Andrew Geddis: Right on the side of Occupy

The Occupy Auckland protest in Aotea Square, Auckland. Photo / Richard Robinson

I am not a part of the Occupy Auckland protest. I can't speak for them or their aims.
In fact, I suspect the protesters themselves are somewhat uncertain about their goals. Instead, to use a somewhat hackneyed phrase, the medium of the Occupy Auckland's protest is its primary message.

For the protesters, it is a round-the-clock reminder that the current economic system is not working for many people and a call to think collectively about a better way of structuring society.

You may or may not agree with this viewpoint. I do not think, however, anyone would argue it is not genuinely held, or that it is not worth at least some consideration.
Furthermore, by expressing this message through their occupation action, the protesters are asserting rights that are guaranteed to them by the New Zealand Bill of Rights Act 1990.

It affirms that all of us have the right to express our opinions in any form we choose, as well as to peacefully assemble to join in collective action. These rights can then be limited only if doing so is "demonstrably justified in a free and democratic society".

This background must be kept in mind when considering the call by eight Auckland Council members for court action to evict the Occupy Auckland protesters from Aotea Square. The protesters are exercising rights that not only are fundamental to a democratic society, but Parliament has said are of such paramount importance that they only can be limited where "demonstrably justified".

But hang on, these councillors say. The protesters aren't really engaged in a "protest". They are camping on the Council's land, and there are bylaws that say this behaviour is not permitted (unless the Council first gives its permission).

So because the protesters' actions breach a bylaw, they are illegal. And the New Zealand Bill of Rights Act doesn't give anyone the right to conduct illegal activities, even if they claim to have a political purpose for doing so.

Therefore, if the Council wants these lawbreakers off its land, it should be able to get a court order to do so. After all, what is the point of bylaws otherwise?

Well, maybe. But things are not quite so clear.

First of all, the fact Auckland has a bylaw prohibiting camping does not remove the Occupy Auckland encampment from the protection of the Bill of Rights Act. The Council cannot dictate what is and is not a valid form of "protest" simply by making a bylaw.

If it could do this, then a bylaw prohibiting people from shouting in the street would mean chanting on a protest march is outside the protection of the Bill of Rights Act. Or a bylaw prohibiting the public display of signs would mean the Bill of Rights Act doesn't apply to waving a protest placard.

Clearly that is wrong. Council bylaws must instead be consistent with the rights in the Bill of Rights Act, in that they can only limit those rights in ways that are "demonstrably justified". And if a bylaw's limit on a right can't be so justified, then the right trumps the bylaw.

Consequently, a general bylaw that says people cannot camp on the council's land does not in-and-of itself strip the Occupy Auckland protesters of the right to peacefully assemble to express their views in this manner. Instead, the question is whether the application of that bylaw to the protesters is "demonstrably justified".

That then brings us to the alleged justification for kicking the protestors off Aotea Square. What is the reason for seeking to stop the Occupy Auckland protesters from choosing to protest in the form of an occupying encampment? What is the precise harm they are causing that justifies applying the Council's bylaw in a way that limits their legislatively affirmed rights?

Sure, the protestors may be annoying and somewhat unsightly, but that's the nature of protest. Their presence may be a bit inconvenient, but putting up with a measure of inconvenience is the price we pay for respecting rights.

So while a number of Auckland's residents, perhaps even a majority of them, would prefer to see the protesters removed, the whole point of individual rights is that they counterbalance the majority's desire to have everyone conform to its views. After all, if the mere disapproval of those around you is permitted to dictate the limits of what you can and can't do, then what kind of society would we live in?

In saying this, I do not mean to say that the protesters have a right to stay in Aotea Square forever, or that that the Council is powerless to ever act against them.

The longer the protest goes on, the more likely that its effect will go beyond merely annoying or mildly inconveniencing other people. So, if other groups of residents genuinely cannot use Aotea Square for their planned common purposes, then the issue becomes one of competing rights to peacefully assemble.

Or if the Occupy Auckland encampment becomes a threat to the health and safety of others, then that also may be grounds to act to remove them. Or if the nature of the protest changes, so that it becomes violent or disorderly, then that also would change things.

But in the absence of providing such "demonstrably justified" reasons for removing the Occupy Auckland protesters, the Council is bound in law to respect their individual rights to gather together to express themselves in their chosen manner. And those rights make any attempt to get a court order immediately evicting them from Aotea Square a decidedly questionable proposition.

After all, the rights of citizens to have their say ought not to depend on the good graces of those wielding public power. Rather, it is for those with public power to carefully and fully justify why they are limiting the rights of those in whose name they govern.

* Andrew Geddis is a professor of law at Otago University.