It is hard to know what to make of the current protest at Parliament, which increasingly seems to be metastasising into a national problem as small support encampments spring up elsewhere. Shorn of much coherence beyond a general disenchantment with the Government’s Covid-19 restrictions and some nebulous appeals to “freedom”, it represents a Howard Beale-like barbaric yawp sounding out over the roofs of the world. After two years of having their lives turned upside down, these people want the world to know they are as mad as hell and aren’t going to take it anymore.
Of course, the root cause of all this discontent is a virus that doesn’t really care about anyone’s feelings. In fact, shouting about it literally makes its effects even worse. And what the protestors appear to be demanding—an immediate end to all Covid-19 restrictions—would demonstrably kill quite a lot of people as our health system became overwhelmed. To say nothing of the presence in the protesters’ midst of some individuals espousing ugly political views using quite vile rhetoric. It’s really not enough for the protestors to in effect say “we are large and we contain multitudes, but most of us don’t really agree with that sort of thing” while their protest encampment provides a safe space for the Nazi-adjacent to exist and potentially expand. Lie down with dogs and get fleas, and all that.
Which brings us to the question of how to deal with the inconvenience at least, and outright sabotage of daily life at worst, caused by the protest. Yes, as an open and democratic society we must let even the perceived unreasonable and wrongheaded vent their views. And some of the points raised by those protesting are entirely reasonable to raise, even if the time probably isn’t quite ripe for an answer. How long should vaccine mandates stay in place, once we achieve widespread boosted vaccination? When will we be ready to follow Denmark and effectively remove the State from the Covid-19 response game? As omicron burns through the population over the next few months, these questions are going to become increasingly pressing for us collectively.
Equally, however, a self-righteous belief in the importance of a cause and felt-need to commune with others expressing something like the same ideas can never be a licence to do what you want. Does the fact the Covid-19 mandates closed down your business permit you to shutter other businesses in Parliament’s vicinity? Does the fact you feel excluded from society justify monopolising an extensive portion of the public space surrounding Parliament for an extended period of time? Does the fact that you think you aren’t being listened to give you the right to prevent others from petitioning Parliament? And, perhaps most importantly, even if you number in the thousands, why should your particular demands dictate how those elected by a collective nation of millions must choose to respond to Covid-19?
As such, the fact that the protest may reflect some genuine grievances and understandable hurt regarding the impact of responding to Covid-19 can’t by and of itself legitimate the particular form of action taken in Wellington. The choice of a particular form of protest action instead must be assessed against the impact that it has on the interests and rights of others in the parliamentary environs. And the way that our law achieves this is by asking whether bringing an end to a particular form of protest action would represent a “demonstrably justified” limit on the rights and freedoms of those engaged in it.
The issue of the cars and vans blocking downtown Wellington streets is relatively straightforward, from a legal perspective at least. They are unlawfully parked under the Summary Offences Act and Wellington City Council by-laws. The Police possess the power under the Land Transport Act to order the removal of the vehicles if drivers will not shift them willingly. Any asserted right to keep them where they are as part of wider protest activity is pretty weak; there’s minimal extra expressive value added to your protest by simply putting your car where it stops others from using the road. That’s the case even if it has a sign written on it urging others to, and I quote, “stop Jewcinda”. In contrast, the justifications for limiting those weak rights-claims are strong; the length of time the protest has gone on for and its impact on other road users is severe.
The real problem, of course, lies in the gap between law’s thought and its expression. We saw the difficulty involved in trying to shift several hundred people unwilling to move when the Police tried to clear Parliament’s lawn last Thursday. Now magnify that difficulty by having to operate relatively heavy machinery while people try and stop you from doing so. If the Police can even find tow-truck operators willing to undertake the work under such conditions, given that they lack the capacity to undertake it themselves.
However, if it can ever be practically achieved, clearing the streets of cars and vans would address one major impact of the current protest activity. And it might help to enervate the protest on Parliament grounds by removing some of the effective infrastructure helping it to carry on. But the campsite and its associated festival atmosphere undoubtedly will last for at least a period beyond. What, then, is the legal status of that particular form of protest?
There have been some suggestions in media reports that the Police may have received advice that it is lawful. I think this seems unlikely, for a couple of reasons. First of all, the judicial constraints on the Speaker’s ability to issue trespass orders to those protesting on Parliament’s grounds seem to me to be met. These would need to be reissued before any action was taken to clear the protest camp, but that could be done relatively easily. Second, the Police already have arrested over 100 people for their involvement in the protest on Parliament’s lawn. At least some of these individuals have been charged with wilful trespass. If the Police are arresting and charging people for an offence that they have been advised has no legal basis, then there’s real trouble brewing down the track.
So, once again, the question is less what does the law allow and more how can the law be actually enforced? We’ve seen that smirk-inducing tactics from the House’s Speaker like soaking the ground and playing twitter-footsie with James Blunt not only don’t work, but likely even made things worse. Arresting hundreds of non-complying people not only is physically exhausting for the officers involved, but may just bring more people to the scene. Donning riot gear and deploying tear-gas would feed into every paranoid conspiracy held by the protestors, and potentially create a whole bunch more who believe in them.
Which means that if—and this purely is an if—all we want is to bring this particular protest to an expeditious end, the answer must be to give those involved the recognition they crave and negotiate some sort of compromise. Of course, the nation’s Covid-19 restrictions will not be lifted. But some senior political figures will have to allow themselves to be lectured at by some cross-section of those involved in the protest, with a vague promise of removing mandates “as soon as possible” resulting. Then the protestors can declare a face-saving victory and depart in triumph. Which would allow Parliament’s lawn to receive the TLC it so desperately needs.
However, is bringing this particular protest to an expeditious end really all we want to do? What message would be sent, to use a hackneyed cliché, if the result of being determined enough to shut down the parliamentary environment for a couple of weeks is an audience with Cabinet Ministers and validation of your complaints? Especially when, and this must be remembered, a non-negligible proportion of the crowd outside Parliament has been calling for things like show trials and executions. Do we allow protest activity that deploys such rhetoric to achieve any goals at all? Because, what happens when the next such group of self-righteous believers in the importance of a cause with a felt-need to commune with others expressing something like the same ideas shows up?
These are not purely hypothetical questions. We’re living in an era of increasing social dislocation, where it appears that even the concept of a shared reality can no longer be assumed. How, then, do we respond when some small-but-fervent group says that they will bring a halt to normal life until their version of how things are gets accepted? Do we accommodate such claims as we might a swivel-eyed relative at Christmas dinner by nodding along with their off-beam demands, all in the name of a quiet life? Or, do we wait them out; “hold the line”, as those outside Parliament buildings would say? And if so, who do we ask to bear the cost of that collective commitment?
I’m really not sure I have good answers to any of this. But the choices that get made over the next few days in Wellington may be very important in determining what our future collective discourse and practice looks like.