NZ Bill of Rights overrides council bylaw

University of Otago law professor Andrew Geddis explains why he thinks police were correct not to bow to Dunedin City Council requests to evict Occupy Dunedin protesters from the Octagon.

I am not a part of the Occupy Dunedin protest. I can't speak for them or their aims.

In fact, I suspect the protesters themselves are somewhat uncertain as to what are their exact goals. Instead, to use a somewhat hackneyed phrase, the medium of Occupy Dunedin's protest is its primary message.

For the protesters, it is a round-the-clock reminder that the present economic system is not working for many people and a call to think collectively about a better way of structuring society.

You may or may not agree with this viewpoint. I do not think, however, anyone would argue it is not genuinely held, or that it is not worth at least some consideration.

Furthermore, by expressing this message through their occupation action, the protesters are asserting rights guaranteed to them by the New Zealand Bill of Rights Act 1990.

This enactment affirms that all of us have the right to express our opinions in any form we choose, as well as to peacefully assemble to join in collective action. These rights can then be limited only if doing so is "demonstrably justified in a free and democratic society".

When considering the Dunedin City Council's attempt to evict the Occupy Dunedin protesters from the Octagon, this background has to be kept in mind.

The protesters are exercising rights that not only are fundamental to a democratic society, but Parliament has said are of such paramount importance that they only can be limited where "demonstrably justified".

But hang on, says the council. The protesters aren't really engaged in a "protest". They are camping on a council reserve, and there are bylaws that say this behaviour is not permitted (unless the council first gives its permission).

So because the protesters' actions breach a bylaw, they are illegal. And the New Zealand Bill of Rights Act doesn't give anyone the right to conduct illegal activities, even if they claim to have a political purpose for doing so.

Therefore, if the council wants these lawbreakers off its land, it should be able to issue trespass notices and get the police to move them on. After all, that's what any other landowner could do.

I think this line of argument gets things completely wrong. First of all, the council is not a private landowner.

It is a public authority, so is legally required to respect the rights affirmed in the Bill of Rights Act.

While private landowners can kick whomsoever they choose off their land for any reason, public authorities only can use a trespass notice to stop protest actions where it is "reasonable" to do so. And that "reasonable" test requires showing that bringing an end to the particular protest action can be "demonstrably justified".

By refusing to enforce the council's trespass notices, the police effectively have said that they do not believe it is "demonstrably justified" to do so.

After all, the protesters are not really harming anyone by their actions. They may be annoying and a bit unsightly, but that's the nature of protest. Their presence may be a bit inconvenient, but putting up with inconvenience is the price we pay for respecting rights.

So while many of Dunedin's residents, perhaps even most of them, would prefer to see the protesters pack up and leave, the whole point of individual rights is that they counterbalance the majority's desire to have everyone conform to its views.

After all, if the mere disapproval of those around you is permitted to dictate the limits of what you can and can't do, what kind of society would we live in?

However, what about the fact the Occupy Dunedin encampment appears to breach the council's bylaw prohibiting camping on its reserves?

Surely that is reason enough to justify its removal? Well, maybe. But things are not quite so clear.

First of all, the fact there is a bylaw prohibiting camping does not remove the Occupy Dunedin encampment from the protection of the Bill of Rights Act.

The council cannot dictate what is and is not a valid form of "protest" simply by making a bylaw.

If it could do this, then a bylaw prohibiting people from shouting in the street would mean chanting on a protest march is outside the protection of the Bill of Rights Act. Or a bylaw prohibiting the public display of signs would mean the Bill of Rights Act doesn't apply to waving a protest placard.

Clearly that is wrong. Council bylaws must instead be consistent with the rights in the Bill of Rights Act, in that they can only limit those rights in ways that are "demonstrably justified". And if a bylaw's limit on a right can't be so justified, then the right trumps the bylaw.

Consequently, a general bylaw that says people cannot camp does not in-and-of itself strip the Occupy Dunedin protesters of the right to peacefully assemble to express their views in this manner. Instead, the question is whether the application of that bylaw to the protesters is "demonstrably justified".

That then brings us back to the same questions. What is the reason for seeking to stop the Occupy Dunedin protesters from choosing to protest in the form of an occupying encampment?

What is the precise harm they are causing that justifies applying the council's bylaw in a way that limits their legislatively affirmed rights?

In posing these questions, I do not mean to say that the protesters have a right to stay in the Octagon forever, or that the council is powerless to ever act against them.

It may be that the protest's effect will go beyond merely annoying or inconveniencing other people. So, if other groups of residents genuinely cannot use the upper Octagon for their purposes, then the issue becomes one of competing rights.

Or if the Occupy Dunedin encampment becomes a threat to the health and safety of others, then that also may be grounds to act to remove them. Or if the nature of the protest changes, so that it becomes violent or disorderly, then that also would change things.

But in the absence of providing such "demonstrably justified" reasons for removing the Occupy Dunedin protesters, the council is bound in law to respect their individual rights to gather together to express themselves in their chosen manner.

After all, the rights of citizens to have their say ought not to depend on the good graces of those wielding public power. Rather, it is for those with public power to carefully and fully justify why they are limiting the rights of those in whose name they govern.