Neil Sands
Plans to ban demonstrations outside residential homes are too broad, badly drafted and include the ‘draconian’ prospect of a jail term for simply exercising the democratic right to protest, TLANZ’s Public & Administrative Law Committee has warned.
The issue of protests outside politicians’ homes was highlighted last week by a demonstration at NZ First Leader Winston Peters’ home in Auckland, when a man allegedly smashed a window with a crowbar, showering Peters’ dog Kobe with glass.
The Summary Offences (Demonstrations Near Residential Premises) Amendment Bill was conceived before the protest at Peters’ house, with Justice Minister Paul Goldsmith saying it was a reasonable limitation, aimed at halting intrusive behaviour.
The bill passed its first reading on August 21 and is now being scrutinised by Parliament’s Justice Select Committee, which is due to report back on the bill by February 21.
In a damning assessment, the TLANZ committee said it raises grave constitutional and human-rights concerns, as well as damaging New Zealand’s reputation as a nation that values open dissent.
In a submission to Parliament’s Justice Select Committee, it said the bill “risks criminalising the very essence of civic participation”.
“While the committee acknowledges that the bill is motivated by legitimate concerns for privacy, security and the quiet enjoyment of one’s home, we submit that the proposed amendment is neither necessary nor proportionate and would impose unjustifiable limitations on the freedoms of expression, peaceful assembly and movement protected under the New Zealand Bill of Rights Act 1990,” it said.
“In our respectful view, the bill risks chilling legitimate protest activity, undermines long-standing democratic traditions and duplicates protections already available under existing law. For these reasons, the committee does not support the bill in its present form.”
‘Offends legality’
The committee said figures such as judges and government ministers, as well as some public servants and corporate executives, inevitably attracted public scrutiny.
It said tolerating such scrutiny in a democracy could be inconvenient and unpopular, but did not warrant creating a new criminal offence targeting protests outside homes.
“The social cost of deterring legitimate protest outweighs the marginal privacy benefit gained. Peaceful protest, even when uncomfortable, is an indispensable safeguard against power.”
The submission was particularly critical of the penalties included in the bill – up to three months’ jail or a $2,000 fine – saying “the availability of imprisonment for such acts is a disproportionate and draconian response”.
It said the bill’s definition of a demonstration was “extraordinarily wide, capturing everything from organised protests to a single individual with a placard”.
In addition, the vague, subjective language in the bill “offends the principle of legality” and “risks arbitrary enforcement, particularly against vulnerable, unpopular or minority groups whose messages challenge authority or social norms”.
The submission also argued the bill was unnecessary, with little empirical evidence that residential protests were causing harm at the level that justified criminalisation.
In any case, it said existing law already covers harassment, intimidation, obstruction and noise, citing the Supreme Court’s decision in Brooker v Police [2007] NZSC “which provides a carefully balanced interpretation of disorderly behaviour that reconciles expressive freedom with public order”.
Read the committee full submission here and Auckland University of Technology (AUT) law professor Kris Gledhill’s take on the issue here.
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