Legal Beagle by Graeme Edgeler


Begging for trouble

In September of 1997 a student protest held in the grounds of Parliament led to the arrests of 75 people for trespass. Twelve years on, 41 of those students (who sued the Speaker and the Police) will receive apologies and cash settlements of between $2500 and $5000.

But this settlement, whilst important – apologies for official misuse of power aren't common and are exceedingly rare alongside cash settlements – is more of an endnote. The important constitutional consequence of the arrests arises from the criminal prosecution that followed (over much more quickly). It did get to the Court of Appeal, but the student protesters won from the District Court up. They may have met all the requirements of the offence of trespass (been somewhere, been warned to leave twice by (a delegate of) the occupier, refused to do so, etc.) but, basically, they got the warning to leave thrown out.

An occupier has the right to ask people to leave land they control, but the courts decided that because Parliament grounds were a public place, and the exercise of control over them was the exercise of public power, the Speaker in making the decision to ask the protesters to leave had to consider the Bill of Rights. And in requiring them to leave, he infringed on their rights of freedom of speech and protest and assembly more than was permissible in the circumstances. The warning to leave was invalid, and without a warning to leave there is no criminal trespass.

The Beggs case (named after the Salient journalist among those charged) establishes the general proposition that not only must rules themselves be consistent with our fundamental freedoms, the use of general powers by people or bodies exercising public power must be consistent each time they are exercised. The power of the Speaker to exclude people from Parliament grounds, with the consequence that those who ignore the warning to leave can be arrested and charged, has been exercised lawfully on many occasions, but when that power was used to stifle political speech and peaceful assembly in 1997 it went too far. The power still exists; it's still found in the same place in the same place in the Trespass Act; but its exercise in now circumscribed elsewhere for those exercising public power.

When you think about it, it's not all that surprising. We passed a Bill of Rights Act to constrain government excess and, while there is an express exception for legislative excess, the general idea is that Parliament passed a law, and those to whom the applies (those exercising public powers) must follow it. And they follow it by ensuring that in the exercise of their powers they don't infringe our rights more than is demonstrably justified in a free and democratic society.

This rule doesn't only apply to the exercise of the rights of an occupier of land under the Trespass Act, but the exercise of any right. We are talking rights that you or I could exercise without a second thought: the right to ask someone to leave our property; and, I'd suggest, the right to send takedown notices. My legal practice isn't in intellectual property, but that there isn't a parody or satire exception in our copyright act is reasonably well known. However, when we're talking about enforcement of intellectual property rights by those exercising public powers, I'd argue the affirmation of the right to freedom of expression in section 14 of the New Zealand Bill of Rights Act is all we need. I don't believe it's been tested in New Zealand, but I think one could make a pretty strong argument that it could be an unreasonable limitation on the right to freedom of expression if a government agency were to use a copyright or trademark to quell political speech.

The Government has a right to protect its intellectual property, just as the Speaker had a right to warn those student protesters to leave. But neither can ignore the fact that Parliament passed a bill of rights. Their exercise of powers in enforcing these rights is subject to a legislative requirement that their actions not limit the rights of more than is justifiable in a free and democratic society. Limiting student protesters to the grass area behind metal barriers and away from the direct forecourt at Parliament is a probably reasonable limit, asking that there be an explicit disclaimer on a parody website is probably a reasonable limit. But when someone goes further than that – and it seems likely someone will – it may come back to bite them. Even if it takes 12 years.

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