SUBMISSION TO THE JUSTICE COMMITTEE Summary Offences (Demonstrations Near Residential Premises) Amendment Bill

EXECUTIVE SUMMARY

Rights Aotearoa opposes the Summary Offences (Demonstrations Near Residential Premises) Amendment Bill in its entirety and urges the Justice Committee to recommend that Parliament reject it.

This Bill represents a disproportionate and unjustified interference with fundamental freedoms of expression and peaceful assembly protected by sections 14 and 16 of the New Zealand Bill of Rights Act 1990 (NZBORA). These rights are essential to democratic governance in Aotearoa New Zealand. Whilst the Bill purports to balance privacy rights with protest rights, it fails comprehensively to achieve that balance, instead creating a chilling effect on legitimate democratic participation that will fall most heavily on marginalised communities and those protesting systemic injustice.

The Bill is problematic in principle and defective in design. It criminalises conduct that is already adequately addressed by existing legislation, introduces vague and subjective standards that invite arbitrary enforcement, and creates a tool that will predictably be weaponised against protesters advocating for human rights, climate action, and Indigenous sovereignty. The proposed penalty of up to three months imprisonment for exercising fundamental rights is grossly disproportionate and fundamentally alters the constitutional balance against democratic freedoms.

We recommend that the Bill be withdrawn. We wish to appear before the Committee to speak to this submission.

PART ONE: THE BILL IS UNNECESSARY—EXISTING LAW IS ADEQUATE

1.1 No Demonstrated Legislative Gap

The primary justification for the Bill, as outlined in the Explanatory Note, is the prevention of "fear and intimidation" and disruption to the "use and enjoyment of the home." Rights Aotearoa submits that the existing legal framework robustly prohibits such harmful conduct. The Government has not identified any gap in the law that necessitates a new offence, nor provided empirical evidence of a pattern of residential protests that existing law cannot adequately address.

1.2 Comprehensive Existing Legal Protections

The law already provides substantial protection through multiple statutory mechanisms:

Summary Offences Act 1981:

• Section 21: Prohibits intimidation, harassment, or "besetting" a place of residence with intent to frighten or intimidate, directly addressing the most severe forms of targeted protest
• Sections 3 and 4: Cover disorderly or offensive behaviour in public places likely to cause violence or breach the peace
• Section 22: Prohibits obstructing a public way

Harassment Act 1997: Provides both civil and criminal remedies for patterns of behaviour causing distress or fear, including watching or loitering near a residence (section 8), with the availability of restraining orders

Trespass Act 1980: Protects against unlawful entry onto or unauthorised presence on private property

Crimes Act 1961: Sections 307A and 307B criminalise criminal harassment involving serious threats or patterns of specified acts

Nuisance law: Excessive noise and disturbance are regulated by common law nuisance, the Resource Management Act 1991, and local government bylaws

Common law: Provides remedies for intentional infliction of emotional distress

1.3 The Bill Targets Expression, Not Harm

These existing laws focus on specific, identifiable harms—intimidation, harassment, trespass, threats, violence. In contrast, the proposed Bill targets the "demonstration" itself, defined in section 5B(4) as a "public expression of support or opposition to further a cause or campaign."

This inappropriately targets the expressive nature of the activity rather than underlying harmful conduct that is not already illegal. The Bill criminalises peaceful protest based on its location and perceived inconvenience, not because it involves any conduct that would otherwise constitute an offence.

If existing laws are deemed insufficient—and no evidence has been presented that they are—the solution lies in better enforcement or narrower regulation addressing specific gaps, not in creating redundant legislation that fundamentally erodes constitutional rights.

PART TWO: THE BILL IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD

2.1 The Rule of Law Requires Clarity

The rule of law requires that criminal offences be defined with sufficient precision that individuals can understand what conduct is prohibited and regulate their behaviour accordingly. The proposed section 5B is excessively vague, granting excessive discretion to law enforcement and creating legal uncertainty that will chill legitimate democratic activity.

2.2 "Near Any Residential Premises" Is Undefined

Section 5B(1)(a) prohibits demonstrations "near any residential premises" without defining "near." Does this mean adjacent to the property? On the same street? Within visual or auditory range? Within 50 metres? 100 metres? The same suburb?

Unlike legislation creating specific safe access zones with precise geographical boundaries (such as the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Act 2022, which defines zones up to 150 metres), this term is entirely subjective and provides no guidance whatsoever.

