About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation founded in 1952 which advocates to promote human rights and maintain civil liberties.
2. We wish to make an oral submission to the Committee.

Introduction

3. The right to protest is a vital part of Aotearoa New Zealand’s democratic system as can be seen by its importance in our history. The Summary Offences (Demonstrations Near Residential Premises) Amendment Bill sets out to limit that right by banning “targeted and disruptive demonstrations” near residential premises in support of the idea that such types of protest unreasonably impinges on people’s privacy and right to enjoyment of their lives.
4. We have serious concerns about both the purpose of the bill and the implementation of those purposes within it. The need for the bill is unclear with no evidence or justification given. There are also a range of current laws that could be used to achieve similar ends without needing to pass additional legislation. Finally the details of the bill are often vague and too much discretion is given to the police officers who will be enforcing it. 
5. Our submission is in three parts, the first is a summary of the main points of the bill, the second is a discussion of the bill as a whole, the third addresses particular points and makes recommendations accordingly.
   

The bill

6. The bill is relatively brief. It creates a new offence when a person takes part in a protest (a) near any residential premise, (b) directed at an occupant of those premises, and (c) the person is causing an unreasonable disruption in relation to that premise or any other residential premises.
7. The bill then defines “unreasonable disruption” and says that the court must consider (a) the time of day that the disruption started, (b) and ended, (c) the duration, (d) the actions of the demonstrators, (e) the level of noise, and (f) the distance between the demonstrators and the premises.
8. The penalty is a prison term up to 3 months or a fine up to $2000.
9. It is worth noting that the bill does not contain any further requirements before people are charged. In particular there is no need to give a warning before arresting and charging people. Such warnings are standard components of similar powers.¹
   

Analysis

Purpose and justification

10. The Regulatory Impact Statement says “The primary objective of this proposal is to ensure that the law appropriately balances people’s right to privacy (including quiet enjoyment of their homes) and the public’s right to protest.”² The RIS contains no evidence of protest outside residences being a serious problem, but refers to the recent report from the Independent Police Conduct Authority, The Policing of Public Protests in New Zealand, which is apparently where the idea for this bill came from.
11. The IPCA report also contains no evidence that there is a problem with protests outside residences in Aotearoa New Zealand.³ While there is some general discussion of the issue, not one example is given, and the recommendation seems to be driven by legislative trends overseas rather than anything that is happening on the ground in this country.
12. It appears that this law is not based on any research or clear evidence of a real problem, but is rather based on speculation from the IPCA.
13. It seems clear that the need for this bill has not been proven and therefore the restrictions on our rights cannot be justified, as the New Zealand Bill of Rights Act requires for any such limitation.

Existing laws appear to be sufficient

14. The Regulatory Impact Statement makes the claim that Police are “not empowered to intervene in protests that are causing significant disruption or distress to residents”.⁴ We are sceptical of this claim.
15. Police already arrest protesters using their powers under a number of sections in the Summary Offences Act or Crimes Act, including disorderly behaviour, offensive behaviour or language, disorderly assembly, disorderly behaviour on private premises, trespass, wilful damage, intimidation, obstructing a public way, and the catch-all of being detained and removed from the protest for breach of the peace.
16. We also note that many local governments have noise control regulations and these were used successfully to quiet a protest outside a politician’s home just a few days ago.
17. The IPCA report The Policing of Public Protests in New Zealand does agree that there are a number of existing laws that Police already use in policing protests.⁵ While it claims some of these laws have shortcomings, one of the main arguments they make for the creation of this residential protest law is because their other recommended law would limit the use of those existing laws:

“the carveout of protest activity from certain offences we propose above (see paragraph 260) would mean that current disorderly offences would no longer apply to this type of protest activity”⁶

18. In other words, the IPCA report that inspired this bill says that the ‘protests outside private homes’ law change is only needed if their other recommended changes are also proceeded with. 
19. The Ministry of Justice have told the Council and other organisations that they are not undertaking any work to develop policy or law following the IPCA report. At the time of writing we are therefore not aware of any plans to introduce a bill to enact the rest of the recommendations from the IPCA report. Without this, the claimed logic for this bill does not exist, rendering the proposal even less credible. This is a crucial issue to which the Committee should pay close attention and demand answers from the Minister and officials.

