Know Your Rights, These Are Your Rights

— Kim

New Zealand law promises us certain rights. This article uses freedom of expression to show how the state balances the impression of these rights under law, against maintaining its power by ensuring the rights are not real. The vagueness of the law means it is open to interpretation. The police are a conservative institution that exists to enforce existing authority, if there is doubt in their instructions, we can expect them to have a conservative, authoritarian bias. This happens at two main stages: where police bosses interpret law into guidelines for those enforcing it, and where those officers interpret those guidelines into actions. The courts are unpredictable, with outcomes depending on individual biases of judges.

If you read the PR, you probably have a fair idea of what the New Zealand Police want you to believe they stand for — protecting the public. You might sometimes spot an inconsistency in their message that sounds troubling. "We are the coercive arm of the state" (Police Association President Greg O'Connor, June 2005), for example, does not sound quite as warm and friendly as "building safer communities together" or "keeping the peace."

The last few years have seen some terrifying examples of police culture, even people who have little need to fear them have felt driven to sigh in disapproval, and mutter that it might be time for an independent agency to investigate complaints. The Bazley Report (which responded to publicity showing police culture abusive to women and contributing to rape and sexual abuse) was scathing of police culture. Ross Meurant (ex-Minister of Police and head of police anti-protest unit Red Squad) criticised the culture of groups like the SIS and his Red Squad. SIS and other police were embarrassed by court rulings on Ahmed Zaoui, adding to past humiliation by Aziz Choudry and David Small. Howard Broad described Operation 8, now being investigated by the UN for breaches of Human Rights, as a dog's breakfast.

For whatever reason, the media have not been inspired by this, and the New Zealand public seems unwilling to think or act without the direction of media. Although we now have an Independent Police Conduct Authority (dependent on the state for funding at a level that makes it effectively dependent on police for investigating complaints), these examples of a morally worrying and politically backward police force have not lead to restrictions of their powers. In fact, police powers have actually been extended in an area where they have proven themselves particularly over-zealous — policing dissent and protests.

What the law says

Section 14 of New Zealand's Bill of Rights Act states "Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form." Section 6 of the Bill of Rights Act states that the Summary Offences Act (which includes disorderly and offensive behaviour, obstruction, and the like) must be used consistently with freedom of expression. Police can only limit political expression when necessary for the rights or reputations of others, or for reasons of national security or public order, public health, or morals.

What Police guidelines say

Police guidelines for demonstrations say they "must balance the need to maintain order against the rights of citizens...freedom of speech, peaceful demonstration, security of life and property, and freedom from intimidation or interference. Preservation of the peace is paramount. Subject to that, police should as far as possible allow individuals and groups to exercise their rights." Police are required to "exercise tact, tolerance and restraint; remain impartial; and use their powers reasonably and properly" (Police General Instructions, D031 — Basic principles). I would like to examine these guidelines, and the way I see them used.

"Preservation of peace is paramount"

The Bill of Rights says pretty clearly that freedom of expression is more important than keeping the peace. Activists using demonstrations as a "form" of "imparting information and opinions" should be allowed more leeway than usual, within the limits set out in the Act. However, those limits are vague, and police have taken the most authoritarian interpretation possible. In November 2007, Police were given instructions to remove demonstrators where their behaviour is disorderly or personally offensive or humiliating to their target. Wellington Operational Commander, Inspector Steinhouse, has even instructed police to "make every effort to minimise the impact of protest." In practice, this means arresting protestors whenever circumstances allow and restricting behaviour as far as possible, ignoring the promises of the Bill of Rights.

"Exercise tact, tolerance and restraint"

At a 2007 Wellington anti-war protest, a man was arrested for using chalk on the outside wall of a building, only to be released when police realised media were recording the arrest. At a 2007 Auckland anti-fur protest, one person was arrested and charged with Disorderly Behaviour for using a megaphone. In 2006, police arrested two picketers on the footpath outside a Progressive store, who were found guilty of Obstructing a Public Way. At ANZAC day 2007, a man and woman were arrested for blowing a trumpet and lighting a flag respectively. Although they argued their actions were a form of political expression, protesting the current occupations of ANZAC troops around the world, the man was found guilty of Obstruction and Resisting Arrest, and the woman of Offensive Behaviour. Compare this to the 15 men, alleged to have thrown bottles at police in Dunedin after the "Undie 500," charged with Obstruction and Disorderly Conduct. Apparently police see a single man trying to hold onto his trumpet in an antiwar protest as similar to a group of men attacking them while pissed.

A common complaint from demonstrators after large actions is that non-violent protest was met with violence from police. Police are more tactful in the way they employ violence against demonstrators than in the past. The methods they mostly use now don't make for the dramatic photos of swinging nightsticks from the 80s and 90s. Police may use "mastoid thumb pressure" against "non violent offenders who refuse to move" or "passive offenders" (Police General Instructions A264). The photo opportunities are not great, but the pain is no less real. At a 2005 anti-GE protest in Rotorua, police arrested three non-violent demonstrators, using pepper spray on one; a judge stated that police procedures "appear to have been more observed in their breach than their compliance." The use of pepper spray in this case has resulted in a lawsuit against police. After the 2006 demonstration that closed Te Papa for part of a day while a weapons conference was held inside, several women complained of police reaching across the barricades and squeezing their breasts to the extent of bruising, presumably in order to push the women back; this technique was used again at a demonstration against the US NZ partnership forum in Auckland 2007. It seems a reasonable assumption that having been used during at least two demonstrations and on several women by several officers, this is a condoned, if not official, method of crowd control.

