Thursday, December 29, 2011

The right to protest: Boring legal diatribe to follow

I'm actually bloody frustrated by Head Occupier, Chris Glen, and his claim that all they are doing is standing  up for their "rights" of freedom of expression and peaceful assembly (forgetting for a moment that a freedom is not a right).  Like most on the socialist left, he speaks of rights as paramount; they trump everything else.  Especially his rights.

It is completely specious and utterly wrong to talk of his "rights" like this, in the context of the New Zealand Bill of Rights Act.  Not that he gives a monkey, but in case some want to know how the NZBORA operates, here's a simple, quick lesson.

In assessing whether something is contrary to the Bill of Rights there is a two stage process.  The first is to determine whether the act by the police (of removing the protestors from Aotea Square) is contrary to their freedom of expression and their right to peaceful assembly; and then the second is to consider whether this breach of their freedom and "rights" is nonetheless sanctioned by section 5 of the Bill of Rights Act.

Let's presume it is contrary.  Because by the act of removal, they cannot "protest" any longer. 

Section 5 of the NZBORA then comes into play.  It says:
Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
So Glen's "rights" and "freedoms" are limited, not exhaustive, but only if the act of removal can be demonstrably justified in a free and democratic society.

Only if this question is answered "no", (i.e. cannot be demonstrably justified) is the act of removing them invalidated, and their rights and freedoms breached.  

Section 5 is subject to section 4. Section 4 is a savings provision.  It basically says no law is revoked, repealed or invalidated simply because it's inconsistent with the Bill of Rights.  So all laws in place for the police to enable removal of the protestors survive.  That's pretty much the Joker to Glen's right bower.

But one still needs to go on and ask this question: Is it demonstrably justifiable in a free and democratic society for the police to enforce a court order removing vagabonds from a public space that they have ruined and have used to the exclusion of other citizens for about 90 days, even if said vagabonds are exercising their "rights and freedoms"?

If you think the answer to that is "yes", then the vagabonds go.  If you think "no", then they stay.  But regardless, it is not as simple as just saying "our rights have been breached, how can this happen"!

The law allows it to happen.  Now just go and be done with.  Please.

2 comments:

Adolf Fiinkensein said...

Ahaaaah!

So maybe it is the judge who is the ass rather than the law?

Or maybe Len Brown's dumbarse lawyers who failed to argue an open and shut case?

Tinman said...

What I can't figure out is why you upset fellows don't assert your right to protest by physically removing these scumbags from your public areas?

If they have the right to commit trespass and vandalism, not to mention breaking the new no-camping laws, in the name of protest surely you have the same rights to kick the bastards out - in the name of legitimate protest.