Demonstrators in the US protest near the White House at the weekend over the death of George Floyd. Photo / AP
COMMENT:
Listing "European Other" on any census materials, I'm conscious that a person of colour ought to be writing this but I'd be doing those who don't have a voice in the media a disservice not to write about issues facing New Zealand's most marginalised communities.
I'm aware there's a fine line between co-opting issues as a form of social currency or virtue signalling, and genuinely trying to understand and counter the bystander effect. Nonetheless, evil prospers when good men [people] do nothing, so let's discuss racism and some of the legal issues.
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Last week saw thousands of New Zealanders come together in solidarity with the Black Lives Matter movement following the killing of George Floyd. Critics said the protest was undermining the country's Covid-19 lockdown efforts (despite there being alert level 2 breaches in a variety of commercial settings), perhaps feeling uncomfortable that institutional racism might resonate with New Zealanders, while also justifying anti-American bigotry.
New Zealand has had its fair share of subjugation - be it the Land Wars, Parihaka, or Māori prisoners creating the streets of Dunedin and Wellington, for example. Closer to home, my parents' house in Pyes Pa (of Victoria Cross recipient Charles Pye fame) Tauranga is situated around the corner from the battle site of Te Aranga. The paddock - on Joyce Rd - was the home of a massacre and confiscation of Māori land in 1864.
Police Minister Stuart Nash said New Zealand's police had no issues with systemic racism, and the organisation was addressing unconscious bias, yet new statistics show that Māori were more likely to be subject to police proceedings during the lockdown than any other ethnic group. For March and April, Māori made up 42.5 per cent of people subject to some form of police proceeding during the lockdown, despite making up just 16.5 per cent of the NZ population.
We know Māori are almost eight times more likely to be subjected to force by the police, and seven times more likely to be charged with criminal offences. In the 10 years from January 2009 to January 2019, 66 per cent of New Zealanders shot were Māori or Pasifika.
JustSpeak Director Tania Sawicki Mead says to suggest there's no racism within the police simply comforts Pākehā. Hiding under semantics delays what should be a matter of urgency.
Evaluation of the Armed Response Teams' trial (ARTs) will be completed at the end of June, but was it legal in the first place? To recap: Former Police Commissioner Mike Bush announced a six-month trial of Armed Response Teams in Counties Manukau, the Waikato, and Canterbury in October last year.
Teams would support the police's tactical capabilities on the frontline in order to reduce the risk of harm to the public and staff. They would be in line with critical or high-risk incidents, and be deployed at peak demand times, seven days a week. Bush described ARTs as "a standard feature across policing jurisdictions internationally" and following the 2019 Christchurch mosque attacks, the operating environment had changed.
In November, Deputy Police Commissioner John Tims said ARTs would allow high-risk events to be de-escalated and defused with the least amount of force possible. But in the first five weeks of the pilot ARTs were deployed for traffic stops 1406 times; bail checks 339 times; for suspicious activity 223 times; and basic inquiries 224 times. ARTs were called out 75 times a day and attended more jobs in one week than the Armed Offenders Squad did in one year.
The three locations selected for the trial had been chosen as they had the highest numbers of firearms seized, located, and surrendered, yet according to Official Information Act data firearms were involved in less than one per cent of alleged assaults on police officers, and the rate has been declining since 2015. But we saw call-outs to Wairoa, Waitematā, and Auckland City - areas outside of the pilot.
Was the pilot well-received? Action Station figures suggest 1155 people found that 85 per cent of Māori and Pasifika respondents didn't support the pilot, and 87 per cent said armed police in fact made them feel less safe. Matua Moana Jackson also surveyed 1823 Māori, and 93 per cent opposed the move towards regular arming of the police.
Sawicki-Meade said the police's failure to provide data, consultation, and transparency not only undermined the legitimacy of the trial, it undermined the good community engagement police have been doing in the past.
There are procedural questions that need to be asked and critical assessment, otherwise people have every right to be fearful about how police conduct themselves. There's also questions around how police go about honouring Treaty of Waitangi obligations, namely consultation and partnership, she said.
It just so happens Safe and Effective Justice Advisory Group member Julia Whaipooti and Māori justice advocate Sir Kim Workman have filed for an urgent Waitangi Tribunal hearing over the matter, citing lack of consultation and their disproportionate impact on Māori.
Section 16 of the Policing Act 2008 says the Commissioner of Police is responsible to the Police Minister to carry out the functions, duties, and conduct of police, and are independent of any Minister of the Crown regarding law and order decisions relating to individuals or groups.
Otago University's Marcelo Rodriguez Ferrere said the ARTs mightn't necessarily fall within the Act, but the idea of "third source power" could arguably provide a justification.
"No statute allows Joe Bloggs from accounts at a government agency to buy a stapler, but he needs one so he uses Ministry money to buy one. There mightn't be any legislative or express power to do so, but there's an understanding that the stapler is required so the Ministry can run smoothly. That's where the third source power comes in, and allows the Government to exercise power to assist its other functions. That's all fine of course, unless it cuts across anyone's rights."
In other words, it's not expressly legal, but it isn't illegal either.
Rodriguez Ferrere said there may be a "right to life" argument under the Bill of Rights Act if it could be proven that the policy would increase the number of deaths at the hands of the state.
There would be a good justification to the policy - namely crime fighting - but critically, the police must consider the Bill of Rights when making such decisions. If there was a blanket policy and deaths occurred, failure to consider the Bill of Rights Act could have some bite.
Whether the executive took legal advice in the first place, who's to know as it would be subject to legal privilege - which was the case regarding the legality of the lockdown, for example.
Police have always been armed, but ARTs is one step further. Perhaps the Government should require a legislative mandate, seeing as the bleak statistics above suggest we're not immune to systemic problems faced overseas.
"It's desirable for central government politicians to have a greater role in police arming. There's a moral case, but I'm not sure there's a legal one," Rodriguez Ferrere said.
The Prime Minister went so far as to say the Government must not interfere with police operational matters, but it was important to take a stance: "I've always had a very firm view on the general arming of police, I'm totally opposed, always will be. The police commissioner himself has also said he shares that view."
Ardern also was aware the police commissioner was about to make a judgment on the future of ARTs, to which the Government has had input. Seeing as ARTs are out of step with the Prime Minister's war on gun use following March 15, 2020, it will nevertheless be interesting to see if the Labour-led Government rises to the challenge so close to the election.
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