It is good to see that â€“ after a 12 year battle â€“ the right to protest in Parliament grounds is finally being reaffirmed. The short version is that in 1997 the then speaker Doug Kidd authorised the arrest of 75 people protesting against education reforms in Parliament grounds and later trespassed them all. It has taken 12 years for the speaker’s office and the Police to finally agree to apologise and pay compensation.
It is frustrating that in a supposedly open democratic society there are so many example of the Police and authorities trying to stifle dissent, and that it takes many years and many costly lawyer hours to get to a point the courts finally make them back down. Recent examples that spring to mind are people being arrested and prosecuted for writing in chalk on a footpath, using a loud hailer and blowing a whistle again on a public footpath, and burning a NZ flag (which required a High Court appeal). If you’re interested in more examples I found this article while I was checking I remembered the chalk incident correctly.
In theory the Police are there to protect our rights, including our right to participate in democratic protest, but it frequently feels like their main goal is to protect the dominance of the current power elite. It was interesting to see this scenario appear in the ethics training material the Police have developed since the Commission of Inquiry into Police Conduct (driven by the Police rape trials)
I would like to imagine this is a sign of a turning tide, and the Police will now be protecting our right to protest, but recent examples of deliberate and exploitative infiltration of protest groups, and the use of defenders of torturers like Mark LowenthalÂ by the Police for training and advice is hardly a good sign. Do these recent examples pass their own test?
This right to protest is interesting. I doubt it legitimately exists (I know of the sections in the NZBORA affirming the right to peaceful assembly etc) but a peaceful assembly is not necessarily a protest and there is a good legal argument that a right that has not explicitly been set out in statute amongst other rights does not exist. Also, the rights in the NZBORA are always subject to a justifiable limitation so there can never be an unfettered right to protest as some maintain.
It seems to me that there is not an absolute right to protest in absolutely any form – so a protest which included killing people is not protected by BORA. But BORA does, in sum, provide protections to almost all kinds of contentious but not destructive protests and, in fact, to some kinds of destructive protests.
Hopkinson v Police, for example, used BORA to quash a conviction for burning the NZ flag.
This is exactly the issue, the Police should never have prosecuted someone for burning the flag as part of a protest given that it was done entirely safely â€“ it is a reasonable protest in a democratic society â€“ but it took lawyers and months and two court cases to get it sorted out.
Hopkinson v Police  3 NZLR 704 <-- there's the decision in case you're geeky keen to read it :)
Thanx, I was until I saw it was 80-odd paragraphs! After all, it is Saturday night.
Of course the right to protest is not absolute. If it was the Queen Street riots would have been lawful. It can be a fine line as to what’s justified and what isn’t. I doubt the police had any option but in either case but to arrest, especially in the “Speaker” case. Political events like that need more than the whim of the cops to decide if it is “OK” or not.