Like the rest of us, police operate under a very particular set of circumstances at level 4.
Public health orders, passed so safety restrictions like mask-wearing and staying at home
are legal, provide parameters for law enforcement.
It enables police to take formal action when breaches occur. We've seen this in cases of
blatant rule flouting - like the Auckland couple who allegedly used their essential worker
status to get out of Auckland and fly to Wanaka.
However, there's also an expectation erring away from formal action and taking an
educational approach with the public is best practice. This is where officers use their
discretion to inform people of the rules if they're breaking them and encourage them to do otherwise. In those instances, no official legal action is taken.
That approach recognises the extremely testing circumstances of lockdown, as well as the
greater range of powers police have. It's also important we scrutinise how these are used.
Case: The Kennedy Point protest
For more than five months, protesters have occupied Kennedy Point, Waiheke Island in
objection to a marina development. There are two main camp setups - one at the beach at
Pūtiki Bay, and a second spot about 200 metres up the road at the public carpark.
Since the occupation began, there have been confrontations between police, construction
staff, and protesters - who have attempted to halt or slow construction through physical
presence on land and in the water. There have also been arrests of protesters throughout
the occupation period.
When level 4 was announced on August 17, four individuals from the protest group Protect Pūtiki decided to form a bubble so they could remain at the campsite. A small bach was hired by the group, which had a shower they could use exclusively as a bubble. The camp's kitchen facility was where cooking would continue to happen, and the council had also agreed to keep the public bathrooms open for their use.
Dani Riekwel, a Protect Pūtiki member and one of the four individuals who decided to remain at the camp, says they believe the arrangement followed all the rules.
However, four days after level 4 was implemented, the group received a letter from police,
via two Māori liaison officers, titled: "Notification of intended breach of public health
response order". It stated "the protest activity you are participating in" breached the current public health order, specifically the rule prohibiting attendance of a gathering in an outdoor place. It also outlined they could be fined up to $4000 or be sentenced to six months' imprisonment for non-compliance.
Riekwel says as a result, when about 20 police officers from Auckland arrived at their
campsite on August 21 (about five hours after the letter was given to them), the group
complied with the request to leave.
"We really didn't want to be arrested. We were also trying to maintain our bubble and keep
social distancing but some of the police were coming within a metre of us," she says.
What the law says
Legally, at level 4, everyone has to "remain at their current home or place of residence". In addition to a house, flat or apartment, this can include a campervan, other type of vehicle or a temporary structure like a tent. Mobile residences must not travel around. Exceptions to the rule are also made for essential movement.
University of Otago law professor Andrew Geddis looked specifically at the camp setup in
relation to potential rule breaches.
First, as long as the group is legally entitled to camp at the carpark, people are allowed to
remain there throughout level 4, he says.
According to Riekwel, this isn't an issue as the group has permission from Auckland Transport - which owns the carpark - to be there.
Second, Geddis went through the technicalities of "bubbles". He says while temporary
structures and vehicles can be places of residence, "intermingling" between people staying
in different structures can be considered bubble breaking.
"Four people, living in four separate structures on the occupation site - they would technically not be allowed to co-mingle because it's a four-way shared bubble," Geddis says.
"It's the same as four people, who share an apartment block, not being allowed to mingle
with each other, even if they're all in the same corridor of the apartment block."
To clarify, two bubbles can link up, but they must be exclusive to each other and at least one has to be a bubble of one.
Was police action justified?
It's been difficult to track down specifics of the alleged rule breaking.
When asked by the Herald, police said in a statement "the four occupants at Pūtiki were
asked to return to their main place of residence because they had been breaching the level 4 restrictions by having unlawful gatherings with people outside of their bubbles and there had been reports of them not social distancing".
No further details were provided. Protect Pūtiki have also been unable to verify what the
incidents were and why an offer of just Riekwel remaining on her own at the campsite was
not considered. They've also laid a complaint to the Independent Police Conduct Authority
over what happened. The Green Party has also been unsuccessful in getting information
about the day.
Riekwel: "Because it's Waiheke, and they know us and the locals and the [local] cop, they
could actually give us specific names and places - who it was, who did what.
"But they haven't given us anything and because nobody was arrested, they don't have to."
And while there's no legal obligation for police to follow up in the absence of prosecutorial
action, Geddis says transparency around their behaviour is important.
"My general point would be that, when the police give you that sort of advice, we should
recognise that it takes an exceptionally strong person to say no to it.
"I'd have thought that because the police do have quite exceptional powers under these
emergency situations, being as open and transparent about how those powers are being
used would be a good idea.
"After all, it's the police's interpretation of these rules that effectively dictate how they will be applied."