A screen-writer would be proud to dream up a muddle to match the mess outside this nation’s Parliament. The mud and the straw. Barry Manilow bellowing across the windswept forecourt. A wild-eyed Speaker of the House, glaring balefully at the bedraggled masses shrieking beneath his balcony. Police officers without a clue. Blocked streets and closed businesses. The Supreme Court ‘working from home’. Omicron’s exponential curve reaching for the sky.

‘What blighted dystopia is this?’ the screen-writer’s friends would demand to know. The answer: New Zealand, February 2022.

What is happening here? Why has, at the time of writing, this ‘Freedom Convoy’ occupation of Central Wellington not been brought to a close? New Zealanders are looking at their screens in disbelief – and growing anger – at a state which seems utterly incapable of asserting its authority.

What is the Prime Minister doing? Why hasn’t she called in the Army to clear away the protesters’ vehicles? Where are the riot squads of yesteryear, with their visored helmets and PR-24 long batons? Why isn’t anybody doing anything?

It’s a scary question and some of the answers are scarier still.

Shocked and alarmed by outbreaks of disorder and riot in most of New Zealand’s major cities in 1932, the hungriest year of the ‘Hungry Thirties’, New Zealand’s Parliament passed the Public Safety Conservation Act. Politicians in search of a big stick to put about now had exactly what they’d been looking for.

It was this Act that National’s first Prime Minister, Sid Holland, reached for when he believed it was time to put the Watersiders Union and their militant union allies in their place in 1951. By advising the Governor-General to declare a state of emergency and then equipping himself with a draconian set of emergency regulations, Holland took on, and faced down, the Watersiders’ challenge.

It is the folk memory of Holland’s big stick that largely informs New Zealanders’ understanding of not only what the state can do when challenged but also what it should do. When people say ‘call out the army’ they are asking their own government to do no more than Sid Holland’s.

The other memory, buried deep in New Zealand’s collective unconscious, is that getting tough is the right thing for a government to do. All the heroic war stories of militant 51-ers couldn’t obscure the fact that Holland had sought the electorate’s retrospective validation for his state of emergency, and got it. In the snap election of 1951, National secured its highest ever share of the popular vote – 54%.

Thirty-five years after the waterfront dispute, seasoned trade unionists were still instilling the great lesson of 1951 in a new generation of militant firebrands: “You cannot take on the state and win.”

In 2022, however, a better question might be: “Has the state still got the will – and the means – to win?

Certainly, it can no longer call upon the Public Safety Conservation Act 1932. David Lange’s crusading Attorney-General, Geoffrey Palmer, fulfilled a long-standing Labour promise to the battlers of 1951 to repeal the Act. The state’s biggest and most effective ‘bit of stick’ was no longer there for a government in extremis to ‘put about’.

Earlier this week, the very same Geoffrey Palmer told veteran political journalist, Richard Harman that the Freedom Convoy encampment in Parliament grounds may well constitute an unlawful assembly. “It occurs to me this may have […] turned into an unlawful assembly under the Crimes Act because these people have been there when they’ve been told to go, they’ve been given trespass notices, a lot of them, and [120 of them have] been arrested.”

Palmer had more to say: “[I]t seems to me that it would be possible to use more force. But, on the other hand, the ministers would be very reluctant to give orders to the police to […] use more force when […] it is probably an operational matter.”

Where the buck stops

And there, as Shakespeare might say, is the rub. The Policing Act 2008 makes it clear that operational policing decisions can be made only by serving police officers. Politicians are barred from any direct role in determining what must be done, or when, to preserve public order.

Ultimately, the protection of the state and its citizens is a matter for the Commissioner of Police and his senior commanders. When, and how, to use more force against the Freedom Convoy occupiers is Andrew Coster’s decision. The buck stops on his desk.

And that is where ‘we may have a problem, Houston’.

For the past 14 years, the New Zealand Police have been living in the shadow of the debacle that was Operation Eight. Their attempt to bring to justice persons believed to be engaged in terrorist training exercises in the Urewera Ranges culminated in armed, masked and armoured police officers descending like the wrath of God upon the tiny Bay of Plenty village of Ruatoki. It turned into a legal and public relations nightmare.

The highly successful campaign waged against the Police by left-wing lawyers, journalists and activists left its upper echelons politically traumatised. Taking a hard line against potential political threats to public order and security is now the very last thing the NZ Police want to do.

Hence the extraordinary scenes of Thursday 10 February when around 100 constables, unhelmeted, lacking effective PPE and wearing light summer shirts under their bulky stab-vests, were ordered to move on scores of unvaccinated protesters who were only too happy to fight back.

The ‘force multipliers’ on display in other jurisdictions – pepper-spray, long-batons, tear-gas and water-cannon – were nowhere in evidence. The constables’ commander, Superintendent Corrie Parnell, spoke of a ‘graduated response’, to be followed by a ‘state of enforcement action’. But 122 difficult and potentially hazardous arrests later, the occupiers’ encampment remained intact and, to the jeers and cat-calls of the crowd, the constables were withdrawn.