Right to protest protected in New Zealand law

20. The right to protest is an important part of Aotearoa New Zealand’s democracy. This right is partly based on international law such as Article 20(1) of the Universal Declaration of Human Rights, and article 21 of the International Covenant on Civil and Political Rights.
21. In New Zealand the right to protest is found in the New Zealand Bill of Rights Act. Sections 14, 16, and 17 of the Act state respectively:
    1. “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”
    2. “Everyone has the right to freedom of peaceful assembly.” 
    3. “Everyone has the right to freedom of association.”
22. Of course these rights can be limited. Section 5 states however that they “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
23. The tradition of protest in Aotearoa New Zealand includes behaviour that would otherwise be unacceptable, including excess noise, interference with access to places, blocking roads, and otherwise interfering with others going about their business. Most people accept this as part of the price of living in a democracy, and know that they have been components of protests that have won people their rights, achieved changes in policy or legislation, and protected areas of our country from improper exploitation or other environmental damage.
24. This analysis is supported by the long history of New Zealand court cases concerning protest and the question of what limitations can be justified. It seems safe to say that the courts have generally accepted the general view that political protest can include disruption and interference.

Some residences should be acceptable protest targets

25. Protest outside residences is not inherently wrong and there is a long history of it in New Zealand. 
26. Even if we accept the premise of the bill, it does not differentiate between different types of residential premises. There is no consideration of the difference between, for example, Government House, Premier House, an embassy including an ambassador’s residence, an apartment block across the road from Parliament, and a house in the suburbs.
27. Some of these differences are practical. If a politician lives in an apartment across the road from Parliament, and protesters stage a protest in the grounds of Parliament targeting a policy of that politician, technically they could be caught up in this bill because they are close to the politician’s residence.
28. Other differences are political. If one is protesting the actions of a foreign country, mounting a protest at the country’s embassy seems reasonable. Will this bill be used to stop such protests if the ambassador or their staff live on site? Would the powers in this bill be used to stop protests against Russia’s invasion of Ukraine? Would they be used to stop protests against Indonesia’s treatment of people in West Papua? If there is any variation in application of the law in relation to protests outside embassies that contain residences, what will the criteria be? How transparent will the police application of these criteria be? The Council is sure that the Committee can see that there is far too much scope under the bill for the police to get drawn into disputes about politicised application of this law, in ways that will undermine police credibility and public trust in them.

Comparison with Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Act

29. The Council recently submitted in favour of the law that provided for bans of certain sorts of protest outside clinics that provide abortion services. While this interfered with people’s right to protest we believed that, on balance, the restriction could be justified. We believe that comparing the two may be illuminating.
30. The Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill (the Safe Areas Bill) was in response to a real and obvious problem where people seeking highly sensitive medical care were being publicly abused, and some were thus intimidated from seeking the care that they needed and to which they have a right under Article 12 of the International Covenant on Economic, Social and Cultural Rights. 
31. The Safe Areas Bill allowed for the creation of 150m zones around clinics. These zones had to be applied for and approved. In actuality there were likely to be only a few created across the entire country.
32. The Safe Areas Bill required a constable to warn someone to stop their behaviour before they could be arrested. 
33. This compares with this bill which:
    1. Has no obvious justification, not being based on a real problem,
    2. Turns every residence in the country into a protest-limited zone,
    3. Has no warning required before arrest.
34. The Safe Areas Bill was a carefully limited response to a real problem and thus the limitations on our rights could be justified. This is not true of this bill.

Punishment rather than stopping the problem

35. The purpose of this bill is to stop disruptive and targeted protests outside residences. However, the bill does not contain any requirement to issue a warning or an order to stop the problem behaviour before being arrested.
36. If the purpose of this bill is to stop the problematic behaviour, it seems that the first step should be to formally warn the people that they should stop. Arrests would only be required if the problematic behaviour continues.
37. The lack of a requirement for a warning means that the bill seems focused on punishment with fines and jail sentences, rather than at stopping anti-social behaviour in the first place.