This ambiguity places protesters in an impossible position. They cannot know in advance whether their planned assembly will be deemed "near" a residential premises. The answer will only emerge retrospectively, through police interpretation and subsequent judicial review—by which time criminal liability has already been incurred.

2.3 "Unreasonable Disruption" Is Impermissibly Subjective

The definition of "disruption" in section 5B(4) encompasses any disruption to the "use or enjoyment" of premises by a regular occupant. This is an exceptionally low threshold. Any protest visible or audible from a residence could arguably disrupt an occupant's "enjoyment" of their home, particularly if the occupant finds the protest's message offensive or confronting.

Determining when disruption becomes "unreasonable" is highly subjective. Section 5B(3) lists non-exhaustive factors for courts to consider—time of day, duration, actions of demonstrators, noise level, distance—but this does not provide certainty for protesters or police at the time of the demonstration. These factors are inherently contextual and evaluative, requiring post-hoc judicial determination of what was "reasonable."

Moreover, protest is inherently disruptive. This is essential to its function. Protests that are convenient, quiet, and easily ignored are rarely effective in achieving social change. The Bill's focus on "disruption" as the primary harm betrays a fundamental misunderstanding of the democratic role of protest.

2.4 The Chilling Effect Will Be Profound

The combination of vague wording, subjective standards, and the severe penalty of imprisonment will inevitably cause individuals and groups to self-censor. Faced with the risk of prosecution and a criminal record based on subjective interpretations by police officers and judges, rational actors will avoid organising protests near residential areas—even entirely peaceful ones that raise matters of urgent public importance.

This is not speculative. The chilling effect of vague laws on expressive activity is well-documented in jurisprudence and social science literature. When the boundary between lawful and unlawful conduct is unclear, and when the consequences of guessing wrong include criminal sanction, people will err on the side of silence.

This chilling effect undermines the fundamental democratic principle that those who hold power must be accountable to those over whom they exercise it. It privileges the comfort of the powerful over the rights of those seeking to challenge their decisions. 

PART THREE: THE BILL FAILS THE SECTION 5 NZBORA PROPORTIONALITY TEST

3.1 The Bill Imposes Unjustified Limits on Fundamental Rights

The freedoms of expression and peaceful assembly, affirmed by sections 14 and 16 of NZBORA, are foundational to democratic society. They are essential mechanisms for holding power to account and enabling political participation. As the Supreme Court observed in Morse v Police [2011] NZSC 45, protest is "a basic right in a democratic society" that must be robustly protected.

The Bill acknowledges that it limits these rights, yet provides no credible justification under section 5 of NZBORA. The threshold for justified limitation is high: any restriction must be prescribed by law, pursue a legitimate objective, be rationally connected to that objective, impair the right no more than reasonably necessary, and be proportionate in its overall effects.

This Bill fails each component of that analysis.

3.2 The Bill Is Not Rationally Connected to Its Objective

Even accepting that protecting privacy and enjoyment of the home is a legitimate objective—and it is—this Bill is not rationally connected to achieving that objective because existing law already provides comprehensive protection against the specific harms identified.

The Bill does not target conduct that threatens privacy or prevents use and enjoyment of the home. It targets "demonstrations"—that is, expressive activity—that occur "near" residential premises and cause some undefined quantum of "disruption." There is no requirement that the disruption be severe, sustained, threatening, or involve any conduct beyond peaceful assembly and expression.

A peaceful vigil involving silent standing with placards could satisfy the offence if it occurs at an hour deemed inconvenient or continues for a period deemed excessive. This is not a rational response to genuine privacy violations or harassment. It is the criminalisation of inconvenient speech.

3.3 The Bill Does Not Minimally Impair Rights

The Bill employs the blunt instrument of a broad criminal offence with a penalty of imprisonment rather than utilising less restrictive measures. Multiple alternatives exist that would impair rights less severely:

• Enforcement of existing laws: Enhanced police response to conduct that already constitutes intimidation, harassment, or disorderly behaviour under existing statutes
• Narrowly tailored time, place, and manner restrictions: Regulations addressing specific harms such as excessive noise after certain hours, without criminalising the demonstration itself
• Civil remedies: Expansion of civil restraining order mechanisms for individuals experiencing genuine harassment
• Precise geographical boundaries: If restrictions near residences are deemed necessary, defining specific and narrow exclusion zones rather than the undefined concept of "near"

The Government has not explained why these less restrictive alternatives are inadequate, nor why criminalisation with a penalty of imprisonment is necessary to achieve the Bill's stated objectives.

