The Dunedin City Council has tired of the Occupy Dunedin protest and wants it gone. So why is it still there?

The Occupy [Insert Place Name Here] protest movement has sparked a whole lot of head scratching "but what does it all mean?" analysis, without yet reaching any widely accepted conclusions. (For previous contributions by Punditeers to that literature, see here and here.)

In part, that's because at least some analysers seem only to find confirmation of what they expected to see before looking at the event. So on the right, Cactus Kate discovered (to her immense surprise, I am sure) that the Occupy Auckland protesters were a bunch of inept, lazy, stoned whingers; with DPF then gushingly praising this deep analysis as "the best journalism to date on the occupiers". Over on the left, I/S hails it as a "protest against inequality and economic insecurity and for greater democracy", but "Bill" at The Standard bemoans the fact that "in New Zealand the occupations are heavy with the influence of hierarchy and project a degree of exclusivity" because some traditional socialist groups are involved in them. Once again, the People's Front of Judea views the existence of the Judean People's Front as a greater problem than Roman tyranny.

However, the principle reason for the head scratching confusion is that the Occupy movement itself doesn't really know what it wants - beyond the obvious "change from the status quo" and "a different way of doing things". Not that there's anything wrong with these things, of course. Nor is there real criticism involved in saying the Occupy movement hasn't got a blueprint to tell us all what to do next. Basically, the current economic clusterfuck has everyone wandering around in a bit of a daze - including our supposed visionary leaders whose job it is to run the world. So expecting a bunch of folks sitting around in tents to generate a detailed plan to reshape all of our socio-politico-economic order (whilst also cooking, cleaning and dealing with random drunken attackers) is perhaps a bit much to ask.

What, though, of the Occupy movement's future? Well, given that there is no cohesive core to it, that's as hard to discern as is its meaning. And the fact there are occupations in places as diverse as Manhattan, Frankfurt, Belfast and Dunedin makes it likely there'll be a bunch of different futures, rather than one common one. But something most (if not all) the Occupy protests will face at some point in time is a bunch of city officials who think they've been there long enough, are something of a nuisance, and so want the police to jump in and move them along. It's already happened in MelbourneSydney and Oakland. The mayor of New York, Michael Bloomburg, is grappling with the issue of whether (or more likely, when) to take similar action against the original Occupy Wall Street protest site in lower Manhattan. And here in Dunedin, on November 1 the City Council issued trespass notices to those participating in the occupation of the upper Octagon; a move described by the Otago Daily Times as being a "test case" for other local authorities.

So does this mean the clock is ticking for New Zealand's participation in the Occupy movement? Well, perhaps not. The Occupy Dunedin tents still remain in place some five days after the Council's deadline expired. And while Dunedin's mayor apparently wants the police to make a quick decision on what to do about the protest (while at the same time, it should be noted, offering the protesters a compromise solution to the stand-off), the police seem in no hurry to do so. So what gives?

Well, the police simply don't seem as convinced as is the DCC that there are grounds in law to kick the Occupy Dunedin participants off their chosen place of protest. So they've gone off to get their own legal advice on that question ... which I suspect will go something like this.

The DCC can, as a landowner, issue trespass notices under the Trespass Act. And a breach of such a notice (i.e. staying on the upper Octagon after being told to leave) is an offence, which the Police can arrest you for. However, and this is pretty critical, where the DCC's issuance of a trespass order will have the effect of limiting a right under the NZ Bill of Rights Act, then that issuance will only be valid if it is "reasonable" for the DCC to limit that right in that way. The High Court held this in a case in the late 1990s, Police v Beggs, which dealt with the Speaker of the House trying to use a trespass notice to put a stop to a student protest on Parliament's grounds ... Graeme Edgeler discusses it here.

So, the question thus is whether it is "reasonable" for the DCC to issue trespass notices to the Occupy Dunedin participants, thereby limiting their NZ Bill of Rights Act protected right to peacefully assemble. If it is, then the notices are valid and the police can act to enforce them (through arrests, if need be). If it is not, then the notices are not valid, and so they have no legal effect ... and if the police were to enforce them then the police would be breaching the law and so could be liable to pay damages to the protestors (as could the DCC).

What, then, constitutes a "reasonable" issuance of a trespass notice by the DCC against the Occupy Dunedin protestors? Before getting to the possible grounds for justifying this action, there's one claim that can be rejected. The DCC has argued that because the protestors are in breach of a bunch of by-laws governing the use of council reserves and prohibiting camping, the Occupy Dunedin protest is "illegal" and so not protected by the NZ Bill of Rights Act ... which it claims only permits "lawful protest in a lawful manner". With all due respect, this analysis gets things completely around the wrong way. The real question is whether these by-laws can be applied to the protestors in a way that is consistent with their rights under the NZ Bill of Rights Act - including their right to peacefully assemble. If the by-laws can be so applied, then they must be applied in that way. But if they don't allow for such a rights-consistent application, then the by-law itself is invalid and of no effect. Or, to make a long story short, the DCC cannot simply prohibit a form of protest through a by-law and then claim that this form of protest is no longer protected by the NZ Bill of Rights Act because it has chosen to make it illegal. Instead, the DCC must show that applying its by-laws in a way that stops a given protest from occuring is a "reasonable" (actually, a "demonstrably justified in a free and democratic society") limit on the protesters' rights. If it can't do that, then the NZ Bill of Right's protection for those rights trumps the by-law.

So if the simple argument "they're breaking by-laws, therefore we can kick them off our land" isn't enough in and of itself to make the issuance of a trespass notice reasonable, then what is? Here we get into a set of criteria set out by the High Court in Beggs. Those are multi-variate and a bit too long to elaborate in an already overly lengthy post. But what it boils down to for me is, why exactly does the DCC want to move the protesters on? What's its basic reason for saying that the camp in the Octagon is no longer tolerable?

