Northern checkpoints on shaky legal ground

The State Highway 1 checkpoint was located just south of the turn off to State Highway 12 and Maungaturoto.

Signs in Kaiwaka warned of a checkpoint.

Mangawhai Heads Four Square.

Mangawhai Heads Super Liquor.

The checkpoints that locked down the Kaipara district towns of Kaiwaka and Mangawhai, along with the supercity last month, may have been illegal.

Additionally, Police have also refused to confirm that the confusion over the checkpoint boundaries won’t be repeated should Auckland be put into lockdown level 3 again.

Section 18 of the New Zealand Bill of Rights guarantees the “freedom of movement within New Zealand”.

Retired lawyer and Mangawhai resident, Clive Boonham, says that right can only be interfered with if criminal law is triggered or if government legislates around it.

The right to freedom of movement can also be overturned by a person appointed by legislation such as the Director-General of Health, Dr Ashley Bloomfield.

However, when the country was placed in lockdown on February 14, the Government and the Director-General’s message was consistently clear that Auckland was in level 3 lockdown and Northland was in level 2.

On the morning of February 15, Kaiwaka and Mangawhai residents woke to find Police checkpoints had cut them off from the rest of Northland.

Schools closed, stores shut and residents heading to work were turned back at the checkpoints, grinding the local economy to a halt.

Residents on social media also pointed out that Aucklanders were able to visit Mangawhai and Kaiwaka without being screened at a checkpoint.

Mahurangi Matters visited police officers at the checkpoint and was told that Mangawhai and Kaiwaka were in level 3, and that residents could not pass through the checkpoint without exemption from the Government.

Kaipara Mayor Jason Smith was also told that the towns were in level three and took to Facebook to inform citizens. This was subsequently reported by local and national media.

Rodney-based MP Marja Lubeck was a lone voice on the day, attempting to counter rapidly spreading misinformation, assuring Kaipara residents they were not in lockdown level 3.

Her enquiries to the Government’s Covid-19 group confirmed that Mangawhai and Kaiwaka residents ought to have continued enjoying their legal freedoms.

By evening, Police backtracked and issued a statement without explanation announcing that checkpoints would be moved back to the legal regional boundary, where they had been during the regional lockdown last August.

The Government subsequently issued a statement saying there had been “a misunderstanding between agencies”.

“We acknowledge some confusion resulted and we apologise for the inconvenience people have experienced,” it said.

Similarly, last week Police responded to questions from Mahurangi Matters, again citing a “miscommunication between agencies”.

“When Auckland moved to alert level 3 at 11.59pm on Sunday, February 14, the northern boundary checkpoint was initially placed at a position different to that set by the Health Order,” Inspector John Thornley says.

“As soon as this was identified, agencies worked together to seek the best way to resolve the issue, with the result that Police quickly shifted the checkpoint to align with the boundaries set out in the Health Notice.”

No assurances that the towns would not be put into further lockdowns with Auckland were made, nor apologies issued. Police also did not respond to queries as to whether the checkpoints were legal.

Legal experts believe the events and decisions made by Police have implications for the “rule of law”.

“Police do not have the lawful power to apply their own interpretation of the law. They must comply with the letter of the law,” Mr Boonham says.

He says that had Police arrested someone for refusing to comply with the checkpoint, it would have likely been ‘unlawful detention’.

Further, businesses and residents who lost money as a result of the lockdown may even have the right to make a compensation claim against Police.

NZ Council of Civil Liberties spokesperson Kevin McCormack says at face value, it appears there may have been a breach of the Bill of Rights.

However, he points to a recent case where lawyer Andrew Borrowdale challenged whether the first lockdowns in 2020 were legal as they had not explicitly been ordered by the Director-General of Health.

In that case, the High Court agreed that the process of putting the country into lockdown had been unlawful, but no official censure was made as it was seen as justified under the circumstances.

“The fact that the decision was made in haste and quickly corrected limits the capacity to be too critical,” Mr McCormack says.

However, Mr McCormack says there is a danger that “acquiescence by citizens” may in time be viewed as a softening of the public to future measures under the guise of public safety.