Coronavirus (COVID-19): international policing responses - part 2 - easing of lockdown

New Zealand

Main points

• The legality of police enforcement powers at various stages of the COVID-19 alert system are subject to ongoing public interest in addition to political and legal debate.
• When there were restrictions on movement, a number of Māori communities established their own local checkpoints. The police opted to cooperate, providing a lawful presence, an approach which drew both praise and criticism. All checkpoints were closed down under Alert Level 2
• During the days immediately following the move out of lockdown, the police received a large number of reports of mass gatherings
• Police and support organisations have raised concerns that there may be an increase in reporting of domestic abuse following the easing of restrictions as people are freer to report incidents, seek support and as schools reopen
• Police have published their operating guidance as each Alert Level is activated
• Police significantly increased their prevention activities and targeted organised crime gangs whilst usual demand for policing declined during Alert Levels 3 and 4

Current situation

At 11:59 pm on 8 June, New Zealand moved to Alert Level 1, the lowest level of restrictions. The move to Level 1 was earlier than initially planned^[180] and followed 17 days of no new reported cases, resulting in no active cases of COVID-19. At Level 1 'everyone can return without restriction to work, school, sports and domestic travel, and you can get together with as many people as you want.'^[181] People are encouraged to continue to keep track of where they've been and who they've seen, in order to assist with contact tracing if its required. New Zealand's borders remain closed to almost all travellers apart from returning Kiwis and their families. Those entering the country (including citizens and residents) are subject to health checks and mandatory 14 day managed quarantine or self-isolation. People are advised not to travel overseas.

Key challenges

Legality of police powers

Questions surrounding the legality of police action during Levels 3 and 4 of restrictions continue to be raised. Leaked emails from Deputy Commissioner Mike Clement, suggested that the police lacked the necessary powers to enforce the lockdown when it was initiated on 25 March.^[182] However Police Commissioner Andrew Coster has since stated that he is confident that the police acted lawfully during this time and that they had the necessary powers to tackle '…repeated, persistent breaches of directions given by the police' through the existing Civil Defence Emergency Act.^[183]

In purist of clarity and to allow for a more proactive prosecution of those breaching the lockdown rules, the Government issued specific regulations two weeks later under the Health Act. However concerns persist. Crown Law advised the police on the powers available to them, but despite several requests by the Epidemic Response Committee, the Attorney-General has yet to release the advice given. The disconnect between the lockdown restrictions and policing powers in the early days, are said to have led to a feeling of vulnerability amongst police officers.^[184]

On May 14, the COVID-19 Public Health Response Act was passed by Parliament to align with the move to Alert Level 2. The Act which was passed under urgency and without the usual levels of scrutiny, gives the police further enforcement powers, including the right to enter homes without warrants while enforcing COVID-19 restrictions.^[185] The Act established a legal framework for the COVID-19 Alert Level System and effectively allows the Health Minister to issue an order that would make any alert level rules legally enforceable by the police.^[186] While the government has stated the new legislation represents a narrowing of police powers available under Alert Levels 4 and 3,^[187] both the process by which the legislation was passed and the powers it furnishes, have been subject of much criticism and debate including from Human Rights groups, politicians and legal experts, with it described as an "overreach of powers" and a 'failure of the democratic process'. Consequently, the operation of the Act has been referred to parliamentary select committee for review and scrutiny. The review is open to public submissions and will report to Parliament by 27 July, to coincide with the first mandatory 90 day refresh of the legislation.^[188],[189]

Māori checkpoints

During Alert Levels 3 and 4 when there were restrictions on movement, a number of Māori communities established their own local checkpoints, largely due to fears of being particularly vulnerable to the threat of COVID-19.^[190] Whilst the police approach of cooperation has been largely praised (detailed below), concerns were raised about the lawfulness of private citizens stopping others and the application of police discretion.^[191] Members of the Epidemic Response Committee also questioned the police response from a point of consistency in the application of the restrictions across all communities in New Zealand. Furthermore, whilst the number of checkpoints greatly reduced as restrictions eased, police noted that a small number of communities were still blocking access to beaches etc., actions deemed 'unreasonable' by police.^[192] The COVID-19 Public Health Response Act emphasises that closing roads and stopping vehicles can only be done by 'a constable or an enforcement officer acting under the authority of the constable.^[193]

