Disaster law specialist concerned about 'mixed messaging' by police during COVID-19 lockdown

A disaster law specialist is concerned about police sending "mixed messages" to the public during the COVID-19 lockdown, by using 'discretion' when it comes to people not complying with the rules. 

Police Commissioner Mike Bush has said police will use their discretion when it comes to people who do not comply with alert level four restrictions, and that has raised concern with an expert who says the public deserves more clarity. 

Canterbury University Professor John Hopkins told the Epidemic Response Committee on Thursday that relying on the discretion of officers is "not sustainable" and "risks conflict" because of the potential of "mixed messaging".  

Prof Hopkins said the rules police are going by should be made available to the public, and once they are available, they should be scrutinised by lawmakers "making them more likely to be accepted by the public". 

He acknowledged that emergency situations require a level of discretion, but that as New Zealand moves out of the emergency phase, the Government needs to plan a more permanent structure of social distancing, rather than relying on emergency regulations. 

"We're now settling in for the long-haul, and we need to step away from the emergency phase," he said, emphasising the need for clear rules that are justifiable and the public can clearly see. 

The Government triggered a state of national emergency under the Civil Defence and Emergency Management Act (CDEMA) on March 25 – which was extended this week - giving authorities special powers to manage the coronavirus outbreak. 

Prof Hopkins has pointed out that while such declarations have been made before - such as in 2011 after the Christchurch earthquake - the powers utilised in this case are extensive, as they coincide with the Epidemic Preparedness Act 2006, to place the whole country in quarantine. 

The three main acts that exist to give the Government powers during an emergency include the Health Act 1956, Civil Defence Emergency Management Act 2002 and the Epidemic Preparedness Act 2006.

The Health Act 1956, for example, allows the Government to require people to be isolated, quarantined or disinfected, force people to remain where they are, and requisition equipment, vehicles and buildings. 

"It provides for extensive powers to be exercised by public officials without regard for the 'ordinary' rules of New Zealand law," Prof Hopkins wrote in a recent opinion piece.

"Under the current state of emergency the Government has not, as yet, created such clear legal guidelines and rules."

The Police Commissioner spoke to the group of lawmakers after Prof Hopkins, and said he found the expert's commentary "very helpful".  

"In terms of discretion, we always operate in that environment," Bush said. "Our people have good guidelines on how to apply that discretion. The important thing with discretion is that it is always applied wisely and evenly."

Opposition leader Simon Bridges, who chairs the 11-member Epidemic Response Committee, asked Bush if the guidelines will be made available to the public. 

Bush said before he commits to that, he will take advice from the Solicitor-General. 

"We know this lockdown is hugely stressful for many New Zealanders," Bush told the committee. "We're being very purposeful in our response."

He said in terms of compliance, the majority of New Zealanders are "doing an outstanding job" and that enforcing the lockdown rules with arrests is a last resort. 

The Government recently announced a new way for the public to dob in others not following the lockdown rules, and the website crashed with thousands of people flooding the platform with complaints.  

Bush said he's aware that some Kiwis do not fully understand the lockdown rules, with some members of the public reporting others who have simply walked passed or were seen jogging. 

"People are allowed to do this," Bush said. "Our sole purpose is to work with the public to ensure people comply."