Dialogue: More freedom in public expression

By RICHARD HART*

All free and democratic societies recognise the importance of allowing their citizens to gather in public places to express dissent. But while the rights of free expression and peaceful assembly are among the most fundamental of human freedoms, the protection of such rights can impose burdens on society.

Unlike most civil liberties, which demand from other people only self-restraint, the rights to free expression and peaceful assembly require some form of interaction with the wider public. They must, therefore, be balanced against the competing need for public order.

A parliamentary committee inquiring into events surrounding the Chinese President's visit to New Zealand last year has found that, on occasion, the police got the balance wrong.

In criticising the police for infringing the fundamental civil liberties of certain demonstrators, the committee affirmed the importance of the right to protest. However, our law has not always been so tolerant of the public expression of opinion.

The 19th-century English jurist A.V. Dicey once noted that in the absence of express constitutional guarantees, civil liberties are merely the residue of freedom left behind after all legal restrictions in society have been taken into account.

Until the New Zealand Parliament enacted a Bill of Rights Act in 1990, protest was permissible only on the principle that anything was lawful which the law did not expressly forbid.

Sadly, the wide range of restrictions on the right to protest in our law left little residual freedom. Influenced in part by the ancient English notion of the King's Peace, our law was disproportionately weighted towards the maintenance of public order. Neither the police nor the courts were quick to champion the rights of demonstrators.

Rights to free expression and assembly could be - and frequently were - curtailed through charges of disorderly behaviour, unlawful assembly, obstruction of the highway and riot. Police could arrest without warrant any person found disturbing the public peace. Local authorities could bring actions in public nuisance against the organisers of street processions and meetings. The courts could impose restrictive conditions on the granting of bail and had the power to bind people over to keep the peace.

Furthermore, the English common law, which New Zealand inherited, limited the rights of people on public highways solely to their use for passing and repassing. There was no such thing as a right to hold meetings in the streets because such meetings were regarded as irreconcilable with the right of free passage.

Similarly, there was no right to use the highway for picketing, at least where the picket was not in the furtherance of a trade dispute.

Processions, being in effect public meetings in motion, were treated slightly more favourably. However, the House of Lords last year affirmed that while protest activities are not necessarily an unlawful use of the highway, there was no positive right in Britain to protest on public roads.

Is this still the case in New Zealand? Or does the Bill of Rights Act now take the law further by granting a positive right?

As with the United States constitution, our Bill of Rights Act contains no express reference to a right to protest. Rather, sections 14 and 16 provide that everyone has the right to freedom of expression and freedom of peaceful assembly.

Unlike the American constitution, however, our Bill of Rights Act is not entrenched, and does not grant to the courts the power to strike down legislation inconsistent with it.

Nevertheless, despite initial fears that Parliament had enacted a Clayton's bill of rights, the few cases that have considered the freedom of peaceful assembly show a changing judicial attitude.

Last year, the most recent significant opportunity to examine the ambit of our protest rights came before the High Court in Wellington. The case concerned a group of student protesters who had been arrested for trespass in Parliament grounds after failing to comply with a request to leave issued by the Speaker of the House.

The Crown argued that the Speaker had the same rights as a private landholder to issue a trespass warning. The High Court rejected this position.

The court found that where the Bill of Rights Act applies, a warning issued under the Trespass Act could not be given when to do so would unreasonably limit the right of peaceful assembly and expression.

In determining what was reasonable, the court suggested that account had to be taken of such factors as the size of the crowd, the duration of the protest and the interests of those assembled. While the decision did not entirely vindicate the student protesters, it signalled a shift in the balance.

Potential restrictions on the right to protest are still available. The police can still arrest for disturbing the peace. Local authorities can still bring public nuisance actions. And the courts can still bind people over to keep the peace.

But now, thanks to our Bill of Rights Act, the freedom to protest may be subject only to such reasonable limits as can be demonstrably justified in a free and democratic society.

It would be somewhat naive to suppose that the act ushered in a new era of increased commitment to the fundamental values contained within it. But the courts are demonstrating a willingness to give greater effect to freedom of expression and peaceful assembly when undertaking the balancing exercise that such cases inevitably require.

The parliamentary committee has now recommended that these rights be regarded as the starting point for police when making operational decisions on public demonstrations.

Such an approach ought to be welcomed because the right to protest is far too valuable to be left to wither under the weight of broadly defined, far-reaching and arbitrary police and Government powers.

* Richard Hart has just completed an honours degree in law and political science at the University of Auckland.