3.4 The Bill Is Disproportionate in Its Effects

The Bill disproportionately prioritises the comfort and convenience of residents—particularly elected officials and other public figures—over the high constitutional value of political expression and assembly. In a democracy, a degree of disruption, discomfort, and annoyance from protest must be tolerated. This is the price of living in a free society.

Furthermore, the penalty proposed in section 5B(2)—up to three months imprisonment or a $2,000 fine—is grossly disproportionate for conduct that involves nothing more than peaceful assembly and expression near a residential property. The use of imprisonment as a sanction for exercising fundamental rights fundamentally alters the constitutional balance against democratic freedoms and sends a stark message that dissent will be met with state coercion.

No comparable democratic jurisdiction imposes imprisonment for peaceful protest that does not involve violence, threats, or harassment already criminalised under general law. This Bill places Aotearoa New Zealand outside international norms for the protection of expressive rights.

PART FOUR: THE BILL UNDERMINES DEMOCRATIC ACCOUNTABILITY

4.1 Insulating Public Figures from Scrutiny

The Bill specifically targets demonstrations "directed at any regular occupant" of residential premises (section 5B(1)(b)(i)). In practice, this will predominantly apply to protests aimed at elected officials, Ministers, members of Parliament, judges, and other public figures exercising governmental power.

Protesting at the residences of decision-makers is a long-standing democratic tradition across jurisdictions, ensuring that those in power cannot isolate themselves from the consequences of their decisions. Individuals who enter public life, particularly elected office, inherently accept a reduced expectation of privacy concerning their public roles and policy decisions.

This is not to say that public figures have no right to privacy—they do. But that right must be balanced against the public's right to hold them accountable for the exercise of public power. Existing laws already protect public figures from harassment, intimidation, and threats. This Bill goes further, criminalising peaceful protest that simply makes those in power uncomfortable.

4.2 The Explanatory Note Reveals the Bill's True Purpose

We note with alarm the statement in the Explanatory Note that residential protests "have the potential to deter elected officials from taking stands on contentious issues." This fundamentally misunderstands the nature of democracy.

Democratic pressure and accountability are not harms to be prevented—they are necessary functions of a healthy political system. If elected officials are deterred from taking unpopular positions because they fear public protest, that is democracy functioning as intended. The alternative—elected officials insulated from public reaction to their decisions—is authoritarianism.

The proper response to controversial policy decisions is robust public debate, including protest. If Ministers find that debate uncomfortable or inconvenient, that discomfort is not a justification for criminalising the debate itself.

4.3 Historical Importance of Residential Protest

History demonstrates that residential protests have been essential to transformative social progress in Aotearoa and globally:

• The Springbok Tour protests, including demonstrations at the homes of politicians who supported the tour
• The Homosexual Law Reform campaign, which involved direct advocacy to MPs at their residences
• Contemporary climate activism and Palestinian rights advocacy

If this Bill had been in force during these movements, peaceful protesters would have faced criminal sanction for exercising their democratic rights. The social progress we now take for granted would have been significantly impeded.

PART FIVE: PROBLEMATIC MENS REA AND ENFORCEMENT CONCERNS

5.1 The "Ought to Know" Standard Is Inappropriately Low

The mental element (mens rea) required for the offence under section 5B(1)(b)(ii) is inappropriately low. The Bill criminalises a person if they "knew, or ought to have known" their actions were causing unreasonable disruption.

The "ought to know" standard is a negligence test—an objective assessment of what a reasonable person should have known in the circumstances. Criminalising the exercise of fundamental rights based on negligence, rather than intention or recklessness, is a significant overreach. This is particularly egregious when coupled with a penalty of imprisonment.

This standard places an unreasonable burden on protesters to anticipate:

• The subjective tolerance levels of residents
• The subjective interpretation of "unreasonable disruption" by individual police officers
• How a court will retrospectively evaluate whether disruption was "unreasonable" based on non-exhaustive factors

Protesters engaged in peaceful assembly cannot be expected to predict with certainty how their conduct will be judicially assessed after the fact. The "ought to know" standard effectively imposes strict liability disguised as negligence.

5.2 Risk of Arbitrary and Discriminatory Enforcement

The subjective nature of the key terms—"near," "unreasonable disruption," "ought to have known"—grants significant discretion to police officers making on-the-ground arrest decisions. This creates a substantial risk that the law will be enforced arbitrarily and potentially discriminatorily, engaging section 19 of NZBORA (freedom from discrimination).

