regime for the Police, the accountability of their officers, and the public expectations on them as a law enforcement organization. I’ll happily have the New Zealand Police over the United States Police any day of the week. For the vast majority of New Zealanders being a Police officer is still a respectable occupation, and the New Zealand Police force when lined up against those of other O.E.C.D. countries is still very well regarded.

Second a significant problem in the United States that we do not have here is the Second Amendment and the associated problems with controlling the domestic arms trade. There are several notable law enforcement issues that go with the Second Amendment that I will address later as well. Just a few of the major issues with the Second Amendment are below – there are others:

  • It was written at a time when large parts of the American border regions were largely lawless; when frontier towns often dealt with outlaws and – correctly or incorrectly – thought that only the ownership of a firearm would help them ensure their property rights and lives were kept intact
  • No uniform nation-wide protections such as licensing; restrictions on certain weapon types and measures to to stop those with mental illnesses, records of past threats to commit violence and so forth
  • The N.R.A. – an organization that has a toxic level of dislike for individuals, organizations and even countries that do not promote their gun-toting views on gun ownership; the N.R.A. actively fuel division and show little or no regard for shooting victims

Third, American police culture, training, accountability at all levels have systemic issues. It is well known that U.S. Police have a lower threshold for the use of firearms than New Zealand Police. New Zealand Police, perhaps a result of being in a smaller country with less of a range of officer backgrounds have a culture that perhaps seems more able to adapt to change than the culture of the U.S. Police. Unless an offender is armed and/or on drugs and/or unable to be controlled using non lethal means such as pepper spray, baton and Taser, New Zealand Police avoid the use of firearms generally. That is not to say that New Zealand Police do not have issues – we most certainly do, but the fact that the New Zealand Police have given up on the Armed Response Team trial after a massive outpouring of concern tells me that they are considerably more responsive to public concerns.

So, to conclude, I am not going to support in any way the movement to defund the Police. I think in the United States, those places that do try to defund their Police forces will wind up regretting the move and wish that they had maintained them, albeit within a stronger, more accountable and community friendly framework than the one that currently exists.

The New Zealand Police are on the whole better than their American counterparts. The internal culture change needs to co-driven by both U.S. Police and public expectations. But defunding the Police will help no one here, just as it will not help anyone in the United States.

Police get the message: Armed Response Teams not wanted

For nearly two decades now, there has been a debate about the necessity of arming frontline Police officers in New Zealand. The debate has ebbed and flowed. In the 5-6 years prior to the 15 March 2019 mosque attack which left 51 people dead and another 40+ wounded, the debate began to pick up, exacerbated by frustrations at a perception that violent crime was increasing in New Zealand.

The perception was fuelled by a surge in armed hold ups of bars, restaurants and other places, usually around closing time or when no customers were about. In a few brazen cases, during peak Friday night trading and in a couple of cases, firearms were presented and discharged. Members of Parliament, usually in reaction to feedback from the electorate would try to show that they are trying to push the matter, would demand action in Parliament by calling for armed Police.

Following  the Christchurch mosque attacks, the Police, in a bid to show New Zealand that they were prepared to deal with any armed threat. The intention of the trial might have been, good, but there was one massive problem with it. Non-Maori/Pasifika people largely supported the trial. A break down by ethnicity showed that Caucasian New Zealanders largely supported the trial and hoped that it would become permanent.

But there was a segment of community that was not actively consulted and whose response starkly contrasted with the response from others. This was the Maori and Pasifika communities, who disproportionately represent New Zealand in crime statistics. Some have argued – and no doubt some will continue to argue, even when confronted with the facts – that they get what what they deserve and it is not New Zealand’s fault that they find themselves looking down a Police gun from time to time.

Except that that argument fundamentally broken. It is fundamentally ignorant and whomever continues with it, is part of the problem in that crime in large part is a consequence of coming from circumstances born out of a deprived living environment. I am talking about an environment where basic items such as food and medicine are not affordable; rent eats nearly the entire weeks wages before a cent is spent on anything else. Education becomes a low priority, and school leavers have little support into work.

A survey run by Action Station turned out some truly disturbing statistics. 1155 Maori and Pasifika people participated in the survey. Of that:

  • 85% did not support the Police Armed Response Trial
  • 87% felt unsafe when armed Police are in their neighbourhood
  • 91% said that they would not call the Police even in an emergency

Yes, you read that correctly. Even in an emergency. Which pretty much ensures that the suspects will be able to get away and offend again; which shows a systemic break down in communications and trust between these communities and the Police, and goes some way towards explaining the contribution of Maori and Pasifika to criminal statistics.

And there was more. It was found that Police were nine times more likely to turn a gun on Maori or Pasifika and 13 times more likely to turn loose a Police dog on the same groups.

So, I commend the New Zealand Police for getting this message clearly. It is not to say that they should work unprotected and no realistic person would expect them to do so, but it is to say that a potentially hugely divisive measure has been rightfully binned. And for that, New Zealand is grateful.


The case for voting YES in cannabis referendum

At the General Election of 19 September 2020, there will be a referendum on whether New Zealand should legalize cannabis.

