A guest post by Lucy Rogers:
As readers may be aware, in February the IPCA issued a report criticising the law of protest in Aotearoa as unfit for purpose. While I think the IPCA report is inadequate as a comprehensive response to the cases in question (and it does not purport to be) it does however raise some important points.
The current system is costing a lot of money
One such point is that because there is no requirement for protest organisers to notify Police in advance of street marches, Police are having to pay exorbitant amounts of taxpayers’ money (to the tune of $25,000 a pop) for experts to create traffic management plans for street marches on main roads with less than two days’ notice.
The IPCA proposes a “mandatory” notification system
Owing to this and other concerns, the IPCA proposes a “mandatory” requirement that protest organisers provide Police with 21 days’ advance notice of specified categories of protest to facilitate adequate and cost effective policing. Nevertheless, this supposedly mandatory system would not in the IPCA’s recommendation attach criminal penalties if protest organisers do not comply. The IPCA says that the incentive for compliance would be protesters’ immunity from prosecution following compliance with parameters issued by Police in advance of the protest.
The Police already have powers to manage protests (and should do)
I am aware that many readers are likely to react with alarm to Police having powers to set parameters around protests due to the possibility of abuse. However, I remind the reader both that the Police already have powers to set parameters around protests and that this is in fact necessary to maintain public order. The Albert Park fiasco is evidence enough of that.
My proposed tweaks
Accordingly, I support the IPCA’s recommendation, but with the following two tweaks:
- 21 days’ notice is an excessive requirement. Reduce that to seven days. Seven days is reasonable when it comes to (say) protests obstructing main roads (and is actually barely enough time to facilitate effective policing).
- Make the notification system optional but formalised. This avoids the problem of categorising which protests require notification and which do not.
Protest organisers will be aware of the likelihood of a volatile response
The IPCA raise the problem of Police not necessarily being aware of which protests are likely to provoke a hostile reaction from certain sections of the public. I think an optional but formalised notification system (which is in effect what the IPCA proposes) avoids this problem because protest organisers themselves will be aware of the likelihood of a hostile response and will in turn comply with the notification system, thus avoiding the need for Police intelligence.
The notification system would require Police to maintain public order
Just as the notification system would immunise protesters against arrest following compliance with Police instructions, it would formally require Police to protect protesters from violent counter-protesters (and vice-versa). At present although officers swear to maintain public order in oaths made when admitted to the Police, I cannot find any legal provision specifically identifying penalties should they intentionally fail to do this. Legislation could make this more explicit.
The notification system would increase Police accountability
Another benefit of this system which I do not believe the IPCA have raised is that rather than leaving policing decisions in large part to officers on the day, it would enable protest organisers to challenge unfair Police directions (or inadequate protection of protesters) in court via urgent injunction. The system in fact arguably increases Police accountability.
So to conclude, I support it
Nobody believes in the right to protest more deeply than I do. In fact I would gladly die for it. But in my view this proposal would help to prevent Albert Park scenarios in future, protect the right to free speech, protect protesters from counter-protesters, protect counter-protesters from protesters, and save the taxpayer money. Not only that but as at present, people could choose not to comply with it (but with the caveat that in that case they may not expect the benefits of compliance). What’s not to like?
All of which is to say that I am an enthusiastic supporter of Police doing their jobs, and non-selectively.