How legal has all this been?

It's generally accepted that without a police presence, roadblocks are illegal. But what about the arrests? Picture / David Fisher

We should be prepared to cut the government some slack over its handling of the Covid-19 crisis. None of us had experienced anything like the crisis that was bearing down on us a couple of months ago, and no one could accurately predict what was going to happen.

Overseas modelling, since largely discredited, suggested it could be calamitous. People were already dying overseas, and continue to do so, although even at the outset it was difficult to accept that the Prime Minister's warnings that without going "hard and early" we could be looking at tens of thousands of deaths weren't a touch over-egged.

The reality has been nothing like that. With fewer than 1500 confirmed cases, and 21 deaths, we might regard ourselves as having dodged a bullet, although there is no way of knowing whether the precautions taken, particularly the level 4 lockdown, can take the credit for that. Maybe the fact that we are geographically isolated, with borders that were much easier to close than some countries, has been our salvation.

Certainly there are grounds for arguing that from the outset the government should have looked at exempting activities that were safe as opposed to essential from the strictest lockdown measures. Even without hindsight there seemed to have been little risk in allowing golf and bowling club green keepers to maintain their facilities, or for pest trappers to continue protecting wildlife. It makes no sense now, and made no more sense at the time, to prohibit those on the grounds that they posed a public health risk.

But if the government erred on the side of caution, it will say it did so in our best interests. Its prime responsibility was to prevent an undoubtedly deadly virus from doing here what it was doing in Italy, Spain, France, the UK and elsewhere.

At some point though, we will be entitled to a debriefing of some sort. That, no doubt, will in large part focus on whether the damage the lockdown has done to the economy was justified, which again will be difficult to prove either way. No one can possibly know what would or could have happened had we not gone "hard and early." And the fact that the virus has taken such a light toll in terms of lives will be used to justify what was done.

Of greater moment, perhaps, will be whether some of the actions taken were actually legal. It could be argued that in a time of crisis the legal niceties can justifiably be blurred. We're talking here of saving lives, and an entire economy, and if one or two finer points of law were overlooked, that was a small price to pay.

That concept has well and truly taken hold in terms of road checkpoints, which from the outset were widely accepted as illegal, at least until the police became actively involved. The motivation of those who established checkpoints might have been laudable, but some argued from the outset, and still do, that they were illegal and should not have been permitted.

The police probably had enough to do without committing personnel to checkpoints set up by others, but throughout this crisis we have seen no sign of the armed forces. We do still have them don't we?

Now that the crisis seems to be waning, and judging by the public reaction to the easing of the lockdown to level 3 many of us believe it is, it is time to look at some of the legal issues a little more dispassionately, if only to see what we can learn.

The biggest lesson seems likely to be that there was a lack of overarching control. While we as a people were not trusted to show common sense, those who enforced the rules were allowed to interpret them as they saw fit.

Like when police descended on a Christchurch beach to disperse the masses. According to the rules of lockdown level 3 they were entitled to be there, as long as they maintained 'social distancing.' Not according to the police. As widely reported, those who were not actively exercising were told to go home.

Who exactly decreed that those who availed themselves of the opportunity to go a little further afield (ie travel regionally as opposed to locally) than they had been allowed to under level 4 had to be actively exercising? Where did/does it say that simply sitting on a beach, at least two metres from any other bubble, was not permitted? Why is it okay to stand, rooted to the spot, with fishing rod in hand but not to sit down on a blanket? Why was it okay to jog, potentially bursting other people's bubbles willy nilly, but not to build a sandcastle?

Sitting on a beach on a sunny day might not be of much anaerobic benefit, but it might well do enormous good for some people's emotional equilibrium. Not according to the police in Christchurch.

Last week we learned that Work and Income had allegedly gone further, not by interpreting lockdown rules freestyle but by ignoring legislation with which it must have been intimately familiar, by telling "people" who had been paid redundancy that they were not eligible for a benefit until that money ran out. That came to light after RNZ carried the story of a hotel worker who had been made redundant, and had been told that she was not eligible for the job seeker's benefit until her redundancy ran out in September.

A group general manager, who one might have expected to know better, was reported as saying that payments received when a person stopped work, such as holiday pay and some severance payments, would delay the start of income support payments, contrary to Section 422 of the Social Security Act, which apparently makes clear when calculating a person's income and benefit level, no account is to be taken of redundancy or retirement payment.

Thanks to RNZ, the hotel worker was told a mistake had been made and she could receive the benefit. Maybe WINZ staff could spend some lockdown time familiarising themselves with the legislation that empowers them.

Worst of all, however, were last week's revelations that Crown Law had told Cabinet that, in the early stages at least, the lockdown rules were not legal, potentially entitling those who had been arrested and/or prosecuted for breaching said rules to sue the government. Crisis or no crisis, that suggests a monumental blunder, but any legal or political repercussions seem unlikely to emerge without a good deal of kicking and screaming, given the leaked email from the Prime Minister's office that directed ministers' press secretaries to issue only "brief written statements" in response to all media queries.

"Do not put Minister (sic) up for any interviews on this," the email said. "There's no real need to defend because the public have confidence in what has been achieved and what the Govt is doing. Instead we can dismiss."

Not the sort of thing we expect from the most open and transparent government this country has ever had. A government that is actually unlikely to be any more willing than any of its predecessors to sit down when this crisis is over and look, openly and honestly, at what it did, how and why.

It probably won't have much to fear from the state television channel though. Days after Crown Law's advice was finally leaked, the government having steadfastly refused to release it, TVNZ had still found no reason to mention it. Most of us won't want a witch hunt, but there are questions to answer, and already the hatches are being battened.