The last-minute changes to the new Covid-19 law giving police extraordinary powers, don’t leave marae any safer, writes Pounamu Jade Aikman.
After an outcry from Māori communities, legal experts, justice reform advocates, and the Human Rights Commission, the extraordinary powers given to police to enforce Alert Level 2 are set to be re-examined (and possibly revoked) after 90 days — rather than the two years initially tabled.
The new law, the Covid-19 Public Health Response Act, gives police the power to enter premises without a warrant, if they believe on “reasonable grounds” that people are breaking the Level 2 rules.
Many Māori were concerned with the bill’s initial reference to warrantless entry into marae. As justice advocate Julia Whaipooti put it: “Te ao Māori responded with our puku.”
But the last-minute changes made to the law in response to the uproar didn’t leave marae any safer.
Before the changes, police could only enter marae without a warrant if it was “necessary to give direction to stop any activity of non-compliance”. With that section removed, police can now enter marae on the “reasonable grounds” test. Which means that, in essence, it’s now easier for the police to enter marae without a warrant.
The COVID Bill was released at 8pm Tuesday night with submissions closing at 10am on Wednesday morning. Even though the intention of including “marae” along with “private house” was to include them in the category with less police powers, the specific inclusion of marae in a provision that still significantly extends police powers was confronting.
Unfortunately, the “solution” which has now been implemented by parliament (who have removed reference to “marae” in the legislation) actually leaves marae more vulnerable to warrantless searches as they are now included in the wider “all other places” category.
So, my question isn’t so much: Is this what we intended? But rather, why weren’t Māori meaningfully involved in this conversation from the very beginning of lockdown? And why did it take such a gargantuan social media effort to engage and contribute to this important conversation?
Genuine, ongoing consultation and partnership with Māori throughout Covid-19 would have allowed concerns to be voiced, and potentially harmful unintended consequences like these to be mitigated.
This partnership is more critical during a crisis, because far more is at stake with such sweeping police powers to enforce Level 2. Our communities are already overpoliced, and it’s our people who are far more likely to be arrested, tasered, have a police dog set on them, prosecuted, or imprisoned. We have a history of racism, violence, and overreach by the police in New Zealand, inflicting tremendous harm to Māori and Pasifika for over 140 years.
As I pointed out a few weeks ago, what safeguards do we have in place that the police won’t act on their racial biases, especially now that they can, in effect, enter marae and homes without a warrant?
In early April, Mike Bush, the former police commissioner, told the Epidemic Response Committee that police data showed that police discretion — historically unequally applied to Māori — is now applied “evenly across communities”.
Yet early this month, when pushed to clarify this, the police themselves stated that they “do not currently have a data set that specifically measures the application of discretion amongst different ethnicities”.
In other words, we have no evidence that racial bias and stereotyping has been eliminated in the police, or at the very least addressed in the way Bush’s claim suggested.
And that’s what’s so concerning.
Of course, our communities know that racism remains a stark reality in policing. But it’s also our communities that have to shoulder the burden of having to be more vigilant in going about their daily lives during Level 2 — and more anxious that the police might enter their homes or marae unannounced if they have “reasonable grounds” to do so.
Those “grounds”, by the way, are informed by racial biases as well.
Will this mean that marae will have to be constantly in touch with the police every time a tangi is held, to assure them that the 50-people rule is being observed? Or can we place a measure of confidence in the police that such an action might be unnecessary?
We all appreciate how difficult it is to navigate our national waka through these times, as we strive to keep our tamariki, pakeke, nannies and koro safe during Covid-19. But in times of crisis, when extraordinary laws have been rushed in without proper consultation or debate, especially with Māori, extraordinary consequences can arise. The Tūhoe “anti-terror” raids are a glaring example of this.
It’s critical that Māori are meaningfully involved in these kinds of conversations — equally during, as in the absence of, a pandemic. The prime minister has insisted that the police powers will go once Level 2 is over, but 90 days is still a long time. Let’s also keep in mind that even after 90 days, the law can still be renewed if deemed necessary.
Our history speaks volumes here. And I implore us all to carefully listen.
Dr Pounamu Jade Aikman is of Ngāti Maniapoto, Tainui, Ngāi Te Rangi, Ngāti Awa and Pākehā descent. His PhD explored the ongoing experiences of police violence towards Ngāi Tūhoe. Born in Australia and raised in Aotearoa, he completed his doctorate through the Australian National University in Canberra, and now lives in Wellington. The opinions expressed in this article are Pounamu’s alone.
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