Too Much Protest, methinks - Part 3

Independent Police Conduct Authority Policing and the Bureaucracy of Public Protest

This is Part 3 of a three-part series considering the Independent Police Conduct Authority (IPCA) report on public protest.

This part examines the approach of the IPCA Report which suggests that the current legal framework – if one could call it that – is inadequate and that there should be specific legislative provision to enable the Police to respond in an orderly and constructive way.

The impact and advisability of these proposals will be considered leading to a conclusion that better education and training is required within the Police rather than a bureaucratic structure which may constrain protest, the freedom of association, assembly and expression.

The IPCA Report

The IPCA Report was prepared against a backdrop of complaints about Police handling of recent protests, including the Posie Parker protest in Albert Park and incidents flowing from a Palestine Solidarity Network Aotearoa Protest in November 2023.

The concerns arose because as the report puts it at Para 9

“The operational impact of a lack of statutory guidance is that Police often act in a vacuum, left to their own decisions to make judgments as to reasonableness. When, if ever, is it reasonable to ask a counter-protestor to leave a protest? When is it reasonable to disallow a protest on a main road to proceed, because of the level of disruption it may cause to other members of the public? When is it reasonable to ask counter-protestors to stand in a separate area from the protest? When, if ever, is it reasonable to remove a counter-protestor’s banner because of fear it will provoke violence by the main protest group? Is it reasonable to focus attention on the smaller of the protesting or counter-protesting group because of limited Police resources?”

Essentially there is an issue with the law. There is no statute providing guidance for the Police. But interestingly enough the Police seem to have managed to deal with protests in a variety of ways – not all of them satisfactory – since 1946.

Yet there seem to be some problems. These can be summarized as follows:

Lack of Overarching Legislative Guidance: There is no comprehensive public order or protest legislation, leaving police to make judgments on reasonable restrictions on protestors' rights with only high-level guidance from statutes and case law. This results in inconsistency and uncertainty in police actions.

Inconsistent Council Bylaws: Council bylaws governing notification and approval of events in public spaces are inconsistent, often vague, and rarely enforced. This hampers the police's ability to plan and deploy resources effectively.

Limited Law Enforcement Powers: The police have limited powers to set and enforce reasonable limits on protests in advance. Their powers are spread across multiple statutes, with insufficient guidance on their consistent use in line with the Bill of Rights Act.

Operational Challenges: Police often act in a vacuum, making decisions on the ground without clear statutory guidance. This includes determining when it is reasonable to ask a counter-protestor to leave, disallow a protest on a main road, or remove a provocative banner.

Resource Constraints: The absence of an effective notification requirement for protests impacts the police's ability to plan and deploy adequate resources, often leading to ad hoc decisions by frontline officers.

Training and Policy Gaps: There are gaps in police policies, processes, and training related to public order policing, including balancing rights and understanding crowd dynamics.

Possible solutions

The IPCA Report suggests that there should be new legislation which should include a regulatory regime for advance notification by organizers of designated types of assemblies, including protests, and the ability for police to set conditions in advance.

It does not specifically address assemblies held within halls or buildings. The primary concern is with public order and safety in open public spaces.

The proposed scheme for the notification of public assemblies, as outlined in the Report, primarily focuses on assemblies in public spaces such as roads, footpaths, and public places like parks and squares.

The emphasis is on managing protests and public assemblies that occur in open public spaces where they are likely to cause disruption or require traffic management.

