The IPCA’s call for new legislation to govern how police handle protest could have an unwelcome and serious impact on a fundamental right, argues Trevor Richards, an early leader of the anti-apartheid movement in Aotearoa.

Come with me on a journey back to my childhood. The decade of the 1960s is just beginning. New Zealand is a country of rugby, racing and beer, of short back and sides, and, according to most Pākehā, excellent race relations. Māori opinion is not sought. The New Zealand Rugby Football Union has no problem telling Māori that only whites will be selected for any All Black team to tour South Africa. Women are unable to terminate unwanted pregnancies: hundreds die from botched “back street” abortions. Male homosexuality is a crime.

Today, many aspects of that past present themselves as a bad dream. We are no longer a nation of “rugby, racing and beer”. Our sporting interests and the beverages we consume are now much more diverse. So too are our hair styles. More importantly, attitudes to race have changed: assimilation is dead; Māori are now properly recognised as tangata whenua. Te Tiriti o Waitangi and te reo are both becoming increasingly important features of New Zealand’s evolving society. After more than 60 years, we finally got around to ending our racist sporting links with apartheid South Africa. Gay rights became enshrined in law. Abortion became a woman’s right to choose. New Zealand became proudly nuclear free.

These changes didn’t “just happen”. They were not the outcome of a benign and enlightened period in our politics. Change did not come about easily. For long periods it was actively opposed and resisted by those holding political power. In the post-World War II period, for around 40 years, conservative, often racist, misogynistic viewpoints had prevailed. Regrettably, there remains too much of both still around today.

Change only came about because New Zealanders demanded it. We protested on the streets and outside parliament. In Christchurch, The Press reported that in the four years from 1967 to 1970, there had been 339 demonstrations. The political landscape was “crowded with causes”. We wrote letters, signed petitions, held vigils, picketed politicians and others resistant to change. We held meetings – many thousands of them. Uncomfortable chairs in draughty halls for many became a way of life.

Mostly, these protests were law abiding and polite. Sometimes, when authorities proved to be totally resistant to change, we sought to unblock the system by taking actions we knew to be illegal. Those who took such actions did so knowing that arrest was the likely outcome. In 1981, when 30 or so of us broke through the rusted perimeter fence at the southern end of Wellington airport and marched on to the tarmac to protest against Air New Zealand flying the Springboks around the country, we knew that before we returned home that night, it was inevitable that there would be an enforced diversion to an inner-city police station where criminal charges would likely follow.

The role played by protest in changing the New Zealand of my childhood to the society it is today was substantial. Without an unfettered right to protest, charting the road forward to a fairer, more equitable society assumes aspects of a pipe dream. Protest is an essential component of a healthy society. Any attempt to diminish such rights is detrimental to the health of society itself. Any proposal to change the rules relating to protest needs to be closely examined. 

Such a set of proposals has come from the Independent Police Conduct Authority (IPCA), an independent civilian body that considers complaints against the New Zealand Police and oversees their conduct. In mid February it released “The Policing of Public Protest in New Zealand”, a major report that calls for new standalone legislation to govern how police handle protest. 

It is a little odd that the impetus for a major change to the laws governing protest should come from a body whose main role is to investigate complaints against the police. The initial reason for the IPCA straying into this area would seem to be complaints against the police. In 2022 there were more than 1,900 complaints against the police following the 2022 three-week-long occupation of parliament by anti-government protesters. In 2023, a rally and counter-protest around transgender rights in Auckland’s Albert Park resulted in 168 complaints being made against police.

In attempting to establish a set of rules to help guide police in fraught situations involving protest, the IPCA has come up with a detailed set of proposals which, although not the authority’s intention, if enacted into law would have an unwelcome and serious impact on New Zealanders’ basic right to protest. 

The statement with which the IPCA introduces its recommendations is highly disturbing. “We recommend 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 freedoms of expression, assembly and movement, and specific powers in relation to how such events may be managed and controlled.”

There is something singularly ominous about a proposal seeking to justify a curtailment of such rights and freedoms. The report recommends that the legislation include:

• 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;
• create a specific offence relating to the picketing of private residences.

