On December 16th, 2022, after a 3-day judge-only trial at the Auckland District Court, Judge Peter Winter found Billy ‘TK’ Te Kahika Jr, 49, and Vinny Eastwood, 37, guilty of organising and attending a protest. They were charged with intentionally failing to comply with the law they were protesting, the COVID-19 Public Health Response Act.
Eastwood is a radio talkshow host and activist and Te Kahika Jr, son of blues guitarist Billy TK, was leader of the New Zealand Public Party that joined Advance New Zealand to win 1% of the popular vote in 2020.
The pair attended the protest with around 100 others outside the TVNZ Building on August 18th, 2021, the first day of level 4 COVID lockdown in Auckland. The rules prohibited gathering in large numbers for any reason.
Te Kahika and Eastwood spent 28 hours in jail before being granted bail under house arrest and on condition that they would not communicate with each other, access the Internet, or possess any Internet-capable device. Their lawyer applied to allow TK to deliver online sermons and messages, and for the pair to use the Internet to communicate with their lawyers and attend online court hearings, and these were granted at a hearing almost 3 weeks later.
The defence mentioned several times the far larger Black Lives Matter protests in June 2020, which violated COVID social distancing rules in the same way. These were treated very differently by police, who made expressions of support, and initially refused to comment on whether they had concerns about them breaking rules. Police later said they decided not to charge the organisers or arrest anyone, reiterating the lawful right of protest, and citing enforcement action on the day as being impractical. Judge Winter said what happened at another protest not involving the defendants was irrelevant. That may be legally correct from a narrow point of view, but it is at the heart of the problem of one cause being favoured over another.
The judge said the protest’s violation of social distancing and mask wearing seemed to be “an act of defiance and protest”, and said the right to protest “is not an absolute right”. He said the COVID law restricted rights laid out in the Bill of Rights, but that the Health Minister considered that such restrictions were justified by the circumstances.
The courts have previously considered this issue and found that the COVID-19 pandemic could justify such restriction. This court does not have the jurisdiction to overturn that decision by judicial review even if it were incorrect. Such applications can only be made to the High Court. This court can therefore only find that the order was justified.
TK and Eastwood are due to be sentenced on 30 March 2023; the maximum sentence is 6 months in prison and $6,000 in fines.
Another precedent undermining democracy
The controversy around judgments like this comes from politically biased enforcement, which ultimately gets to the nature of human rights.
Political opponents who joined protests against Covid lockdowns and mandates were targeted and subject to bail conditions that silenced them at the time when their voices were likely to have been most effective.
Not only TK and Eastwood, but Brian Tamaki and Leighton Baker, both previously political party leaders, were arrested at protests and subjected to home detention with bail conditions of not using the Internet to talk about the law they were protesting, which could “incite non-compliance”. Their charges were later dropped.
NZ First leader Winston Peters and National MP Matt King (now leader of DemocracyNZ) were charged with trespass for attending the Parliament protest, prohibiting them from entering Parliament for two years. Unlike almost everyone else charged, they were not arrested while standing their ground against police, but were apparently singled out for entering the grounds during the occupation — something tens of thousands of Kiwis were guilty of. These charges were also eventually dropped.
The effective outcome is that protests that were not politically damaging to the Government were approved, while protests with greater potential for political damage were prosecuted. People who joined small protests experienced fewer rights than those joining larger protests. And opposition politicians had the fewest rights of all.
This uneven enforcement of novel laws speaks to the purpose of rights: to limit the power of government and preserve democracy. How should rights be defined? Are they absolute, so even the Health Minister is unable to remove them? Judge Winter says not.
What does it say about our justice system when these cases come before the Court system despite their raison d’être, the COVID law, being mostly gone, and when 43% of Kiwis do not agree that the Government’s COVID response was “well-judged and appropriate”?
How credible is it to say the arrests were about health, when the Parliament protest was treated in similar fashion despite not violating lockdown, and in the one place in the country most appropriate to protest in?
Is the Chinese Communist Party more responsive to COVID lockdown protests than the New Zealand Government?
If people cannot protest when their rights are removed, do they really have rights?
Correction 30 December 2022
Minor errors fixed, most of which were copied from NZ Herald:
- The protest was on 18th August, not 17th
- Eastwood was 37, not 36
- Both were under house arrest
- Eastwood was not banned from CBD (TK was)
- The maximum sentence includes both prison time and a fine