The Report suggests that Legislative guidance to answer the problem is needed for the following reasons:

The Complexity of the Protest Environment: The protest environment is becoming increasingly complex, with disparate groups coming together to protest and counter-protest, and the tactics used in protests are also becoming more sophisticated. ​

The Lack of Legislative Guidance: New Zealand lacks comprehensive legislative guidance on how to balance the rights to freedom of assembly and speech with other rights such as public safety. ​ This leaves Police officers to make subjective judgments without clear statutory direction. ​

The Need for Clearer Enforcement Powers: The current legal framework does not provide clear and consistent enforcement powers for Police during protests, leading to variability in decision-making and potential misuse of powers. ​

Protection of Rights: Legislative guidance would help ensure that the rights to freedom of assembly and speech are protected while also maintaining public order and safety. ​ It would provide a structured framework for Police to operate within, reducing the risk of arbitrary or inconsistent actions. ​

Advance Notification and Condition Setting: A statutory regime for advance notification of protests and the ability to set conditions would allow for better planning and resource allocation, helping to minimize disruption and ensure safety. ​

Training and Policy Improvements: Legislative guidance would support the development of better Police policies, processes, and training, ensuring that officers are equipped to handle protests in a way that respects fundamental rights and maintains public order.

Elements of Legislative Guidance Sought

The IPCA Report seeks comprehensive legislative guidance to create a more coherent and effective framework for managing protests while protecting the fundamental rights of freedom of assembly, movement, and expression.

The key elements of the legislative guidance are as follows:

1. Overarching Legislative Framework:

   • The document proposes the introduction of new standalone legislation that would provide clear principles and processes for regulating and managing public assemblies, including protests. ​ This legislation would articulate how to balance the rights of freedom of assembly and expression with other rights, such as public safety. ​

2. Notification and Planning for Protests:

   • A new regulatory regime for advance notification by organizers of designated types of assemblies (including protests) is recommended. ​ This would allow police and local authorities to plan and set conditions in advance to ensure public safety and minimize disruption. ​

   • The legislation should specify the process for notification, including the information required and the timeframe for providing notice. ​

3. Condition-Setting Powers:

   • The legislation should empower the local Police District Commander (or appropriate delegate), in consultation with the local authority, to set conditions in advance with which participants must comply. ​ These conditions could include time, place, and manner restrictions to reduce risks to safety, prevent serious public disorder, and minimize disruption. ​

   • The senior police officer on the ground should also have the ability to set and adjust conditions during the course of an assembly. ​

4. Legal Protections and Consequences:

   • The legislation should provide legal protections for participants who comply with the notification and condition-setting requirements. ​ Conversely, it should outline the consequences for failing to notify or comply with conditions, such as the removal of legal protections or the imposition of penalties. ​

5. Specific Offences for Public Assemblies:

   • The document recommends creating specific offences tailored for the public assembly environment, such as interfering with critical infrastructure and picketing private residences. ​ These offences would provide clearer guidance and more appropriate tools for police to manage protests. ​

6. Review and Appeal Mechanisms:

   • The legislation should include provisions for an independent review mechanism if conditions are imposed in advance. ​ This could involve urgent applications to the court or a judicial review officer to ensure that conditions are reasonable and necessary. ​

7. Traffic Management Plans:

   • The legislation should specify whether police or local authorities are responsible for developing traffic management plans when required for public assemblies on roads. ​ It should also provide a procedure for imposing the cost of developing and implementing these plans on the organizers of the event. ​

8. Training and Guidance for Police:

   • The document emphasizes the need for enhanced training and guidance for police officers on balancing rights and managing protests. ​ This includes incorporating human rights considerations into risk assessments and understanding crowd dynamics. ​

By providing clear legislative guidance, the proposed framework aims to ensure that protests are managed effectively, public safety is maintained, and the rights of protestors are protected. ​

What Are the proposals for Notification of Protests

The document proposes a new regulatory regime for the notification of protests to improve planning and management while protecting the rights of protestors. ​ Here are the key proposals for the notification of protests which reflect and restate the elements of legislative guidance:

1. Mandatory Notification Requirement:

This would introduce a requirement for advance notification by organizers of designated types of assemblies, including protests. ​ This would help police and local authorities plan and set conditions to ensure public safety and minimize disruption. ​

2. Scope of Notification:

The notification requirement should apply to assemblies on public roads and events that comprise an occupation of a public place by 20 people or more for a minimum period (e.g., 12 hours or overnight). ​ This would cover protests likely to cause significant disruption or require traffic management. ​