These examples are representative of decisions police make during demonstrations. Tact, restraint and tolerance must be interpreted in strange ways by police. Two recent exceptions suggest what it takes for them to approach even their low and fuzzy guidelines. At the 2007 Wellington demonstration against police rape culture, police were largely unseen. Again in 2007 when the Tuhoe hikoi against police racism and the invasion of Tuhoe arrived in Wellington, police were uncharacteristically low key. These two demonstrations attracted wide media interest, activists from a range of backgrounds, and were protesting obvious examples of police corruption. It appears that only when there is mainstream media presence and the demonstration includes well-dressed, older activists, can we expect restraint and tact from police.

"Remain impartial"

At a demonstration outside the Labour Party Conference in December 2007, police did nothing while a Labour Party member assaulted a protester with a megaphone, police then arrested a protester for "spitting" while performing a haka. TV3 had clear footage of both incidents: a man struck in the face with a megaphone, and a fleck of spit leaving a man's mouth as he chanted; it is obvious that police were not impartial. During a 2007 anti-war demonstration directed against John Howard, a single demonstrator asking three police why he wasn't allowed past them was pushed several times, then thrown to the ground. Moments later a man drove his car down the street police had closed, and attempted to drive through standing and seated demonstrators with their backs to him; no police tried to stop him, they intervened to clear a way through for him. From my experience of witnessing police at demonstrations, I believe this is representative of the position police take against protesters. John Minto talks of a "long-standing, deep-seated, simmering resentment of protest groups by the police." They appear antagonistic towards activists, and allow assault on activists by other people. Police are trained in a culture that is unable to be impartial.

Police use their power to punish people unlikely to be punished in court. Being arrested is often violent, and always stressful and time-consuming, whether or not police lay charges. I am unaware of anyone being compensated for time and stress as a result of unreasonable arrest. One case in 2006, where people dressed as clowns were arrested, held in cells for 10 hours, and charged with intimidation and unlawfully on property after visiting a suburban street, proceeded for more than a year. Those arrested were bailed at large, but were expected to appear at court regularly while police debated changing charges, dropping charges, and setting new dates for future hearings. After nearly 18 months of uncertainty, and many hours of lawyers time, all charges were dropped.

What about the courts

Activists can hope that courts will lean more towards freedom of expression than police do. Judges have often been critical of police for heavy-handedness with demonstrators. Several activists have successfully complained about police behaviour and received compensation for injuries that resulted. However, sympathy from courts is unreliable, as the convictions in this article illustrate. In 2006 when two men barricaded themselves to train tracks (warning the rail company ahead of time) and stopped a cargo train in protest of West Coast coal mining, were they unreasonably threatening the rights or reputations of others, national security or public order, public health, or morals? A court said they were. What about the men on the picket line, or the people at the ANZAC protest — they may have offended people, but did they actually threaten their rights?

Do we have the right to protest? Who do we accept our rights from?

If police must remove demonstrators for disorderly or personally offensive behaviour, and judges are convicting demonstrators of summary offences without regard to freedom of expression, then how are we to protest legally? When you add this to the insane amount of state surveillance of activist groups, and the recent attempt by police to use anti-terror legislation against activists, it is obvious that the state does not consider that we have a right to any dissent.

Remember most protests are predictable and easily managed. The state has seen so many marches and demonstrations, it knows what little threat they are: they are symbolic gestures. And still police often reply to our actions with very real violence. And we become distracted by our rage at the police, as if we are surprised by their response. So we engage with them, complaining about their tactics, sounding exactly like the liberals we so often criticise. We protest against them, unsure of what it is that we are trying to achieve — except making us feel a bit better. We try to stare them down, we argue with them, we talk about fighting them, as if by overpowering a police officer we will win a real victory. As if the hand-full of people who agree with these tactics are enough to take on the state by force.

So what to do?

We reject the authority of the state and the police, therefore we can't complain when they don't respect our civil rights. Instead of whining when police do what they're paid to do, we should take the opportunity to expose the state for what it is. To show others that our "civil rights" only exist as long as we aren't stupid enough to try to use them.

We need to be strategic. We can expect to be arrested seemingly at random, regardless of how lawful or harmless our actions are. We need to make sure our actions are never harmless, they should always be meaningful and well directed. We need to be prepared for those arrests; this can mean lots of things, including making successful arrests less likely, making convictions less likely, and making convictions less painful.

We have some choices to make.

The unpredictable possibility of arrest and conviction for actions that are not obviously illegal allows us complete freedom to ignore the law. If we're going to be convicted of ridiculous charges anyway, then there is no reason to show any regard to the law. We can do exactly what we want and face the consequences.

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