In the days that followed, the situation in Parliament grounds deteriorated rapidly. Mostly, this was due to the extremely inclement weather conditions which rapidly turned Parliament’s once verdant lawns into a quagmire. In part, however, it was due to the actions of the Speaker of the House of Representatives, Trevor Mallard, the person legally responsible for the parliamentary precinct and all who work within it.

For reasons best left unexplored, Mallard decided to involve himself directly in the confrontation with the occupiers. He ordered the lawns’ sprinklers turned on. The occupiers responded by digging channels to drain away the water. Mallard brought out flood-lights and, taking a leaf from the FBI’s operational handbook (last used with astounding success at Waco, Texas), started broadcasting loud music and covid-19 announcements over the parliamentary sound-system.

Hardly able to believe their luck, the occupiers started singing along with Barry Manilow and beeping their illegally-parked car-horns. To the rest of New Zealand, looking on, there appeared to be no adults left in the room at all.

Legal powers

Taking stock, as the occupation clocked-up its first week, what do we have?

First up, there’s the matter of obstructing a public way, an offence under the Summary Offences Act 1981. Then we have repeated instances of common assault upon passers-by wearing masks and even of threatening to kill/do grievous bodily harm to politicians and journalists, an offence under s 306 of the Crimes Act 1961.

Obviously, there is the collective refusal to obey a trespass order but, for good measure, we should probably include the offences of obstructing the police and unlawful assembly. Given the presence of a number of children in the occupiers’ encampment, there may also be grounds for charging participating parents under s 152 (b) of the Crimes Act for failing ‘to take reasonable steps to protect [their] child from injury’.

One wonders, apropos of the occupiers’ stated intentions, whether the MPs who voted to repeal those sections of the Crimes Act relating to treason, sedition, making seditious utterances, rioting and affray still believe they did the right thing.

How easy it is, in times of peace and contentment, to dismiss as dangerous relics such legal powers as the portentous ‘Reading of the Riot Act’, which permitted Her Majesty’s soldiers to fire upon rioters who refused a lawful order to disperse. And how easy it also is to forget that history is not linear, but circular. Peace and contentment all too often prove to be fleeting blessings.

Certainly Sanjana Hattotuwa, a Sri Lankan by birth, who monitors online extremism for the University of Auckland’s Te Punaha Matatini’s Disinformation Project, is a person with much to say about the speed with which a country’s social tectonic plates, so vital in keeping its communities stable, can suddenly rupture, unleashing forces of enormous destructive power. He has seen this movie before, in the lethal civil strife that engulfed his homeland, and he knows how it ends.

Another person with an important message to impart is BBC journalist Gabriel Gatehouse, author of a seven-part series of podcasts entitled The Coming Storm. Gatehouse wanted to know what drove the Capitol insurrectionists of 6 January 2021 and undertakes a deep-dive into the origins and extraordinary motivational power of the fantastical Q-Anon conspiracy theory (many followers of which may be found in the Freedom Convoy encampment).

Gatehouse’s key discovery is the way in which reality is becoming increasingly fluid in the age of the internet: how social media has empowered people to immerse themselves in narratives carefully engineered to empower and motivate those whose lives have been disrupted by forces they neither understand nor control.

One of Gatehouse’s interviewees describes this phenomenon in terms of people being presented with a common cast of characters who are simultaneously acting out radically divergent plot-lines.

In one ‘movie’ Hilary Clinton is the heroine; in another the villain. Millions of Americans believe Donald Trump conspired with the Russians to steal the 2016 presidential election. Millions more believe the 2020 election was stolen from Donald Trump by Joe Biden.

Translated to the New Zealand context, we have one movie in which Jacinda Ardern is the political heroine who carried New Zealand through the first year of the covid-19 pandemic and who continues to struggle every day to keep the team of five million safe. In another, Jacinda is the communist tyrant hellbent on stealing New Zealanders’ freedoms and destroying their livelihoods.

What we also have, however, is a movie in which acting to defend the state (and its citizens) is ringed around with all manner of caveats and doubts. A movie whose leading characters reject the uncomplicated solutions of the past as too brutal and divisive to employ – even against those seeking their destruction. Alongside this movie runs another. It is full of super-heroes and monstrous, child-defiling villains, all of them locked in a life-and-death struggle to control New Zealand’s future.

As is so often the case, humanity has passed this way before. In the phantasmagorical years following the First World War, also a time of political volatility and pandemic, the Irish poet WB Yeats gave voice to the period’s almost unbearable tensions with these oft-quoted words:
The best lack all conviction, while the worst
Are full of passionate intensity.

Chris Trotter is a political commentator and writer of more than 30 years’ experience. He is the author of the Bowalley Road blog