Maintaining compliance

Police received a large number of reports of people breaching gathering restrictions after the country moved out of lockdown and into Alert Level 3. Between the 28 April and 2 May, 1,200 reports were made by the public regarding mass gatherings.^[194] Over the course of Level 3 a total of 3,519 online reports of gathering breaches were received, up from 133 for Level 4. The police issued a number of communications reminding the public of the restrictions and encouraging compliance. They were also highly visible, operating mobile checkpoints and community patrols. During Level 3, the police carried out 2,661 mass gathering checks, an increase from 15 under Level 4.^[195]

Domestic abuse

New Zealand has one of the highest rates of domestic and sexual abuse in the OECD. Incident numbers increased initially during the lockdown phase (Alert Level 4) and then returned to more normal levels. However, experts estimate the real figures to be even higher due to people having difficulty reporting, seeking help and/or leaving home during this time.^[196] Whilst police say they made multiple channels of reporting available, it is acknowledged that the restrictions did make it more difficult to report such incidents. Consequently, organisations such as Women's Refuge have raised concerns that the easing of restrictions will be accompanied by a 'surge of women coming forward reporting incidents of domestic abuse and seeking support.^[197] Such concerns seem to be borne out in police data, which shows that the number of calls for service for family harm incidents (both crime and non-crime) increased between levels 3 and 4.^[198]

Child abuse

Similar concerns have been raised about child abuse and neglect. New Zealand has one of highest rates of such incidents in the OECD and it is feared that the COVID-19 restrictions coupled with other domestic stresses, may have created a 'perfect storm', resulting in 'hidden, invisible harm occurring to children'. It is feared that a spike in reports could follow the easing of restrictions, particularly as schools and other services reopen, increasing the number of 'eyes and ears' that usually identify harm.^[199]

Black Lives Matter

Thousands of people took part in protests against racism and police brutality in early June in cities across New Zealand. Whilst organised in response to the death of George Floyd, the protests were also used to highlight the discrimination experienced by some sections of the Māori community. On 1 June, an estimated 4,000 people took part in a Black Lives Matter protest in Auckland, breaching Alert Level 2 restrictions which limited public gatherings to 100 people.^[200] The protests were condemned by politicians, especially Deputy PM Winston Peters who called for organisers to be prosecuted for flouting the restrictions. Police had a presence at the protests and engaged with those attending but took no further action. Whilst not condoning the protests, PM Jacinda Ardern defended the police handling of them.^[201]

Examples of good and/or innovative practice

Operating guidelines

New Zealand Police have published staff operating guidelines as each Alert Level is activated. The guidelines include details on the police approach, the powers available to them and the relevant regulations. The guidelines also provide a number of illustrative scenarios demonstrating how the police should handle breaches of various restrictions using the graduated response model. This 'scenario model' proved highly successful and is likely to be used more extensively in future.^[202] The release of this information followed a request from the Epidemic Response Committee.^[203]

Cooperation with Māori communities

As mentioned above, when there were restrictions on movement, a number of Māori communities established their own checkpoints, largely due to fears of being particularly vulnerable to the threat of COVID-19. Whilst discouraging such activity, police worked alongside communities where checkpoints remained, providing a lawful presence and ensuring that the right actions were being taken for people who should or should not be able to pass those points. Speaking to the Epidemic Response Committee on the matter, Police Commissioner Andrew Coster commented:

"I can say with some confidence that if we had leapt into a big enforcement approach in these locations, we wouldn't have been trying to manage checkpoints; we would have been policing tens of protests around the country that would have decreased the safety of the public and those involved."^[204] The New Zealand Human Rights Commission welcomed the police approach.^[205]

