MBIE correspondence released under the Official Information Act, and a determination by Chief Ombudsman Peter Boshier, relayed in a June 30, 2022 letter to complainants Nick Smale and Hugh Grierson, sheds new light on Government umming and ahhing over which liquor outlets should be allowed to trade under the 2020 lockdowns.
Boshier found that MBIE acted legally and "not unreasonably", and that "while not recorded in a formal minute, I am satisfied there was still a Cabinet decision" on who should be given the right to keep selling alcohol.
An MBIE staffer says in emails that "to slow the spread of Covid-19, we need as many businesses as possible to close".
But, having decided that alcohol was essential, neither MBIE, the politicians involved or local MPs could explain - either in the initial scramble or afterward when the dust had settled - why only bottle shops owned by The Trusts monopoly could keep trading, while a half-dozen independents were forced to close their doors.
When Covid first hit in March 2020, there was a mad scramble as Government established the rules for our first lockdown.
Stay home, save lives was the mantra as non-essential businesses were closed. But what does "essential" mean exactly and who decided?
Some of those judgments were contentious and many businesses deemed non-essential were pushed to the wall while their essential cousins struggled to cope with unprecedented demand.
Hugh Grierson is a brewer and award-winning purveyor of craft beer in Avondale, West Auckland who was caught up in this push and shove. Hopscotch, his brewery and taproom, lies within the boundary of the monopoly-holding Portage Licensing Trust.
The rules of its monopoly allow Council to issue off-licenses to producers (like cellar doors and breweries) and also to "wine resellers" who have held their licences continuously since the 1960s. These two exceptions mean that West Auckland has about six non-trust liquor stores scattered across the district.
Whether alcohol was essential was somewhat contentious, but there was broad public acceptance that liquor stores would be closed as supermarkets had it covered. Areas with dry supermarkets complicated things, however, and over the first 11 days of the lockdown the definition of essential, with regards to alcohol, changed five times.
Trust-operated stores would be essential but non-trust stores in monopoly areas such as Hugh's, were initially deemed essential, then non-essential, then essential again before a final change rendered them non-essential for the remainder of the pandemic.
Non-trust stores were opening and closing faster than an Auckland umbrella.
And the final set of rules meant that whether a liquor store was essential was simply a function of who owned it.
At 576 Te Atatu Road, Fresh Beer Brew Company operates a retail liquor store which was not essential.
At 571 Te Atatu Road, the Waitakere Licensing Trust operates a retail liquor store which was essential.
Both stores are in a monopoly area with dry supermarkets, both sell a range of beer, wine, RTDs and spirits.
Same type of store, same products, same location, but different owners equalled different rules.
Notably, the owners handed this advantage were licensing trusts governed by local politicians – often members of the Labour party and personally connected with Ministers and Members of Parliament.
For the non-trust stores affected by this decision, it was a bitter pill to swallow.
Their competition, already at an advantage due to their monopoly, was handed significant further advantage and yet, made a series of extremely poor decisions undermining the pandemic response.
The Trusts chose to operate just nine of their 26 stores at heavily reduced hours and continued to sell spirits and RTDs, which predictably attracted shoppers from all over Auckland and created multi-hour queues which stretched for hundreds of metres around their stores.
Any arguments that licensing trusts would somehow operate more safely than others during a pandemic were unequivocally demolished in those initial days of lockdown.
In the context of the pandemic response, haste rightly trumped accuracy and imperfect decision-making from the Government was entirely understandable and reasonable.
But what angered Hugh was the lack of humility and accountability of the Government in the months and years that followed.
More than two years after the decision was made to shut down the non-trust stores during lockdowns, we can only say that it is "more likely than not" that these decisions were made by Cabinet and the justification for them remains a mystery.
The relevant minister at the time, Kris Faafoi, did not respond directly when concerns about these rules were put to him and instead directed them to the Ministry of Business, Innovation and Employment (MBIE). Hugh's local MP, Dr Deborah Russell attributed the problem to unclear advice from MBIE who were unaware of the non-trust stores' existence and described the rules which "came out of Wellington" as an "MBIE stuff up".
MBIE, however, was adamant that it was a Cabinet decision and thus not theirs to defend or explain.
Like a meme with multiple Spidermen pointing at each other, the various arms of Government refused to acknowledge who had made the decision to close these stores.
Months later, after an Official Information Act request to MBIE laid bare the confusion within Government about the alcohol rules at the time, Russell re-confirmed that this "was not a Cabinet decision" and went on to accuse me of "using the current Covid crisis as a vehicle for attacking the Trusts".
Now, more than two years after the event, having first exhausted a complaint process through MBIE, the Ombudsman has handed down his final opinion that the decision to define non-trust stores as non-essential was "more likely than not" made by Cabinet; and that Cabinet was sufficiently informed and aware of the implications on people like Hugh.
There is no written record of any advice provided to Cabinet nor of their decisions.
With Faafoi now retired from Parliament, I put it to local MPs Russell and Phil Twyford whether they accepted the Ombudsman's opinion that these decisions were made by Cabinet, whether they personally thought they were fair, and how did they justify them.
Russell declined to comment and Twyford stated that the decisions were made at speed but wouldn't comment further.
Now, with over two years having passed and lockdowns quickly becoming a memory most of us would rather forget, justice delayed is justice denied.
But for those directly affected like Hugh, the Government's refusal to accept accountability for its decisions leaves a distinctly bad taste.
Pandemics are awful and we expect to make sacrifices to reduce their impact. And Government acting in haste can't be expected to get everything right first time. But it's not unreasonable to expect that Government be even-handed, that officials take responsibility for their actions and justify decisions impacting people's livelihoods, and that they act with the humility necessary to revisit poor decisions made in haste.
- Nick Smale is a member of the West Auckland Licensing Trust Action Group, which advocates for competition in West Auckland's alcohol market