3. Notification Process:

Notification should be made to local authorities, who would then liaise with police to discuss the form of the protest, any necessary changes to minimize disruption, traffic management, and safety concerns. ​

The notification should include details such as the organizer's particulars, the purpose of the assembly, the date, time, and place or route of the event, its expected duration, and the expected number of participants. ​

4. Timeframe for Notification:

Organizers should provide at least 21 days' advance notice unless it is not reasonably practicable to do so. ​

In such cases, notice should be given at the earliest reasonable opportunity, and in any event, not later than five working days before the date of the protest. ​

5. Legal Protections for Compliance:

The proposal is to provide legal protections for participants who comply with the notification and condition-setting requirements. ​ This would incentivize compliance and ensure that protestors who follow the rules are not subject to criminal or civil liability for obstruction of a public place. ​

6. Consequences for Non-Compliance:

If organizers fail to notify or comply with conditions, they would lose the legal protections provided to compliant protestors. This approach aims to encourage voluntary compliance without criminalizing the failure to notify. ​

7. Setting Conditions in Advance:

Enable the local Police District Commander (or appropriate delegate), in consultation with the local authority, to set conditions in advance with which participants must comply. ​ These conditions could include time, place, and manner restrictions to reduce risks to safety, prevent serious public disorder, and minimize disruption. ​

8. Review Mechanism:

Include provisions for an independent review mechanism if conditions are imposed in advance. ​ This could involve urgent applications to the court or a judicial review officer to ensure that conditions are reasonable and necessary. ​

9. Traffic Management Plans:

Specify whether police or local authorities are responsible for developing traffic management plans when required for public assemblies on roads. ​ Provide a procedure for imposing the cost of developing and implementing these plans on the organizers of the event. ​

The implementation of these proposals would create a more structured and predictable framework for managing protests, ensuring public safety, and protecting the rights of protestors. ​

There are two issues that arise immediately from these proposals.

The first is that it ignores the fact that many protests are spontaneous. The proposal envisages planned, organised and structured protests. Because of non-compliance with notification requirements those engaged in a spontaneous protest would lose the protection of the law proposed in the Report.

The second issue is that nothing is proposed that would address the issue of the counter-protest. It would be artificial to suggest that a counter-protest should provide similar notifications and comply with the variety of rules that are proposed. The inevitable question that arises is whether or not the counter-protest would be enabled to shut down what could be called the primary protest as was the case with the Let Women Speak (Posie Parker) incident.

Proposed Offence Changes

The IPCA Report proposes several changes and new provisions regarding offences to better manage protests and ensure public safety while protecting the rights of protestors.

These are the main points discussed in the report.

1. Reform of Existing Offences:

Amend the criminal nuisance offence in section 145 of the Crimes Act 1961 to include negligence as a mental element, allowing for prosecution when a person fails to take reasonable care to avert an evident danger.

Introduce “carve-outs” in sections 3 and 4 of the Summary Offences Act 1981 (disorderly and offensive behavior) and section 23 of the Summary Offences Act 1981 (obstruction) to exclude their use in the public assembly environment. This would prevent these offences from being misapplied in protest situations.

2. New Offence Provisions:

Include a provision in the new legislation that would give police the power to give reasonable instructions to a particular person or persons in defined circumstances, with an accompanying arrestable offence for failing to comply. This would be analogous to the power available to police under sections 197 and 200 of the New South Wales Law Enforcement (Powers and Responsibilities) Act 2002.

Create a specific offence of picketing a private residence to address the increasing occurrence of protests targeting individuals at their homes, which can be highly disruptive and intimidating.

Create a specific offence of knowingly or recklessly impeding access to critical infrastructure. This would cover actions such as blocking access to airports, railway stations, key transport routes, and essential services, which are not adequately addressed by current public order offences.

3. Condition-Setting and Compliance:

Establish an offence for protest organizers who fail to use reasonable endeavors to communicate conditions to participants. This would ensure that organizers take responsibility for informing participants of any conditions set by police or local authorities.