There are numerous reasons why I am voting yes in the 2020 referendum on the legalization of cannabis. In the article following I lay out those reasons and explore some of the side issues around cannabis in New Zealand:

  • Low level cannabis offences take up police time, resources and tax payer money unnecessarily
  • The justice system is unnecessarily clogged with the resultant prosecutions from those offences
  • Minister of Justice Andrew Little has announced a probable regime that would be implemented should the referendum return a YES vote, which focuses on reducing harm
  • Recognition of need to address cannabis addiction as medical issue and not a criminal one

The regime that Mr Little has proposed, the regulatory regime would have the following provisions:

  • A minimum age of 20 for purchasing and using cannabis products
  • A ban on all marketing and advertising of cannabis
  • Requires harm minimisation messaging to be on products
  • No public use, but confined to homes and regulated premises
  • Restricts cannabis sales to physical stores
  • Regulations on the potency of cannabis products
  • A person over the age of 20 will be able to grow two cannabis plants on their property
  • Individuals will be able to carry up to 14 grams of dried cannabis in public places

Mr Little says that it will be an education and health based regime for those with addictions, assuming that they are willing to enter a treatment centre.

More critically we need to acknowledge as I have mentioned in the past that the “War on Drugs” has been an abject failure. It has driven the cannabis market underground and in doing so it has enabled growers, synthetic cannabis importers and others wanting commercial gain from growing it to thrive in a market that has no regulation and attracts the worst in society.

One of the more damaging aspects of cannabis in New Zealand and around the world has been the rise of synthetic cannabis or “synnies”. These are much stronger and more debilitating than regular cannabis, and can render users zombie like where they appear to be completely detuned from what is happening around them. Many of the users are some of the most vulnerable elements of society with no family, support networks or means of finding work, their drug use can lead to – in the case of women – being forced into prostitution to earn money.

On the whole I like the regime that Mr Little is proposing to implement if the referendum returns a YES vote. I do have concerns though about cannabis being grown on private properties, due to some of the secondary activities and behaviours that tend to be associated with drug manufacture. Specifically I am thinking of the tendency to have firearms, the construction of structures that will impede lawful surveillance and law enforcement; also the coming and going of people with connections to the criminal underworld, prostitution and gang activity.

So whilst I will be voting YES, I acknowledge that there is more work to be done yet on these reforms and I look forward to seeing what the final plan will look like.


Why I am grateful for the New Zealand Police

Over the last 72 hours I have watched coverage of the death of a black American named Floyd George, who was arrested in Minneapolis and pinned to the ground by an officer who placed a knee on his neck. Mr George lost consciousness and later died in hospital. Widespread outrage at the latest example of police violence in the United States, which has led to business premises being torched in Minneapolis and reports of disturbances in Los Angeles, have reminded me why I am extremely grateful that I live in New Zealand.

Whilst the vast majority of American police officers are probably honourable men and women who just want to protect their communities as best as they can, the American police force at all levels has several major ingrained problems:

  • It is trigger happy
  • The militarization of the force

There is no doubt that the U.S. police force have a lower threshold for the use of firearms than in New Zealand. Nor is there any doubt that the tendency to shoot first and ask question’s later has had some bad outcomes. An Australian lady was shot dead when Police arrived to respond to a suspected rape that she had just reported. In another case, Eric Garner was shot dead by an officer later found guilty of murder.

In recent years, the U.S. police force has been given access to armoured personnel carriers, sniper rifles and other equipment generally reserved for military use only. The militarized nature of the equipment and its deployment in places with large black populations following controversial police actions, has caused significant tensions in recent years.

Is this to say though, that the New Zealand Police are perfect? Of course not. They have had their moments when they have done things that have had significant fallout.

I am reminded of two big failures in 2007 that elicited substantial negative public reaction around the country and reminded the Police that they needed to lift their game. One was the case of police officers who allegedly raped a lady named Louise Nicholas. Ms Nicholas was a young adult when three Police officers allegedly went to her house for non-consensual sexual intercourse. Whilst they were acquitted, it brought significant light onto several corrupt officers who were fired, and one jailed for obstruction of justice.

The other big failure of the Police was in 2007 when in testing the counter terrorism suppression laws, raids were conducted around New Zealand. They were response to an alleged paramilitary camp that was supposedly training individuals for an Irish Republican Army type guerilla war to form an independent Tuhoe nation based on ancestral Maori land in the Urewera mountains. These acts were in numerous cases found to have breached peoples civil rights and there was a significant uproar about it. In Christchurch I knew of activists who were at home studying for university exams when Police turned up demanding to search their flat, looking for a man who had been invited to attend the paramilitary camp. They asked to see the warrant and when none was produced, were told to leave. In the North Island, raids occurred around Ruatoki, near the Urewera’s, with 17 arrests. Most went free after it was found the charges were inadmissible.

At the other end of the scale, respect across the country mushroomed in light of the 2019 terrorist attack on mosques in Christchurch, where 51 people were murdered.  On that day Police responded to the attacks within six minutes and were able to apprehend the suspect, who pleaded guilty to all charges earlier this year. Two police officers rammed his car as he drove to a third mosque with the intention of attacking it. Further adding to the respect was the enormous compassion and sensitivity that they displayed towards the victims of the attack.

People on social media sometimes accuse the Police of having a vendetta against them. I have to ask what their background was. Did at some point in the past they have an interaction with the Police caused by them doing something they should not have? Maybe the Police response was over the top – I certainly know of cases where this has happened, but did the complainants ever take their complaints to the Independent Police Complaints Authority, and if so, what did the I.P.C.A. say?

On occasion we hear of Police officers being rude when first. The very vast majority of them are polite and considerate, but one needs to remember that they might have just come from having to deal with someone who resisted arrest or had to break up a domestic assault case.

So, as we watch the growing violence following the death of Floyd George, we here in New Zealand can be very grateful for the restraint and compassion that our force displays.