Limiting the scope of protest

38. We are concerned that the underlying message of this bill is to limit protest rights across a large part of the country (anywhere near a residence). It further limits protest rights by concentrating on the manner of the protest, dividing protest into ‘acceptably inoffensive’ and ‘unacceptably disruptive’, and requiring the police to make that judgement. Given the experience of differential application of the law in relation to the rich and powerful, this is a recipe for unfair discrimination in practice.
39. This is at a time when we are seeing governments in other countries that we often compare ourselves to such as the USA, Australia and the UK also passing laws to limit political protests. The same is happening New Zealand, with proposed changes to the Terrorism Suppression Act, and the IPCA’s further proposal to introduce a permitting and fees scheme for public protest.
40. This bill contributes to eroding the acceptable scope of political protest. It prioritises comfort over being challenged and quiet over speaking up. It limits both where protest can happen and how protest can be done.
41. It seems to us that at a time when democracy is under attack across the world, we should be shoring up our democratic rights rather than limiting them.

Room for scope creep

42. Once we accept that we can stop protests outside residences, it seems obvious that once this is normalised it could be extended to other locations such as schools, workplaces, sportsgrounds, etc. We’ve already seen a leading politician referring to a quiet protest by priests outside their electorate office as “intimidating”.
43. If this bill passes, it would seem too easy for politicians to amend the law to extend the scope of where it applies, while simultaneously reducing the acceptable behaviour of protests in those areas.

Recommendations

44. While we are opposed to the bill as a whole, if the Committee does consider it should be passed we make the following recommendations to improve it.

Definitions

45. We are concerned at the hazy definitions used in the bill. Just how near is “near any residential premises”? How much disruption is needed to trigger “disruption to the ability of any regular occupant of those premises to enter or leave those premises”? Should this be dependent on something objective like measuring the noise level over a period of time?

Exclusion of some residences

46. Exclude some types of residences because they are legitimate locations for protest. This would include Government House, Premier House, embassies, ambassadorial residences, and residences within 500 metres of Parliament.
47. Further, due to the ever increasing use of mixed zoning, Parliament should be careful to avoid giving MPs the power to use residences as shields for their constituency offices, simply by locating those offices in mixed use neighbourhoods.

Warning before arrest

48. Add a requirement for a warning to be given, with arrest only possible after the warning has been ignored.

Senior police officer required

49. The bill relies significantly on the judgement of the police office involved as to whether the protest can be considered to be disruptive. As this determination involves restricting important rights, we believe it is appropriate that this determination should be required to be made by a senior officer.

Reduce penalties

50. The penalty of up to 3 months prison or a fine of $2000 for this offence seems excessive, especially as the main purpose should be to stop the problematic behaviour. We believe that a more suitable level of penalty would be a fine of up to $1000 and no prison term. This is the same as provided by the Contraception, Sterilisation, and Abortion (Safe Areas) Act for people arrested for protesting in a restricted zone.

Conclusion

51. Protest is an important part of our democracy in Aotearoa New Zealand. Political protest has been a key part of a lot of positive changes in our country. We should not be limiting the right to protest without strong evidence in support of it. No such evidence has been presented.
52. The requirement for this bill is unclear at best, and the associated reports fail to establish a need for it. However, it is a clear limitation on our democratic rights. With no need for the bill being established, there is no way that these limitations can be justified.
53. Furthermore, it seems clear that existing law is sufficient, with the Police showing repeatedly that they already have the powers to arrest protesters. The IPCA report that inspired this bill even says that the law change will be needed only because of other changes they also wish to make around protest laws. These changes are currently not being made and therefore it would seem that the current law is sufficient.
54. We recommend withdrawing the bill.
55. If the bill is not withdrawn, we recommend making changes to improve it. These include requiring a warning before arrest, tightening up definitions, reducing penalties, and requiring a more senior police officer to make the decision about applying the law.

1. A few examples of warnings for similar powers:
   Section 5A of the Summary Offences Act: Disorderly Assembly
   Section 22 of the Summary Offences Act: Obstructing public way
   Section 13A of Contraception, Sterilisation, and Abortion Act: Certain behaviour prohibited in safe areas ↩︎
2. Regulatory Impact Statement para 9 ↩︎
3. IPCA report paras 276 – 279 ↩︎
4. Regulatory Impact Statement page 2 ↩︎
5. IPCA report para 67 ↩︎
6. IPCA report para 276 ↩︎