Create an offence for protest participants who knowingly fail to comply with a condition set by police or local authorities. This would provide a clear legal basis for enforcement when participants disregard conditions designed to ensure public safety and minimize disruption.

4. Review and Appeal Mechanisms:

Include provisions for an independent review mechanism if conditions are imposed in advance. This could involve urgent applications to the court or a judicial review officer to ensure that conditions are reasonable and necessary.

By implementing these proposals, the Police will have clearer guidance and more appropriate tools for them to manage protests, ensuring public safety and minimizing undue disruption while protecting the rights of protestors.

Commentary on the Proposals

There has been understandable concern expressed about the proposals in the IPCA Report.

Sapeer Mayron writing in the Post for 19 February 2025 observed

“A proposal to manage protests and more clearly define how they should be policed has activists and lawyers concerned for Aotearoa’s enshrined rights to protest.”

A well-known protester, Valerie Morse, who has featured in some of the leading cases about the law surrounding protest and Police action claimed the proposals were horrifying. She suggested that the Police should not have the opportunity to determine what was and was not acceptable protest, or to set conditions against the threat of prosecution.

Ms. Morse stated:

“It is intended to render protest acceptable to the powerful and empower police to defang protests to make them less effective. This has nothing to do with what’s legal or reasonable. I have no faith in the police to be able to determine that, particularly in advance or on the ground.”

The Council for Civil Liberties, not unsurprisingly, expressed total opposition to the idea

Dr Amanda Thomas wrote an article published in Newsroom about the importance of protest. She was focusing on climate and environmental activism but she had some interesting general comments on the possible impact of the IPCA proposals if enacted. She writes:

“Yet while I was disturbed by recommendations of the Independent Police Conduct Authority to increase police powers and constrain protest, I wasn’t entirely surprised. The trend to repress and criminalise protest, particularly activism related to climate justice and Palestinian freedom, has been creeping across liberal democracies in recent years.

Many countries have proposed or introduced laws that bolster policing powers and broaden punishments for environmental activists. For example, police in south-east England listed Extinction Rebellion as an extremist ideology in a guide shared with teachers. In 2024, the UK’s adviser on political violence proposed banning two groups, Just Stop Oil and Palestine Action, arguing “disruption” by activists is a threat to democracy.”

She goes on to observe

“Last year saw the largest march in Aotearoa’s history as people resisted the Treaty Principles Bill and, through their organising and manaakitanga, demonstrated Te Tiriti in action. The organising across the motu against Israel’s genocide has seen weekly meet-ups in towns of all sizes – Rāwene, Nelson and Christchurch. It has been many decades since an international issue generated that level of sustained mobilisation.

Protest – even actions that cause significant inconvenience to people – has always been and should continue to be a part of our democratic fabric. In the wake of the Independent Police Conduct Authority report, we will see attempts to build a case to repress protest in the name of health and safety and, confusingly, free speech.”

That last observation is confusing indeed and I fail to see how a new web of laws encompassing protest can be said to foster freedom of expression.

There are a number of matters that occurred to me as I was considering this article.

The first is whether or not this is a valid problem. The report starts with a reasonable summary of the law, reviewing the international a domestic human rights framework which is reasonably clear.

The problem is that IPCA doesn’t see it that way, arguing that there is no general legislative definition of what reasonable limitations might look like, nor how reasonable limitations might be applied in the protest context.

This seems to ignore the fact that, as I have outlined earlier in this article, the Police have been dealing with protests and the changing protest landscape and have been adapting their tactics to encompass changing methods of protest as well as changing social attitudes and expectations.

In addition there is, since the enactment of NZBORA 35 years of jurisprudence on protests including a detailed framework for the assessment of justified limitations, and a significant amount of caselaw around protest rights.

IPCA refers to that caselaw later in the report, but largely to suggest that the law is "uncertain" when it is not. Largely they seem to be concerned that when stuff gets to court, police decisions are overturned.