Police officers may be more likely to deem a protest "unreasonable" if:

• They disagree with the cause being advocated
• The protesters are Māori, Pasifika, or otherwise from marginalised communities
• The protest challenges government policy that police are tasked with implementing
• The occupant of the residence is a person of authority or influence

Research on protest policing consistently demonstrates that enforcement decisions are influenced by implicit bias and political considerations. Vague laws exacerbate this problem by providing legal cover for discriminatory enforcement patterns.

5.3 Selective Enforcement Is Inevitable

History demonstrates that laws ostensibly neutral on their face are applied disparately against unpopular causes and marginalised groups. We anticipate that this Bill, if enacted, will be disproportionately enforced against:

• Māori protesters advocating for Indigenous sovereignty and challenging Crown breaches of te Tiriti o Waitangi
• Climate activists protesting Government inaction on the climate crisis
• Disability rights advocates challenging cuts to support services
• Union members and workers demonstrating against employment law changes
• LGBTIQ+ communities protesting legislative attacks on our rights and safety
• Reproductive justice advocates challenging restrictions on abortion access

Meanwhile, protests by more socially powerful groups—such as farmers, business lobbies, or religious organisations—are likely to be treated with greater tolerance, even when they cause equivalent or greater disruption.

This predictable pattern of selective enforcement undermines the rule of law and entrenches existing power imbalances.

PART SIX: THE BILL MISCONSTRUES INTERNATIONAL HUMAN RIGHTS LAW

6.1 Privacy Rights Do Not Trump Freedom of Expression and Assembly

The Explanatory Note invokes Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which protects against arbitrary or unlawful interference with privacy, family, and home. However, it conspicuously omits reference to Articles 19 and 21 of the same instrument, which protect freedom of expression and peaceful assembly.

International human rights law does not establish a hierarchy in which privacy automatically prevails over expression and assembly. Rather, it requires States Parties to balance competing rights through means that are necessary, proportionate, and non-discriminatory. The Human Rights Committee has consistently emphasised that restrictions on expression and assembly must be construed narrowly, must pursue a legitimate aim, and must not be used to suppress dissent or silence unpopular viewpoints.

This Bill fails that standard. It elevates the convenience and comfort of individuals over the expressive and associational rights of the public, without any requirement that the disruption be severe, threatening, or exceed what is reasonably tolerable in a democratic society.

6.2 Democracies Require Uncomfortable Protest

Protest is inherently disruptive. Its purpose is to challenge complacency, disrupt routine, and force public attention onto issues that power would prefer to ignore. The discomfort experienced by those in power when confronted with public opposition to their decisions is not a harm requiring legal remedy—it is a feature of democratic accountability.

International human rights jurisprudence recognises this principle. The European Court of Human Rights has repeatedly held that States must tolerate a significant degree of disruption from protest, and that restrictions must be strictly necessary and proportionate. Similarly, the Inter-American Court of Human Rights has emphasised that peaceful assembly, even when inconvenient or disruptive, is protected expression that States must facilitate rather than suppress.

If the law had criminalised demonstrations causing "unreasonable disruption" during the Springbok Tour protests, the Homosexual Law Reform campaign, or the foreshore and seabed hikoi, those movements would have been silenced. The rights we now take for granted would not exist.

This Bill seeks to sanitise protest, to render it palatable and non-threatening to those in power. In doing so, it betrays the democratic principles it purports to protect.

PART SEVEN: THE BILL WILL DISPROPORTIONATELY HARM MARGINALISED COMMUNITIES

7.1 Our Communities Already Face Heightened Surveillance

Transgender, non-binary, and intersex people—the communities at the heart of Rights Aotearoa's mahi—already face heightened surveillance, policing, and criminalisation. When they protest legislative attacks on their rights, healthcare access, or legal recognition, they do so in an environment of systemic marginalisation and state indifference to our safety.

This Bill hands additional tools to those who would silence their advocacy. It enables the very officials whose policies harm us—Ministers who cut funding for gender-affirming healthcare, MPs who propose discriminatory legislation, officials who deny our legal existence—to invoke the criminal law to suppress their dissent.

7.2 The Chilling Effect Will Silence Marginalised Voices

Even if this law were never enforced against our communities—though it will be—its mere existence creates a chilling effect that will silence marginalised voices disproportionately. Communities already facing systemic oppression cannot afford the risk of criminal records, imprisonment, or the financial burden of defending against charges.

