A review of laws around the policing of protests in New Zealand makes recommendations for changes to the law and for changes to police practice.
The review by the Independent Police Conduct Authority (IPCA) followed complaints it received after the Parliamentary protest in February-March 2022, the “Let Women Speak” protest in Auckland’s Albert Park in March 2023 (the “Posie Parker” incident) and the Palestine Solidarity Network Aotearoa Protest in November 2023.
The police have handled protests of one sort or another throughout this country’s history, including the waterfront lockout of 1951, the Vietnam anti-war protests of the late 1960s and early 1970s, the occupation of Bastion Point in 1977-78, the Springbok tour protests of 1981, indigenous rights protests, anti-nuclear protests and economic and social protests in the 1980s and 1990s.
The claim now is that the protest environment has changed. The IPCA report suggests “the protest environment is becoming increasingly complex, with often disparate groups coming together to protest and counter-protest, combined with an international trend towards an increasing complexity in protest tactics”. It is suggested that the regulatory framework for managing and policing such protests is not fit for purpose.
The biggest change in the protest landscape was neither the tactics of protest nor the style of the protesters but the introduction of the New Zealand Bill of Rights Act 1990, which provided yardsticks and limitations for the exercise of rights, such as the freedom of expression, association and assembly.
Since the act took effect, we have had 35 years of jurisprudence on protests, including a detailed framework for the assessment of justified limitations, and a significant amount of case law around protest rights.
The IPCA refers to that case law in its report, but largely to suggest that the law is “uncertain” when I would suggest it is not. It seems mainly to be concerned that when cases get to court, police decisions are overturned.
The review suggests that the police often act in a vacuum, having to make their own decisions as to the reasonableness or otherwise of protest actions.
It proposes a new approach, with legislation to provide a specific framework for the police management of protests, including a requirement for advance notification of public assemblies and powers for senior officers at the scene to impose conditions on the conduct of the protest.
This means it would be easier for police to manage protest events. It means that protest activity could be constrained. It means that the spontaneous nature of protest would be nullified. It means that protest activity and the freedom of expression associated with it would be wrapped in legal chains to such an extent that the impact of the protest would be diluted to something anodyne.
And that would be a loss to our democracy and the right of the people to voice their opinions.
Rather than developing a legislative framework with its inherent complexities and bureaucratic requirements, police time may be better spent educating themselves, with better training and a nationally consistent approach. What’s needed is a nimbleness and agility in making decisions rather than suffering from decision paralysis and adopting a “one size fits all” framework.
Limiting and constraining the freedom of expression and the right to protest is an inevitable consequence of the IPCA proposals. One can only hope that they will go no further and that the police will look within themselves for solutions rather than turning to the legislature for guidance in telling them what to do.
David Harvey is a retired district court judge.
