Guest Post: Checkpoints in Northland

A guest post by a reader:

I write this to share with  KiwiBlog readers the insights and conclusions I have reached in looking at the legal issues surrounding the proposed checkpoints in Northland over the holiday period.

Firstly, the disclaimer is that this is not legal advice, and I am not a lawyer. But the perspective comes from discussions with an ex Crown lawyer who is now a QC, the founder of a specialist public law practice and the Privacy Commission. The insights are:-

 a. into the role of ‘iwi representatives’ at checkpoints, and

b. the legality of checkpoints that are not at the border.

Iwi representatives

Iwi representatives are ‘enforcement officers’ under the Covid-19 Public Health Response Act, but their powers are not the same as other enforcement officers under the Act (eg Customs Officers). Their powers are laid out in Section 22, and state :-

(3A) For the purpose of enforcing or monitoring compliance with a COVID-19 order that restricts movement by persons with or without vehicles, a constable may stop persons and vehicles at any road block or checkpoint established for that purpose.

(4) Sections 128 and 129 of the Search and Surveillance Act 2012 (duty to remain stopped and to provide information), with any necessary modifications, apply to the powers conferred by subsection (3) and apply in addition to the requirement to provide evidence of identity in section 19.

(5) An enforcement officer may also stop persons and vehicles for the purpose stated in subsection (3A) if acting under the supervision of a constable.

(6) For the purpose of subsection (5) only, enforcement officer means a person authorised in accordance with section 18 who is—

(a) a member of the Armed Forces (as defined in section 2(1) of the Defence Act 1990):

(b) any person whom the Commissioner recognises as being—

(i) a Māori warden; or

(ii) a nominated representative of an iwi organisation; or

(iii) a Pasifika warden; or

(iv) a community patroller.

The perspective I have is that iwi representatives

1. Must be authorised in accordance with Section 18, which includes an assessment and training criteria
2. Can only stop vehicles for the purpose of (3A)
3. Have no powers to require a person to provide any information (this power resides with Police and other classes of enforcement officer appointed outside Section 22(6))
4. Have no powers to direct a person to not pass through a checkpoint – this is a decision that could only be made by a supervising constable at a checkpoint.

So if asked by an iwi representative to show a vaccine certificate, one would be entirely within one’s right to refuse. This may result in you being directed to a queue to be checked by the poor plod on duty, but there is no legal power that iwi representatives have to compel you to provide any information at all – including your name, address, etc – these are powers reserved for the Police or a class of enforcement officer authorised by the DG of Health.

Checkpoints outside the Auckland / Northland border

Checkpoints are authorised through a combination of the Covid-19 Public Health Response Act, and an order made under the powers of this Act, the  COVID-19 Public Health Response (Protection Framework) Order 2021.

The order is clear through its various schedules, etc that checkpoints are legal if used to check the vaccination status of travellers between one region and another. But it is far from certain that checkpoints within Northland to prevent travel into remote areas (such as the Far North or Karikari peninsula) fall within the scope of the order.

The Police could argue that such checkpoints could be used to monitor compliance with the order restricting travel between Auckland and Northland to vaccinated / tested individuals but there are several problems with this.

Firstly, the order applies to travel across boundaries between areas, where such travel is only permitted for CVC complaint individuals, or those with a test within 72 hours. The boundaries are currently defined as the Auckland region and the Northland region. But once inside a region, it does not appear that you are required to show your vaccination status. It is not a legal requirement for one to carry a vaccination passport or evidence of testing UNLESS one is passing through a border.

So unless the Far North is declared an ‘area’ under a further Covid-19 order, my take is that if stopped, you are required as is always the case to provide a Policeman with your name, address, licence, etc. But they have no power to demand to see a vaccination certificate or passport OTHER than when you are crossing a border established by a Covid order.

So when I am travelling in Northland post Xmas (having crossed the border), I will be refusing to show anyone (Police or iwi representative) my vax passport – they have no power to require you to do so.