Protesting Proportionately: Insights from the Problematic Decision in Auckland Council v Occupiers of Aotea Square

Abstract

The Occupy movement saw courts around the world being asked to resolve challenging conflicts about the extent of our right to protest. The New Zealand contribution to this phenomenon was the problematic judgment in Auckland Council v Occupiers of Aotea Square. The judicial method of choice for resolving rights conflicts in New Zealand and much of the world is ad-hoc proportionality. In this case it was misapplied. An overbroad injunction was granted for unsatisfactory reasons. The case reveals reason to be reticent about the inferior courts allowing collateral challenges to broad and complicated bylaws based on Bill of Rights concerns. Foremost is the need for clarity in defining the subject of a Bill of Rights challenge. The case epitomises the difficulty that inferior courts can experience in applying the demonstrable justification standard in s5 of the Bill of Rights. There is need for stronger guidance about how inferior courts are to undertake the proportionality inquiry mandated by s 5. Rights-specific and practical guidance to limiting protest rights may serve us better than a generalised proportionality calculus.