Covid 19 coronavirus: Barry Soper - Police response raises more questions about whether lockdown was legally enforceable

COMMENT

The Beehive was spinning hard last night over leaked Crown Law advice to police over the lawfulness of the lockdown. The fact that it's in draft form is to me irrelevant.

Police seemingly accepted the advice, agreed with the advice, and then used the advice to inform its response.

The draft advice was read by Police in-house lawyer Bill Peoples who then forwarded it to Police Commissioner Andy Coster, Deputy Commissioner Mike Clement and Chief Advisor to the Commissioner Travis Mills on the morning of Saturday, March 28, saying "this is consistent with our internal advice".

Within 90 minutes, Clement summarises it, saying "Police do not have the power to detain individuals, stop vehicles, enter property, search individuals or property, or conduct surveillance over individuals or property in order to enforce the isolation campaign".

That email was sent to Police Area Commanders and to Coster and Mills. Clement describes the advice as "CL (Crown Law) advice to Police about legal powers".

There is no mention he or Peoples consider the draft nature to be a concern.

That there was a problem with enforcement was no surprise to Professor Andrew Geddis, who after seeing some of the leaked advice, surmised police didn't have the power to enforce the lockdown in the way they were.

Enter a man who I believed was clearly panicked - Attorney-General David Parker - last night. He says the Crown Law advice is in draft form, despite evidence the police treated it as anything but.

He issued a statement that said the documents were not the "considered advice" of Crown Law:

"Recent speculation that the Government's legal advice had thrown doubt on the police enforcement powers under Level 4 is wrong," he said.

"That speculation is based on draft views provided to agencies for feedback. That was not the considered advice of Crown Law, which was that there was no gap in enforcement powers."

Parker, and the rest of the Government including Prime Minister Jacinda Ardern, have steadfastly refused to release the Crown Law view.

But, in a sudden twist, Parker has revealed he will introduce legislation to Parliament to cover off level 2 of the lockdown next week.

He was offered the same course of action by the National Party for levels 4 and 3 but declined the offer.

One has to wonder: If the legal case was watertight why would he need to legislate for the much more relaxed level?

For the public this may mean little.

So what if Crown Law told the Government what it was doing wasn't by the book?

The public complied with the rhetoric, stayed inside and avoided each other, hardly anyone ended up in hospital and 89 per cent of those who caught the virus have recovered.

The fearful public had been repeatedly told by the Prime Minister to treat everyone as though they had Covid 19.

So what if the law didn't support what have been the most draconian regulations ever imposed on New Zealanders?

Well, if we accept we are required to live by the rule of law it's vitally important.

The rules can't be used to instil fear with threats of arrests that may not be lawful.

There was ample time and opportunity for the Government to prepare the necessary paperwork.

If they failed to do so, it raises questions of why not. Is it arrogance or sloppiness?

Either way, if they have done it properly - through proper rule of law - is to take this country to a place that none of us would want.