Covid Criminalisation

Angus Lindsay

Although there to protect us, many of the Government’s recent measures have widened the net of criminal justice. When we move into a post-Covid world, we should be critical of lingering policies that may remain.

Because of Covid-19, New Zealand police have been granted what have been described as unprecedented powers under the Civil Defence Emergency Management Act (2002), the Health Act (1956) and the Summary Offences Act (1981).

Under these Acts, everyone is to be isolated/quarantined at their current place of residence except as permitted for ‘essential’ movements. This poses a significant change by temporarily criminalising everyday actions and activities such as exercise, seeing loved ones, road use and travel (except for ‘essential’ purposes), and buying consumer items like gaming consoles or sporting equipment even if contactless delivery is assured (yet alcohol and some designer clothes shops have skirted these regulations).

To ‘protect’ the public, police are able to do “anything reasonably necessary, including the use of force, to compel, enforce, or ensure compliance”. This includes directing any person to stop an activity seen to possibly contribute to the emergency.

So far, it seems, police have been taking an ‘educational’ approach rather than a coercive one to enforcing lockdown rules.

Nonetheless, as of April 12, they had reported 847 lockdown breaches under the Civil Defence Emergency Management Act and the Health Act and this had resulted in 109 prosecutions. These numbers represent the individuals who have been criminalised for acts that, up until just over two weeks ago, were normal behaviours.

In these unprecedented times, the state may change what is deemed ‘criminal’ or at the very least further restrict the rights of its population in the name of the ‘greater good’. At the time of writing, the public still does not have clear and transparent guidelines of the full extent of police powers and some, such as National Party leader Simon Bridges, have said they would support increasing police powers further.

In a post-Covid-19 world, there remains the potential for other acts and behaviours to become criminalised and for this to affect some more than others. What happens when we come out of the immediate crisis? Will any of the new rules remain? How long will police retain their extended powers? Will we experience a ‘mission creep’ of state powers and surveillance under the guise of preventing future public emergencies and reducing risk?

The Government’s announcement of cellphone location tracking is worrying. What will be done with the mounds of data the app will inevitably collect? Whose data is more likely to be tracked? How can we ensure the privacy of our data and will it be shared across government? Or private companies? How do our devices aid in the criminalisation of everyday life during the pandemic? What does our consent actually entail?

What about legislation protecting nature? Overseas, we can already observe cutbacks on previously hard-fought environmental regulations in order to stimulate the affected economies or because they’re deemed non-essential. In the United States, the Environmental Protection Agency announced it was temporarily relaxing environmental regulations and fines during the Covid-19 outbreak, following lobbying from the oil and gas industries.

Companies are being asked effectively to police themselves by acting ‘responsibly’, but how can we expect nature-contaminating corporations to police themselves? Given the history of large-scale environmental pollution caused by the oil and gas industries, the temporary rollback of monitoring doesn’t bode well.

How does this look in New Zealand? Will previous environmental laws and regulations go through a process of decriminalisation? It would seem the current situation, with some cities’ residents being asked to put their recyclable items into regular rubbish, and efforts to truck Wellington’s sewage from Moa Point to the Ohariu landfill while engineers fix a broken waste pipe deemed too expensive under the new Covid-19 reality, could signal the top of that slippery slope. Decades of efforts to restore marine habitats from past pollution across the capital’s south coast are being undermined. And there’s not even a cursory mention of the impact on the customary rights of local iwi to source kaimoana.

How will Māori and Pasifika be affected? These groups already come disproportionately under the purview of the criminal justice system. That Level 4 has seen tangihanga disallowed under the justification of ‘public health and safety’ is a clear indication emergency powers have the potential to specifically criminalise some groups over others. This is also a clear breach of Treaty of Waitangi obligations. And then there is the issue of deeply ingrained feelings of mistrust – among Māori especially – toward police. How have police assured Māori their ‘unconscious’ bias will be held in check during this time? Is the ‘educational’ approach of police a non-discriminate practice?

Now, of course, we can all understand the new rules have been designed to put us in the best position to ‘flatten’ or ‘stamp out the curve’ and it appears we have had some world-leading results in this area. At the time of writing, New Zealand has recorded nine deaths and 1386 people are recorded as having been infected or probably infected with the virus. A commendable achievement, but we must continue to protect our most vulnerable while mitigating the potential for our future freedoms to be curtailed.

As criminologists, our job is to highlight and challenge the power structures that have the ability to label behaviours – sometimes everyday normal behaviours – as crimes. While we can accept there are good reasons some of our usual day-to-day behaviours have been classed as criminal during this pandemic, we will continue to scrutinise these issues as we move into a post-Covid world.

In particular, we will be wary of the potentially lingering mission creep of policies currently there to protect us and will aim to shed light on who has been, and may be, disproportionately subject to this period of ‘Covid criminalisation’.

Angus Lindsay is a Master’s student in the Institute of Criminology at Te Herenga Waka—Victoria University of Wellington. This piece was first published on Newsroom, 17 April 2020.

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