Some quick legal advice for Dave Cull

Dunedin's police will not be moving to evict the Occupy Dunedin protest. Good on Dunedin's police.

I don't often get things right. I thought the All Blacks would put 20 points or more on the French in the Rugby World Cup 2011 (TM) final. I predicted Alpha Plan would be the next U2 - and if you don't know who I mean, you weren't there, man. Then there was this spectacularly ill-concieved and poorly executed Pundit post.

But even a stopped clock gives the right time twice a day. As was the case here, where I said that the Dunedin police would think long and hard before acting to enforce the Dunedin City Council's (DCC) trespass notices against the Occupy Dunedin protest. My point in that post was that the DCC simply hadn't demonstrated it was "reasonable" for it to exercise this power, given that the notices limit the protester's rights under the NZ Bill of Rights Act ... meaning that the notices likely would be of no legal effect and so enforcing them and evicting the protesters would be an unlawful action.

Turns out the Dunedin police think likewise.

Dunedin-Clutha area commander Inspector Greg Sparrow issued a brief statement late yesterday, confirming police would not act on the trespass notices issued to the protesters by council staff last week.

Police had been considering their legal position for the past week, but Insp Sparrow yesterday concluded the trespass notices did not meet "the test of balancing the rights and freedoms of all parties"

Police were yet to see any action by the protesters "that would justify police intervention", but would continue to monitor the situation, he said.

This conclusion has not gone down very well with the DCC.

[T]he decision has left [Dunedin's Mayor] David Cull vowing to consider other legal options today.

He told the Otago Daily Times he was "disappointed" at the time police had taken to reach their conclusion, and by their decision not to enforce "legitimate" council bylaws.

"We are completely at a loss to know where the lack of enforceability might begin or end.

"It makes one wonder just what the police will enforce in our community and what they won't. Is it up to them to decide what the law is, or can we rely on our laws and bylaws?

"It leaves us wondering, I guess, whether we can rely on backup for the community's interests."

Let me see if I can help him understand what's going on here. The New Zealand Parliament has passed an enactment - a law of the land - that affirms all New Zealanders have a right to peacefully assemble and express themselves. That's what the occupiers are doing.

Those rights, as affirmed in law by New Zealand's Parliament, can only be limited in ways that are "demonstrably justified in a free and democratic society". This requires the person seeking to limit the rights - the DCC, in this case - to show both that there is a very good reason to limit the rights and that this reason, in the particular circumstances, supports the particular limit on the rights in question.

Therefore, it is not enough for the DCC simply to say "we have made a general bylaw that limits the rights in question" ... because the DCC (and all the bylaws it creates) must respect these rights that Parliament has affirmed in law. The DCC instead has to show that there is a good enough reason for applying the particular bylaw to this particular protest in a way that brings it to a halt. Which it has yet to do - apart from supply some very general complaints about "the wider public" being kept out of the upper Octagon.

So when Dave Cull complains "Is it up to [the police] to decide what the law is, or can we rely on our laws and bylaws?", I'd throw the question straight back at him. Is it up to the DCC to decide whether and how people are allowed to protest, and why should a blunt application of the DCC's chosen bylaws take precedence over those rights and freedoms that Parliament has said are fundamental to everyNew Zealander? Why does the fact you've decided you don't like people camping in the upper Octagon as a rallying point against the current inequalities in society mean that this action has to stop? And when you talk about 'the community's interests", which part of the community do you mean ... because as a Dunedin ratepayer in good standing, I certainly don't support the eviction.

Now, Dave Cull also says he and the DCC's Chief Executive "remain confident their legal position was a strong one". Well, if that really is the case, there's a very simple way for the DCC to prove it. Under the Local Government Act 2002, s.162, the DCC can go to the District Court and get an injunction "restraining a person from committing a breach of a bylaw..." Getting such an injunction from the Court would then be legal grounds for moving the Occupy Dunedin protesters off the upper Octagon.

But, of course, getting such an injunction will cost money - the DCC will have to foot the bill itself and thus add to its already burgeoning debt problem. And, despite the DCC's proclaimed confidence, it's not a foregone conclusion that the Court will grant one. Which may help explain why Mayor Cull is so disappointed that the Police won't bear the cost and the risk of breaking up the protest.

Oh - one last and important thing ... congratulations to the Police for their decision here. They cop flack (if you'll forgive the pun) when they get it wrong - so full credit and praise for getting it right.