Guest Post: Is martial law next?

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Over the past few weeks – and particularly since “lockdown” began only two short weeks ago – we have seen police powers growing, seemingly by the day. It began  with what former Commissioner Bush called a “three step process”: firstly educate, then warn, then if necessary arrest. Bush seemed to think the veiled threat of “a trip to our place” for those who didn’t satisfy his men  somewhat amusing. It was made  clear that what was envisaged for persons taken on that “trip”  was a period of detention and then – if the person concerned was a good boy and agreed to whatever was asked of them  – release without charge. So far so only slightly sinister, although it would be fair to say that most people didn’t really see it that way. It was only libertarians like me who had some disquiet from the beginning.

The next step was a exponential increase in police powers granted by the Medical Officer of Health, the apparently very capable Dr Ashley Bloomfield, by way of a Notice issued  under s.70 of the Health Act 1956. It is no exaggeration to say that the powers granted to the police under that Notice far exceed anything seen in this country since the waterfront strike/lockout in 1951; they are arguably greater than 70 years ago.

If any reader thinks that statement is hyperbole, I strongly urge them to read the said section 70  – just Google “New Zealand Legislation” and insert “Health Act” into the box. A Notice under s.70 allows persons acting under the direction of the Medical Officer of Health to: order that animals be destroyed; require persons to submit themselves for medical examination or testing at a prescribed place and time; require persons and places  to be disinfected; require persons to remain where they are until declared free of disease; and most draconian of all – and that is not a word I use lightly –  do anything listed under s.70 (2), which bears quoting in full:

s.70 (2) The medical officer of health, and any environmental health officer or other person authorised in that behalf by the medical officer of health, may at any time, with or without assistants, enter on any lands, buildings, or ships, and inspect the same and all things thereon or therein; and may do, with respect to any persons, places, lands, buildings, ships, animals, or things, whatever in the opinion of the medical officer of health is necessary or expedient for the purpose of carrying out the foregoing provisions of this section

In other words, the police – or any other “authorized” person – may enter into your home and do “whatever in the opinion of the Medical Officer of Health is necessary or expedient…”. These are extraordinary powers, seemingly without obvious limit. They are being interpreted to mean inter alia¸ that the  police may enter people’s homes, demand to know who is there and why, and if the answers are not satisfactory to the police or other agent of the state exercising the power, to arrest that person.

While the right to petition the  courts on a writ of habeas corpus has not been suspended  – so far as I know – the courts themselves are not currently sitting regularly, and frankly I do not know quite how I would go about making an application to the High Court – especially over Easter –  if any client of mine was arrested and detained without charge for an indefinite period. But, as the infomercials say wait, there’s more.

Today Stuff reveals that the police have co-opted Aviation Security Officers – those guys whose  job it is to watch the screen as your carry on is scanned – to “assist” the police in the exercise of their powers. Think about that for a moment – a person with no training to speak of, and certainly no training regarding , or even  awareness of,  citizens’ rights under the law – except at the airport –  is now potentially empowered to enter your home and demand to know why your brother or your cousin or your girlfriend  is there, and if they don’t like the answer, have you arrested by a policeman who is just a cell phone call away.

The hapless and incompetent Phil Twyford blandly assures us that such officers “will not be deployed in situations that may put their safety at risk”. How reassuring. Frankly the safety of such “officers” is rather less important to me than the rights of citizens to go about their lawful business without some person  whose usual job is watching a scanner at  the airport demanding to know who is in a house and why, with the knowledge that that entirely untrained person is able to call on all the forces of the state if he or she doesn’t like the answer – or maybe just the “attitude” of the person being questioned.

 What are the limits of the powers now granted to these former scanner operators? Who knows? For me, these people seem to be  uncomfortably close to “Massey’s Cossacks” – farmers who were made “special constables” in 1913, and as with their modern day counterparts at the airport,  given the power to “assist the police” or in actuality, back in 1913, to   beat up strikers on the wharves.

Back in 1951, the government of the day declared that the country was “at war” with militant waterside workers who were demanding higher pay. No disease was involved, or at least no physical one.  Emergency regulations imposed rigid censorship, gave police sweeping powers of arrest, and made it an offence to assist strikers – even giving food to their children was illegal. However, as  Rodney Hide has noted, even in 1951 the entire country was not under home detention, and nor were people prevented from going to their family bach.

What is next? Police Minister Nash has announced that “the defence force remains on standby” which means that martial law must be at least within the contemplation of some. Do we really want a cabinet containing Nash and Andrew Little to decide whether it’s time to call in the army “to assist”?

All of the above surely begs the question “Is the cure worse than the disease?” I would argue that that may well be the case. Today two more deaths were announced, one of them a 94 year old man, and another person in their 80’s. All four deceased were in their 70’s or older. All four  certainly died with, if not of, Covid-19. I mean no disrespect to the families of the deceased, nor  do I wish to sound uncaring,  when  noting that at 94, every day one wakes up in the morning  is surely  a bonus. The common cold, let alone “ordinary” flu leading to pneumonia  must carry off hundreds if not thousands of elderly people every winter.

I should make clear that I am not in the camp of those who see  this disease as “just the flu” in order to minimise it,  although it is worth noting that  the writer of the seminal work on the 1918 pandemic  made clear that it also was  “just the flu” and not a new and terrible form of TB, or worse, a return of the black plague. This is clearly a very nasty illness no-one – particularly the elderly  or the otherwise vulnerable – would wish to catch.  

I have a son who suffers from seasonal asthma who has been hospitalized on a number of occasions – once three times in one winter – for complications from that distressing condition. He is very much at risk if he was to contract  Covid-19, and I am doing all I can to protect him from catching it.

But let us recall that community transmission has remained at about 2% while most cases continue to be closely linked to overseas travel. In other words the chances of anyone getting it from a trip to the supermarket – with or without the largely useless facemask – are tiny at best.  At long last, full quarantine measures are being imposed at the border; in my view they should have been put in place two weeks ago at least, given the clear pattern of transmission from the very beginning.

But surely we must retain some perspective. For the fourth day running more people have recovered than there have been new cases. There have been a total of four deaths, all of elderly people who, it must be said, could have been carried off by anything, or simply died in their sleep. Given everything we now    know, is this a time for extending  the state’s draconian powers to scanner monitors from the airport? Not in my book it isn’t. History teaches that when emergency powers “for the duration” are put in place, the duration has a way of extending way beyond when most people would think them necessary.

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