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Thinking into this checkpoint issue. Curious to know what is the basis on which folk are arguing that they’re unlawful?
Common law right to pass and repass? Section 22 of Summary Offences Act?
Common law right to pass and repass? Section 22 of Summary Offences Act?
FWIW, from a brief dive in, I’m not sure it’s clear that checkpoints managed by citizens are necessarily unlawful. The various rights in play and related offences have some wiggleroom — a narrow sliver for folk to argue the checkpoints could be legitimate and reasonable.
The most squarely applicable offence is s22 of the Summary Offences Act. But that injects doses of reasonableness into the mix.
See Police v Chiles [2019] DCR 645, where the (un)reasonableness aspect did a lot of work, including channeling other rights and glossing rights of passage.
![See Police v Chiles [2019] DCR 645, where the (un)reasonableness aspect did a lot of work, including channeling other rights and glossing rights of passage.](https://pbs.twimg.com/media/EWUGwChUMAQcgoO.jpg "See Police v Chiles [2019] DCR 645, where the (un)reasonableness aspect did a lot of work, including channeling other rights and glossing rights of passage.")
In principle, this might provide a hook for iwi and hapū, for example, to argue any obstruction is not unreasonable because checkpoints are the manifestation of Treaty rights and an expression of manaakitanga.
That’s probably a complex question — and others are better placed to express a view on how that might play out here. (There’s a good note from my colleague Claire Charters on some of these dimensions: https://www.newsroom.co.nz/ideasroom/2020/04/19/1133089/auckland-op-ed-on-ti-tiriti-by-april-22.)
The small point I am making is simply that these dimensions are live and in play. And it’s probably over-egging things to say these checkpoints are necessarily unlawful.
I have not forgotten or neglected freedom of movement and right not to be arbitrarily detained. But, again, the Bill of Rights Act provides a framework which allows competing rights and interests to be deliberated.
And these are rights against state actors, although they may also be engaged in relation to those undertaking “public functions”. A debate point, perhaps, about applicability.
It goes without saying that, if engaged, section 5 would allow an assessment of whether checkpoints amount to a justified limits on those rights — again potentially providing a hook for iwi and hapū to argue their action is legitimate.
