In a major report released today, the Independent Police Conduct Authority has called for new standalone legislation directed at protecting the rights of protestors while, at the same time, ensuring public order and safety.

The report arises from a review that has been undertaken over the last couple of years, subsequent to the receipt of 168 complaints concerning a rally in support of Kelly Minshull (also known as Posie Parker) in Auckland’s Albert Park in March 2023. The review has also been informed by several complaints arising from Police handling of protest activity relating primarily to the situation in Israel and Gaza.

In contrast with most other jurisdictions with which we commonly compare ourselves (Australian states, the United Kingdom and Ireland), New Zealand legislation provides no effective process for determining in advance what restrictions there should be on freedoms of assembly, movement and expression. While most local authorities have bylaws that require advance notification of a protest in a public place, these are rarely enforced, and their broad scope often renders them inconsistent with the Bill of Rights Act or otherwise invalid.

“The current legal framework is therefore inadequate and not fit for purpose”, said Judge Kenneth Johnston KC, the Chair of the Authority.

“It leaves frontline Police officers and their supervisors to determine what constitutes reasonable restrictions on protestors’ rights, with only general and high-level guidance in statute and case law. This creates a large measure of uncertainty as to the limits of lawful protest, and substantial inconsistency in Police practice.”

Our report makes a number of recommendations to Police that would, if implemented, provide more effective facilitation and regulation of public assemblies. Some of these relate to improvements in training and the development of more detailed guidance as to the way in which officers should balance risks to public order and safety against their role in facilitating the exercise of democratic rights by protestors and others.

However, the Authority’s view is that such internal changes would be insufficient to address the problem. It is therefore recommending that Police propose to Government the introduction of new standalone legislation, which contains both a set of over-arching principles relating to an actual or anticipated protest (or other assembly) that might justify limitations on fundamental rights such as the freedoms of expression, assembly and movement, and specific powers in relation to how such events may be managed and controlled.

That new legislation should, among other things:

• create a new regulatory regime for advance notification by organisers of designated types of assemblies (including protests);
• allow senior Police officers, in consultation with local authorities (and, in relation to a state highway, NZ Transport Agency Waka Kotahi), to set conditions in advance as to the way in which a protest must be conducted with which participants must comply;
• specify that either (a) notification and the conducting of a protest substantially in accordance with the terms of the notification would protect participants from criminal and civil liability; or (b) a failure to notify would constitute a criminal offence;
• govern when a traffic management plan is required, and specify who should be responsible for it;
• contain a new, fit-for-purpose offence provision which would replace certain current criminal offences in the public assembly area; and
• create a specific offence relating to the picketing of private residences.

“The Authority’s proposals are not intended to impose greater general constraints on the right to protest”, said Judge Johnston. “This right is fundamental to a democracy and protected by the Bill of Rights Act.”

“Our proposals are designed to provide greater protection for protestors by creating a process for decisions to be made in advance about how to preserve and facilitate the rights of freedom of assembly, movement and expression on the one hand and provide reasonable constraints for the protection of public safety and order on the other.

While the complaints we have received illustrate the importance of this today, the need is only going to increase as the public protest environment, aided by social media, continues to evolve. Without such a legislative regime, the preservation of fundamental rights is likely to come under increasing threat.”

The Authority has also investigated the individual complaints that led to this review, and our findings in relation to those complaints are contained in the appendices to the report. We have made findings that some Police actions were unlawful and unduly constrained the right to protest, but ascribe many of what might otherwise be regarded as Police failings to the uncertainty of the current law.

The review that forms the basis for this report was undertaken in collaboration with Police. We also consulted with the Ministry of Justice and the Department of Internal Affairs and others. These ranged from frontline Police officers with expertise in public order policing, to academic and policing experts in both New Zealand and comparable jurisdictions including the United Kingdom, Ireland and some Australian states.

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