Two years ago, we saw a significant victory for the right to protest in New Zealand, with the Supreme Court ruling in Brooker v. Police. The court reinterpreted the law against disorderly or offensive behaviour through the lens of the Bill of Rights (as it is required to do by law), and came down decisively on the side of freedom of speech, and raising the bar significantly on what an imaginary “reasonable person” must be expected to put up with in a public space. As justice Tipping pointed out,
the purpose of protest is to make someone listen to something they do not want to hear.
and that means you can’t just arrest people for saying something you don’t like, loudly and repetitively.
Unfortunately, the police don’t seem to have got the message. Today, at a tennis tournament in Auckland, a group protested against the presence of Israeli player Shahar Peer – and were silenced by the police:
A group of around 10 people holding anti Israel placards stood in the Auckland Domain, which backs onto the ASB Tennis centre, and with a loud hailer blasted out accusations that Peer, 22, had “blood on her hands” for Israel’s occupation of Palestine. The noise could be heard right across the tennis centre and clearly audible to the 3000 spectators in attendance.
After letting the protest go for 45 minutes police moved in, arresting the man who was holding the loud hailer.
No matter what you think of the protestor’s message, they unquestionably had a right to express it, and in the absence of violence, the police had no right to silence them. The protest may have been annoying, it may have forced people to listen to a message they did not want to hear – but that is the point, and it is lawful and everyone’s right in a democracy. By arresting them, the police have violated that right, and shown their contempt for the Supreme Court’s ruling, and for the law they exist to enforce. And if they get away with it, then we’re not a country of laws, we’re just a country of blue-uniformed thugs who decide for themselves what is and isn’t acceptable while hiding behind law and democracy.
From what I understand the protest was noisy, orderly, and well within the bounds of a normal protest. I have no idea about what was being protested about apart from what has been written about it in some news articles, and I really don’t care. What I am concerned about is that the police seem to think that they can stop a protest without sufficient reason, and almost certainly outside of the current legal framework. This means that another case goes through an already clogged court system before charges are dropped or the arrest is overturned.
Furthermore, there is no effective redress against the police for this action. The Independent Police Complaints Authority is completely ineffective in this type of case. While they will investigate, this usually consists of getting the police to look at it themselves for minor charges like disorderly behavior. This will typically take a year and in almost every case I’ve seen for protest action results in a whitewash. You’d be better off taking a civil action or a private prosecution against the arresting officer, which will take a long time and cost tens of thousands of dollars.
Quite simply if parliament had wanted to stifle protest then they should have passed laws to do so. They haven’t and the courts have upheld the will of parliament. The police however do not appear to recognize either as an authority. The judgment in the Brooker case makes it clear what the parameters legally are.
So I’d suggest that even if you disagree with the protest – go along and start protesting. Against the other protesters if required. You’ll be participating in a protest against the police stopping protests without good legal reason.
The daily schedule for the tournament in Auckland is at this site. Look for Shahar Peer.