Why It Should Be Considered to Reform the Law to Provide Better Protection for Protesters against the Application of the Trespass Act 1980 in Some Places

Abstract

Freedom of expression is a major part of the “market place of ideas”1 and the toleration of protests is a “hallmark of free and democratic societies”.2 Enabling individuals to express their opinion in public is essential for expressing criticism, taking part in political decision-making outside of the actual voting process,3 in short: essential for democracy. New Zealand doubtlessly recognises the importance of the right to freedom of expression and is devoted to protect it. Nevertheless, there are laws4 and judicial decisions that impose restrictions on protesters’ rights. In some areas there have not any relevant cases involving trespass been decided, yet. Questions arise especially in the context of trespass in privately owned quasi-public places such as supermarkets, shopping malls or airport terminals. It is not clear how the courts in New Zealand would decide about protests in these places. Therefore, it should be considered to reform the law, in the sense of clarifying the protesters’ and occupier’s rights. If, and why, this is necessary for all venues, or just certain places, will be discussed. Further, this paper will give an overview of the relevant provisions of the New Zealand Bill of Rights Act 1990 (BORA) and the most interesting legal cases in the context of protests. Additionally, it will be briefly discussed how the nature of a protest venue affects the demonstrable justifiability of trespass warnings, and how the rights to, and problems arising from, protests in public are actually governed.