Policing under level 2: Andrew Coster

New legislation may be needed to set out the appropriate regime for police powers under alert level 2, Police Commissioner Andrew Coster says. 

There has been 700 breaches of Covid-19 level 3 lockdown rules reported to police, a quarter of them resulting in prosecutions.

Coster told RNZ's Nine to Noon presenter Kathryn Ryan that police were preparing for moving down through the alert levels, and he believed most New Zealanders would continue to comply with level 3 rules until they are changed.

The government will decide next week whether or not the country moves down a level. Coster said any legislative changes will be up to Parliament.

Breaches in level 3

Coster told Nine to Noon that while there was an increase in breaches on the weekend after alert level 3 came into effect, the numbers had steadied. 

"I don't think we're seeing anything that I would describe as defiance, we definitely had a bit of adjustment going from 4 to 3 and there was obviously a desire for people to get out and about. 

"I think things have settled down now into a good rhythm, businesses have got their heads around what it means to manage queues and things and I think people are just getting on with it. 

He said there had been about 700 breaches since the start of level 3, with about a quarter of those leading to prosecutions - mostly for people gathering when they should not be. 

"Generally, that's pretty good when you think about the size of our population, however we do need people to remember what it is that we're trying to achieve here, how much we've put into it already and, you know, getting lax now could really undermine it all."

Police powers under emergency

Coster said police had been using the powers available to them under the Civil Defence Emergency Management Act and later under the Health Act when Director-General of Health Ashley Bloomfield issued a health notice under the Act, clarifying further police powers and restrictions on people in New Zealand. 

"Our powers are to enforce the notice, either under the Health Act or we can also give directions under the Civil Defence Emergency Management Act. Those powers are very clear now and have been since the start of level 3. 

"The powers line up to what the notice, the health notice says. So the health notice has been very comprehensive, since really partway through level 4 and certainly for level 3." 

He said the powers the police had did not really change under the different alert levels, but rather what they would act on was different for each level. 

"Certainly for level 4 and level 3 we've been working under those established Acts, and they really relate to an emergency situation where there's a need to act quickly and there's a need for a high degree of agility in terms of being able to apply a health notice and get some controls in place."

Crown Law sent advice to police early on in level 4 that they had little power to enforce the lockdown, before the health notice was in place. 

Coster said there had been dialogue about whether clarifying legislation would be needed in future but that was a matter for Parliament, and police had always acted within the law. 

"In terms of the powers, they have been very unambiguous since partway through level four, and certainly all the way through level three. Early on there was clarity required which we sought, and got.

"We were confident that we stayed within the powers as they existed."

He said it was possible the law may need to be clarified further for policing in level 2, but that was for Parliament to decide. 

"We definitely need to be able to enforce where there are big outliers - where people are flouting the controls. Even under level 3, there's a lot of trust required, clearly there's a lot more movement than there was ... our effort is directed towards, you know, the obvious breaches which are people having big parties at level three; people clearly travelling, you know, a long way from from where they ought to be."

He said police relied on the majority of New Zealanders consenting to the rule of law, and while for example if 3 million New Zealanders decided to go to the beach during lockdown there was not much his 10,000 officers could do, he believed Kiwis would continue to want the law upheld. 

"The conduct of policing is part of the perceived legitimacy of the whole thing, and we fully recognise we police by consent ... safety is owned by the community and we've seen, I think, really good demonstrations of that and the way people have responded to the situation.

"New Zealand has consistently demonstrated that we can come together as a community for the common good and that's what I would hope we will keep seeing as we go forward."

Iwi-led checkpoints

Community checkpoints set up across the country, largely led by iwi, have served as a prime example of that tension between 

Coster himself was questioned by opposition MPs on the Epidemic Response Committee about the legality of the checkpoints, and told them that where police were present, there was no question that checkpoints were legal.

He emphasised to the committee that checkpoints even without police presence that focused on education of the lockdown rules for those attempting to pass through rather than shutting down freedom of movement were legal, and when police were present they could also lawfully stop vehicles. 

Despite this, several opposition MPs continued to challenge Coster on the legality of the checkpoints in what has been described as a racist attempt to score political points.

"As has been noted, these communities responded to a serious concern they had about vulnerability which reflected a past experience," Coster told Nine to Noon. 

"The 1918 flu epidemic wiped out eight times as many Māori per capita as it did non-Māori.

"We respected the feeling within those communities and did our best to work with them rather than escalate the situation."

Most of the checkpoints have since been disestablished and those that were set up largely had some police presence, Coster said. 

"We discouraged the checkpoints, we felt that it was appropriate for police to do the policing, however where communities determined they were going to do this we worked to ensure that, you know, freedom of movement was maintained. 

"It's not a sustainable situation, and so when we were able we stepped in to create a police presence at these locations and when police are there the checkpoints are lawful. 

"We have the power to stop vehicles, and also, you know, to call on members of the public to assist us, so that's the way they've been running. 

"We're now down to approximately five checkpoints and I'm very confident that they will be wrapped up prior to transition to level two." 

Enforcement for businesses in lockdown

Compliance with the rules for workplaces has led to some confusion about which agency is responsible for acting on breaches. Some businesses have said they have been trying to abide by the rules but where they had questions about the rules were passed in some cases between agencies who each told them different things. Workers have also talked about being afraid to speak up about their workplaces asking them to break the rules. 

Alongside police, WorkSafe and the Ministries for Business, Innovation and Employment (MBIE) and Primary Industries (MPI) have said they were working together to ensure compliance. 

Coster explained some of the tangled responsibilities of the agencies. 

"Police is not the lead agency for workplaces - that's with MBIE and with WorkSafe. 

"Where you get some complexity would be, you know, the burger bar example of people gathering on the footpath ... the workplace ought to be managing its queues - which is something that MBIE would work with them about - whereas police need to manage gatherings to the extent we can in public places. 

"All of this needs to be joined up and we have created a joined up compliance model. Where breaches are reported there's a single front door, and then we triage through and the most appropriate agency leads and others support."

He said there was a bit of shaking down early on in level 3 as businesses and the public got used to the new rules, and he expected the same kind of thing would happen at level 2. 

"We sort of saw the same thing with supermarkets in level four where initially it was a little bit chaotic and then we got kind of queues, marked out and people managing the queues and it all settled down.

"That'll be very much the same situation at the next transition I'm sure because, you know, we've never done this before."

Domestic violence, mental health 

Women's Refuge chief executive Ang Jury warned the Epidemic Response Committee last Thursday that her agency had experienced a 25 percent increase in requests for help.

She also said that because it was extremely difficult for people experiencing family violence during lockdown to seek help, the greatest impact was likely yet to be seen.

Coster similarly told Nine to Noon it was hard to say whether what was being reported showed the true magnitude of the problem. 

"It's very hard to say actually what has occurred, what I can say about the reporting is that police have seen - after an initial short spike - pretty consistent levels with what we saw pre-lockdown.

"That's not to say things haven't been things occurring in homes that have been unreported - we know this has been a really unusual time and so we are poised for the potential for an increase in family harm reporting.

"We've worked really hard with partners to make sure we have the right services about to support people and, you know, accommodation to relocate perpetrators out of homes and that kind of thing. 

"We believe we've done as well as we can, but we can't ignore that some people have been stuck and may not have found the right way to report."

He said while other agencies had reported an increase in demand for mental health support such as counselling, police data had not shown an increase in demand on their end.

"Our demand has stayed pretty steady and we've definitely been attending in the same way as we always would."