The IPCA proposes that protesters must notify authorities before protesting or, in some cases, risk being charged with a criminal offence. This is very heavy-handed. It sounds like an idea that could have been formulated in the 1950s.  Unsurprisingly, the New Zealand Council for Civil Liberties (NZCCL) finds such a proposal “so disturbing”. 

The council describes a licensing system for protesting as being “the first step for exerting further control over political protest”. I agree. “With the power to license comes the power to refuse licences or to impose rules that hide protest from public view,” reads the NZCCL statement. “It’s weakening a key element in New Zealand’s democracy.”

Such regulations could become the not too thin edge of a wedge that leads to a substantial erosion of fundamental democratic rights. Once established, a set of principles that justifies limitations on fundamental rights such as freedom of expression, assembly and movement can be amended to tighten and limit such rights.

The NZCCL believes, however, that advance notice of demonstrations can be beneficial. I would agree with this. All of the large, set-piece mass demonstrations that I was involved in organising were subject to prior consultation with the police. I suspect that this remains the case today. Imposing regulations requiring such notification to be compulsory, however, is a step too far.

It should also be noted that a significant number of political protests happen in response to rapidly unfolding events. The IPCA is aware of this. In its report it recognises that many protests are spontaneous, and that in many of these instances prior approval is not a practical option. Good for them. But once such rules are in place, it would be relatively straightforward for a future, more authoritarian government to make the rules more restrictive. Don’t think it can’t happen here. 

How might protests in which I was involved have played out if this proposed legislation had been in place? The answer depends on how benign the government of the day was – and in the second half of the 1970s and in 1981, benign is not a word that springs to mind to describe that government. In 1976, following the African walkout from the Montreal Olympics, Halt All Racist Tours (HART) was accused of “acts bordering on treason”. Think of how a government capable of making such an accusation (in 1976 the penalty in New Zealand for treason was death) might have wanted to change protest rules. 

Of particular concern is the proposal to create a specific offence relating to the picketing of private residences. Police minister Mark Mitchell has already expressed initial support for the proposal. He described such protests as “a step too far” and said the government was “very willing to explore recommendations to create a new offence to address it”.

These types of pickets are both time-honoured and legitimate. New Zealand government ministers responsible for contentious policy decisions have often been the subject of such pickets. So too have the representatives of controversial foreign governments. Long may this continue to be the case.

In the 1970s, I regularly participated in pickets outside the residence of the South African consul general. The principal purpose of these pickets – “a night at the racists’”, as they were affectionately called – was to oppose the presence of apartheid’s official propagandists in the country. The major focus of these protests were cocktail parties, often held on South Africa’s national day, and attended by politicians and sports administrators. The protests were enjoyed, not only by those protesting, but also by many of the invited guests as well. 

The banter between the two was studded with lively repartee. After each of these protests we enjoyed selecting what became known as “the best quip of the night”. One year it went to a life member of the Marist St Pats Rugby Football Club. “I’m just here for the grog, old cock. That’s all I’m here for,” he had shouted out to me as he walked past. Some years previously we had both been after-dinner speakers at a Scots College old boys’ dinner.

On another occasion, I recall Tim Shadbolt, then deputy leader of the Aotearoa Legalise Cannabis Party, announcing a “pot party” outside the home of National Party health minister Frank Gill. The police made appropriate preparations, only to be confronted by Shadbolt and a group of supporters wielding pots from their kitchens. A common aim of protest is to raise issues for discussion. Grabbing the attention of the media is often difficult. This particular protest successfully garnered much media attention. The IPCA proposal would make such a protest illegal.

The fate of the IPCA’s proposals have yet to be determined. Mitchell, responding to the report’s findings, said he and his ministerial colleagues would assess whether any existing legislation could satisfy the authority’s recommendations. “If there isn’t, then of course we’re very open to it.” The government’s response needs to be carefully monitored.

Resistance is not always triumphant. The pace of change can be glacial. Campaigns to improve and change aspects of the society in which we live are often protracted. Without a clear and unfettered right to protest, think how much more difficult effecting change would become.