I have read many impassioned comments on this site concerning the right to protest. Who could disagree with protection of one of the most important of our democratic rights? But discussions often get waylaid because, and this will be a shock to many, there is per se no right to protest.
The “right to protest” is actually a collection of other rights, freedom of expression, and freedom of movement and association being the primary ones. If you read the New Zealand Bill of Rights Act the word “protest” does not appear. Nor does it appear in the United Nations Declaration of Human Rights.
There are limitations. While you have the right to march and chant and hold signs you cannot do this in private premises for instance and if the occupier tells you to go then you are trespassing and can be arrested.
And use of roads is subject to a requirement that you adhere to generally accepted rules. For instance jamming up a main road with parked cars is clearly not what is normally intended and is usually met with a fairly instantaneous response from the authorities.
In terms of the use of Parliament’s grounds the Speaker is the person in control and can decide to trespass and exclude individuals, especially those who are disruptive. The reason is pretty clear, the work of Parliament is all important, especially in the middle of a pandemic.
There have been occasions in the past where the right to access Parliament has been considered by the Courts. The last one that I can find where the situation was analysed carefully was in Beggs v Police, a High Court decision from 1998. The case involved 300 students protesting possible changes to tertiary education funding. Their protest was described as being loud but peaceful. They demanded the Minister of Education speak to them. This was refused. One of the leaders invited the students to take one small peaceful step forward for every minute the Minister did not appear. They were trespassed and warned on five separate occasions. A number refused to disperse and 75 students were arrested.
The case was referred to the High Court for a ruling essentially on the interplay between the Bill of Rights Act and the Trespass Act in the Parliamentary precinct.
The Court stayed the prosecutions, essentially because even if the charges were proved the circumstances did not warrant convictions being entered.
On the test to be applied the case note of the Court decision contains this passage:
The exercise by the Speaker of the power of warning persons to leave under s 3 of the Trespass Act 1980 must be reasonable, both in the manner of its exercise and in the prevailing circumstances. A non-exhaustive list of relevant considerations might include: whether actions are disorderly, unlawful or interfere with others in the exercise of their rights and freedoms; whether an assembly is unreasonably prolonged; the rights and freedoms of other people enjoying the privilege of being on Parliament grounds; the rights of the occupier and those whose business or duties take them to Parliament; the size of the assembly and its duration; the content of what is being expressed (if it is hatred, racial abuse, intolerance or obscenity); the concept of ordre public. In any situation, different factors will compete and with differing force. Those factors are likely to include, but may well not be restricted to, those identified above. Attempting to provide a formula is inappropriate and would be unhelpful. The test can only be one of reasonableness.
Using these criteria how does the current protest measure? Not well I am afraid. Dealing with each criteria:
I admire the restraint of the police and their willingness to attempt to negotiate with the protestors. I admire elements of the left attempting to justify the nature of the protests and suggesting that meangingful engagement and dialogue with them is the best thing to do.
But from a legal standpoint my personal view is that claims by the Wellington protestors that their actions are legally protected are very misguided. And I hate to sound like an old right wing reactionary but this is backed up I think by some reasonably clear advice from the full bench of the High Court. It is a real stretch to say that the current protest is legally protected. I suspect that within the next couple of days the protestors will find this out.