Dunedin-Clutha police area emergency response manager Inspector Alastair Dickie said he wanted to respond to "increasing amounts of criticism of the Dunedin police for failing to act in relation to the Octagon occupation".
He said police would not enforce a trespass notice issued on October 15 by the Dunedin City Council to Occupy Dunedin protesters camping in the Octagon, because it would leave them open to being sued for breaching the Bill of Rights Act.
Legal experts yesterday said they were not surprised by that decision, and commended the police for their decision.
Insp Dickie said, when police had previously moved protesters in similar situations in the North Island, they had ended up paying out up to $100,000 to the protesters, for breaching their rights under the Bill of Rights Act.
It would be "irresponsible" of the police to risk doing that again.
"The protesters have the right under the Bill of Rights Act to protest peacefully."
Case law indicated the Act superseded lesser legislation such as council bylaws against camping.
He said police had met council staff members more than once and the position had been explained to them.
If the council wanted to move the protesters, the most effective method was for it to apply to the court for an injunction. However, that was not straightforward either, he said.
An injunction could be sought without notifying the protesters - if police lodged an affidavit with the court supporting the council application.
"This would have been the ideal course as, if the protesters failed to act on the court order to leave, the DCC could return to the court and seek a warrant, which the police could execute to remove the protesters - end of story."
The process to file a non-notified application for an injunction had started last week. However, after internal legal advice from Police National Headquarters in Wellington, Dunedin police were instructed to withdraw the affidavit.
That left the council with the option of a notified version of the injunction application process, meaning the protesters would have to be given the chance to make submissions at the court hearing for the injunction.
That could have become a drawn-out process and led to a substantial cost to the council, so it had been fiscally responsible and chosen not to proceed down that road, Insp Dickie said.
The council decided to issue a trespass notice. However, the police would not act for reasons already explained to the council.
"So, as you can see, the local police are between a rock and a hard place. They are simply keeping the peace between the pro- and the anti-protesters and dealing with any breaches of the law where it is clear they can act without being prosecuted/sued themselves."
The public should be reassured police would continue to work hard to contribute towards making Dunedin a safe and attractive place to live, Insp Dickie said.
"None of this will change. However, in regard this current issue, our hands are tied due to the legalities of the situation..."
University of Otago law professor Andrew Geddis commended the police's decision, and said just because a protest breached a bylaw it did not take it out from underneath the umbrella of the Bill of Rights Act.
It seemed police had taken on messages from both the courts and Parliament's justice and electoral committee concerning protests against then Chinese president Jiang Zemin, in 1999, where it was indicated to them that protest did need to be given a higher priority.
He also believed the trespass notice was a way to shift the problem to the police, and have them pay for the action.
"The police are not the council's private army."
In a blog post titled "Some quick legal advice for Dave Cull", which he posted yesterday, he said the council had not demonstrated it was "reasonable" for it to exercise its power to trespass people, given the trespass notices limited the protesters' rights to peacefully assemble and express themselves under the Act - meaning they probably would be of no legal effect and so enforcing them and evicting the protesters would be an unlawful action.
Chairman of the Human Rights Foundation of Aotearoa New Zealand, lawyer Tim McBride, also praised the police decision.