Here the DCC has been a bit light on specifics. The letters linked to above make vague references to "the wider public's right to use the area", wanting to have the Octogon "available to all members of the community", and "allowing other community groups access to this important community space". But how exactly are the Occupy Dunedin protesters interfering with this? There's no suggestion that they are seeking to stop anyone wandering amongst their tents or are denying anyone else's right to enter their camp. (Indeed, any aggression seems to have come from drunks exiting the many nearby Octagon bars and deciding the protest is a provocation they cannot resist.) There's still plenty of room on the upper Octagon for the usual lunchtime groups to sit, eat and chat. And if there are "other community groups" wishing to use that space (but unable to do so because of the protest), just who are they and why can't their requirements be met alongside the protesters?

So what the DCC's objection really seems to boil down to is "you're camping on "our" land when we don't actually want people camping on it, and there may be some people who might want to use that land for something else ... even if we can't say who they are or why they can't use it anyway." This, it seems to me, is not a strong basis for saying that people may not exercise their fundamental protest rights, as affirmed in the NZ Bill of Rights Act. And if there isn't a very good reason for using the power to issue trespass notices to halt a protest activity, then it isn't "reasonable" for the DCC to use it. Which is why I suspect the police are taking so long to decide what to do here - do they really want to end up carrying the can for the DCC's impatience on this issue?

Finally, the cynic in me cannot help but wonder if this story, detailing the Mayor's concerns about vandalism and "a noticeable increase in both types of human waste" in public areas since the protest began, doesn't mark the opening of a second front. Because if the claim "the protestors are interfering with a public space" argument won't carry the day, then perhaps the claim "they're causing damage and a health-and-safety risk" might work a little better?

Comments (4)

by Dean Knight on November 07, 2011
Dean Knight

Andrew:

Good stuff. I've been too damn busy (writing, not occupying St Pauls here in London) to blog on this, but am pleased you've posted something.

You might also want to look at Police v Abbott [2009] NZAR 705, which deals with the issue of local authorities issuing trespass notices on roads.  It adopts the Beggs approach and is consistent with your analysis.

One further fish-hook though.  The Court of Appeal seems to accept that the Trespass Act powers might be excluded if other administering legislation operates as a code (although for roads it doesn't).  Given the occupation is on a reserve, there's perhaps a stronger argument that the Reserves Act operates as a code (it has specific offence and seizure provisions, and, perhaps, links to the injunction power in s 162 of the LG Act 2002).

PS I also see there's an old District Court case, Police v Stanton [1993] DCR 940, which addresses trespass notices and reserves (there managed by DoC) - but I can't locate a full text copy and the summary doesn't give much away.

by Dean Knight on November 07, 2011
Dean Knight

PPS The analysis of similar, unsuccessful, "code" argument in Bright v Police [2009] NZAR 324 (LGOIMA and the Trespass Act) implicitly suggests the focus is on the availability and effective of the remedial powers in the specific legislation.  Again, this might strengthen the argument that the Reserves Act operates as a code...

by Andrew Geddis on November 07, 2011
Andrew Geddis

Dean!

I was going to invoke your name in the main post, along the lines of speculating whether the bars and fleshpots of Soho were to blame for your silence. "I've been writing" indeed ... there's a euphamism if ever I heard one!

That "no-trespass-power-if-other-legislation-is-a-code" argument is an interesting one. I take your point on the Reserves Act issue. The DCC also is very big on the protest being in breach of their camping bylaw, which only specifies "Every person who breaches this bylaw commits an offence under section 239 of the Local Government Act 2002, and is liable on summary conviction to the penalty set out in section 242(4) of that Act (being a fine not exceeding $20,000)." But there is a power, under the Freedom Camping Act 2011, s.37, to seize camping equipment ... which only applies where the bylaw banning camping is made under its authority (see s.20) or the freedom campers are despoiling the area. The DCC's bylaw was made under the LGA, so I don't think they can claim the s.37 powers against people who are just breaching their bylaw (as opposed to people who breach it and also despoil the area). But I wonder if the fact Parliament has given local bodies the power to deal with camping issues in a specific fashion means that the general trespass power has been excluded, even if the DCC hasn't taken up those powers?

Finally, of course, there's the question of whether the enforcement powers in any other legislation (Reserves Act or Freedom Camping Act) can be used in a NZBORA consistent way against the Occupy Dunedin folks ...

by Dean Knight on November 07, 2011
Dean Knight

Haha.  I fear it is true.  I have a Friday deadline for PhD "upgrade" (assessment of first year's work, including extended outline and draft chapter)... Sigh.  I shall be hitting those bars and fleshpots on Saturday night I think and then sleeping in a gutter somewhere...

Point taken about the LG Act genelogy of the bylaw. It seems the LG Act 2002, s 146(b)(vii) bylaw power is distinct from the Reserves Act, s 106(2) bylaw power.

Regardless, the enforcement powers in the LG Act 2002 are pretty damn good for bylaws.  There's: (a) the offence provision; (b) the injunction power (s 162); and (c) generic seizure provision (s 164).  Whether that's enough to create a code or not, I'm not sure - but it's would make an interesting argument.

And, of course, you're right that the enforcement powers must be used in a NZ Bill of Rights Act consistent manner.  Boobs on Bikes is good authority in this context.  Anyways, the s 164 seizure power expressly refers to "reasonable in the circumstances".  Interesting, perhaps, the local authority is preferring the motorway of private law to the byway of public law... Telling, perhaps?

PS I refuse to consider the implications of stupid, unnecessary legislation like the Freedom Camping Act... http://www.laws179.co.nz/2011/07/freedom-from-unnecessary-legislation.html
I'm pretending it doesn't exist...

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