Although it is rather simplistic the law relating to protest is clear. People allowed to protest peacefully even although this may result in minor disruption of vehicular or pedestrian movement or daily activities.

Protest groups who trespass or block roads are not doing it because they think it is legal - on the contrary, they know it is not, and they expect arrest, and maybe prosecution.

It would seem that those who claim to lack a clear understanding of the law are those charged with enforcing it.

Rather than educating themselves, with better training and a nationally consistent approach, the IPCA proposals limit our rights with a consequential impact our democracy for their own convenience.

There seem to be a few facets to the problem that might be advanced for some sort of legislative intervention.

1. Poor training of Police in understanding the law and competing interests – as is demonstrated in the treatment of counter-protesters in the Palestine protest cases set out in the IPCA Appendix.

2. Poor training of the Police in proper crowd management and control – that was obvious from the report on the “Let Women Speak” Albert Park protest and counter-protest.

3. A creeping case of “decision paralysis” on the part of Police officers “on the ground” which may have been influenced from a changing approach to “policing by consent” developed by a former Police Commissioner. I might add that decision paralysis is not only taking place from time to time with the Police but within the wider society and especially on the part of official institutions.

4. A desire by IPCA to reduce the number of complaints arising from Police actions at protests – evidence by the complaints that were considered and documented in the appendices to the Report.

A consideration of the proposals legislation that would provide a framework within which the Police could act in dealing with protests. But then there is a bureaucracy with notification requirements and the imposition of conditions and with a proposed 21 day time frame.

Compliance with these requirements means that the protesters would have the benefit of legal protections. Non compliance would render the protest illegal and subject the protesters to prosecutions for offences.

What does this mean. It means that it would be easier for Police to manage protest events. It means that protest activity could be constrained. It would mean that the spontaneous nature of protest would be nullified. It means that protest activity and the freedom of expression associated with it would be wrapped in legal chains to such an extent that the impact of protest would be diluted to something anodyne. And that would be a loss to our democracy and the right of the people to voice their opinions.

In addition little is said about counter-protests and the bizarre situation arises where a protest group complies with the bureaucratic procedures set by the Police but a counter-protest group does not, simply because it doesn’t meet the time requirements. Does this mean that if they turn up their side of the argument is illegal?

The question is do we need a new set of laws constricting the right to protest or do we need a better trained and more responsive Police force. I would suggest the latter and indeed the IPCA Report sets out internal steps that need to be taken by the Police to deal with protest.

Concluding Thoughts.

The problem with counter-protests is the relativistic approach that has been adopted to the freedom of expression, freedom of association and the right to protest.

The freedom of expression should receive elevated protection. This approach has been dismissed by the Courts as more attuned to US First Amendment approach, but it could operate here if more respect were accorded to the freedom of expression.

The starting point should be the protest. It must be peaceful. It is an exercise of the freedom of expression, peaceful assembly and association and the protesters are entitled to Police protection to enable their peaceful protest to continue.

If the protesters are confronted by a hostile crowd or noisy counter-protesters the Police’s primary duty is to ensure that the primary protester may continue. The Police should not use the presence of counter-protesters as a reason to shut down the primary protest.

The Police however must recognize the freedom of expression rights of the counter protesters and should ensure that a reasonable distance is maintained between the two groups to ensure the safety of either is not compromised. The Police must make bona fide efforts to protect both groups from each other.

Only if there is an imminent threat to the safety of either group should the Police take steps to bring the protests by both groups to an end.

This admittedly is based on the Bible Believers v Wayne County, Michigan case. Perhaps a more sympathetic approach by New Zealand Courts to US First Amendment jurisprudence would be helpful to the cause of freedom of expression rather than the relativistic reliance on what amounts to a reasonable limitation.

The focus should be upon taking steps to ensure rather than limit the freedom of expression.

And limiting and constraining the freedom of expression and the right to protest is an inevitable consequence of the IPCA proposals. One can only hope that they will go no further and that the Police will look within themselves for solutions rather than turning to the legislature for guidance in telling them what to do.