Prevention activities

During Alert Level 4 (lockdown), police took advantage of a decline in their usual demand, and increased prevention activities by nearly 100 per cent.^[206] Such actions included community engagement, having a visible presence in communities, checking on people in isolation, running checkpoints for essential travel and responding to concerns from the public. Police also carried out over 22,000 reassurance checks at essential services to assist with maintaining physical distancing during Level 4.^[207] In total, police carried out 448,226 prevention activities under Levels 4, 3 and 2 restrictions.^[208]

Tackling organised crime

Police targeted a number of organised crime gangs during levels 3 and 4 of the restrictions. A number of operations culminated in 93 arrests with 250 charges being brought. Large quantities of drugs and firearms were seized and 14 drugs labs were uncovered. The recovery of criminal proceeds also continued, with $4.4 million seized during this time. Detective Superintendent Greg Williams commented: "New Zealand Police continues to hold organised criminals accountable even through this challenging time".^[209]

Communication

Throughout the various levels of the alert system, police have made a number of social media videos with television programme Wellington Paranormal to help make the public aware of the key messages around COVID-19. The videos include details on restrictions and the circumstances under which people need to self-isolate. Police commented; "We have a powerful social media following and it's essential we use it to maximum effect during this challenging period. People have come to expect just a little humour from us, it's part of our brand, so we wanted to engage with New Zealanders on our social platforms in a campaign style they are used to".^[210] The Police have previously worked with the programme on recruitment campaigns.

Partnership working

New Zealand opted for an all-of-Government response to COVID-19, and established a multi-agency Operations Command Centre (OCC) as part of the National Crisis Management Centre led by the then Police Commissioner, Mike Bush and supported by a Police Deputy Chief Executive [Mark Evans]. The OCC was based on NZ Police systems and processes including a Joint Insights Group and a number of Workstreams led by a range of government agencies. An example of this is the Caring for Communities work stream, whereby the police provide intelligence to other agencies and departments to ensure support reaches the communities most in need.^[211]

Human Rights and Equalities considerations

Police action in response to breaches

New Zealand Police publish data on their response to COVID-19 including action taken by the police in response to breaches. Using the graduated response model, the vast majority of breaches did not result in a criminal justice response- written warning, youth referrals or prosecution. That said, looking at the latest available statistics (up to 8 June inclusive) for breaches which did result in a criminal justice response shows some geographical variations. Nationally 13% of breaches requiring police action resulted in a prosecution. This raises to 23% in the Wellington police district, followed by 22% in Canterbury and 21% in the Eastern district. At the other end of the scale, only 5% of breaches resulted in prosecution in the Auckland City and Waitemata districts.

Looking at the characteristics of the individuals involved in breaches (irrespective of the police action taken), data shows that 38% of people were of European ethnicity, whilst 36% were Maori.^[212] According to the 2018 Census, 70% of the resident New Zealand population identified with at least one European ethnicity and Maori represented 17% of the population.^[213] Almost three-quarters of people involved in breaches (73%), were male yet it is estimated they constitute 49% of the population.^[214]

Lessons learned

Policing powers

Speaking at the Epidemic Response Committee, the Police Commissioner acknowledged that in the early days of the lockdown, there was a lack of clarity for both the police (including front line officers) and public about what the policing powers were and how they should or could be used.^[215] This chimes with leaked emails from Deputy Commissioner Mike Clement, which suggests that the police lacked the necessary powers to enforce the lockdown when it was initiated on 25 March.^[216] As mentioned above, the police subsequently released operational guidance and a video around enforcement approaches was made for front line staff.

Longer-term considerations

Border restrictions

As previously mentioned, New Zealand's border is effectively closed to overseas travellers and New Zealanders returning home are subject to mandatory quarantine or managed self-isolation. Whilst it is acknowledged that controls at the border will likely remain for a considerable time, focus has started to shift to the gradual reopening of the country to the rest of the world, whilst keeping COVID-19 out. There have already been talks about creating a bubble with Australia but some circles are keen for the country to take advantage of its head start in economic recovery.^[217] The police have been actively involved in the border restrictions and have a presence at quarantine/self-isolation facilities. The role of the police in future changes to border arrangements will likely feature in considerations.