Explainer: Trespass Notices at Parliament

May 5, 2022

Summary

Just like any other public place, you can be trespassed from Parliament. But unlike any other public place, the decision to do so, by the Speaker is open to review and must take in to account rights under the NZ Bill of Rights.

Background

During the protests on Parliament’s lawn in March and April 2022, hundreds of people were trespassed from the grounds. Many of them returned during the protest. However, since then and more than 2 months since the protest ended, people have received trespass notice banning them from Parliament grounds for the next two years. The most high profile people to receive such notices were former Deputy Prime Minister and former Member for Northland, Matt King.

The notices themselves do not provide any reasons for the notice except they are made in accordance with sections 4(1) or 4(2) or 4(4) of the Trespass Act 1980.

Key Provisions

The Trespass Act 1980 applies to Parliament Grounds.

Section 4 of the Trespass Act 1980 allows for a trespass notice to be issued when a person has been warned to stay off the site. The occupier (for Parliament this is the Speaker) may do so if –

- Subsection (1) where the purpose has trespassed on the place, the person may within a reasonable time, warn them off that place

- Subsection (2) they have reasonable cause to suspect the person is likely to trespass on that place.

Subsection (4) states it is an offence against the Act, if that person, then wilfully trespasses within two years.

The New Zealand Bill of Rights Act 1990 states that everyone has the right to freedom of expression (section 14) and freedom of peaceful assembly (section 16). But they may be subject to reasonable limits as demonstrably justified in a free and democratic society.

Application to Parliamentary Protest

There are a number of technical requirements that must be satisfied when a trespass notice is issued, such as the manner the warning was given and the information provided in the notice.

As the occupier of Parliament is the Speaker, their decision is a public function and therefore subject to judicial review. This action looks at the process of the decision being made and would take in to what factors were taken in to account when making the decision (and which were not),the time frame for making the decision, whether there was any bias or improper purpose in making the decision and whether it was arbitrary.

In 1997, 300 students protested at Parliament. They were trespassed and arrested. The case went all the way through to the Court of Appeal, and it was upheld that while a trespass notice could be issued it was subject to the NZ Bill of Rights.

The decision to trespass can only be reasonable if it is a justifiable limit on the rights of freedom of assembly or expression. The questions the court asked to determine whether it was justified in regard to the student protest was whether the individuals behaved in a disorderly manner, breached or threatened to breach the peace or unreasonably infringe on the rights of others.

The law, to date, has not specifically considered whether a particular individual’s former role (as as being a MP) would affect this decision. Mr King, as a former MP, has stated publically, that he intends to run for election in 2023and if elected, would therefore be required to attend Parliament within the two year trespass notice period. It would be difficult to argue at that point that such a limitation could be justified.

Franks Ogilvie Director Stephen Franks, a former MP, was also told verbally he may receive a trespass order for speaking with people at the protest but did not receive.

 

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