Organisers will be deterred from planning demonstrations near the homes of elected officials for fear of criminal liability. Individuals will hesitate to participate in actions that, whilst entirely peaceful, might be characterised after the fact as "unreasonably disruptive." The most vulnerable will be silenced, whilst those with greater social power and resources will continue to access decision-makers through formal channels unavailable to marginalised groups.

7.3 Protest Is Often the Only Avenue for Accountability

For many marginalised communities, direct protest is the only meaningful avenue for holding power to account. We do not have the institutional access, financial resources, or social capital to influence policy through lobbying, campaign donations, or private meetings with Ministers. When the Government enacts policies that threaten our survival, bodily autonomy, or fundamental dignity, we must be able to bring that harm directly to the attention of those responsible.

This Bill forecloses that avenue, entrenching a system in which the powerful can make decisions affecting the lives of the powerless without ever having to confront the human consequences of those decisions.

PART EIGHT: RECOMMENDATIONS

Rights Aotearoa recommends that the Justice Committee:

8.1 Primary Recommendation

Recommend that Parliament reject the Bill in its entirety. The Bill is unnecessary, disproportionate, unconstitutionally vague, and fundamentally incompatible with New Zealand's constitutional commitment to freedom of expression and peaceful assembly.

8.2 Alternative Recommendations (if the Committee is not prepared to recommend outright rejection)

If the Committee is not prepared to recommend outright rejection, it should recommend substantial amendment to address the Bill's fundamental flaws:

a) Define "near" with geographical precision

• Specify a maximum distance (e.g., within 25 metres of the boundary of residential premises)
• Clarify that public footpaths and roads adjacent to residential property are not "near" for the purposes of the offence

b) Replace the "ought to know" standard with a requirement for actual knowledge or recklessness

• Amend section 5B(1)(b)(ii) to require that the person "knows" or "is reckless as to whether" the demonstration is causing unreasonable disruption
• Remove the negligence-based "ought to know" standard entirely

c) Define "unreasonable disruption" to require a high threshold of harm

• Specify that disruption is only "unreasonable" if it involves sustained intimidation, threats, harassment, or prevents reasonable access to or egress from the premises
• Clarify that mere visibility or audibility of a protest, discomfort, or disagreement with the protest's message does not constitute "unreasonable disruption"
• Remove the vague "use or enjoyment" standard and focus on concrete, measurable harms

d) Exempt protests on matters of public interest where the target is a public official

• Include an explicit exemption for demonstrations directed at elected officials, Ministers, MPs, judges, or other public figures exercising governmental power
• Recognise the heightened public interest in holding such persons accountable through direct advocacy

e) Include explicit safeguards against discriminatory enforcement

• Require police to record and report data on enforcement, including the nature of the protest, the cause being advocated, and demographic information about those charged
• Mandate judicial review of any enforcement patterns suggesting discriminatory application

f) Remove imprisonment as a penalty

• Delete imprisonment from section 5B(2) and provide only for a fine, reflecting the non-violent nature of the conduct being criminalised
• Alternatively, limit imprisonment to cases involving actual violence, threats, or damage to property

g) Require annual reporting on enforcement

• Mandate that the Attorney-General report annually to Parliament on enforcement patterns, disaggregated by the nature of the protest, the demographic characteristics of those charged, and outcomes of prosecutions
• Require evaluation of whether enforcement is occurring in a non-discriminatory manner consistent with NZBORA

8.3 Process Recommendations

h) Commission independent research into the adequacy of existing legal protections before proceeding further with this or similar legislation. No evidence has been presented demonstrating a legislative gap requiring this Bill.

i) Engage meaningfully with civil society, including Māori, Pasifika, disability, climate, and LGBTIQ+ advocacy organisations, on the impact of criminalising protest near residential premises. The consultation process to date has been inadequate.

j) Obtain a new NZBORA section 7 report addressing whether the Bill can be justified under section 5, including detailed analysis of less restrictive alternatives and proportionality. The current report is woefully inadequate.

CONCLUSION

This Bill is a solution in search of a problem. It addresses no demonstrated gap in the law, provides no meaningful protection beyond what already exists, and creates vast potential for abuse. Its effect will be to silence dissent, entrench power imbalances, and insulate elected officials from democratic accountability.

The Bill fails comprehensively to meet the requirements of section 5 of NZBORA. It is not minimally impairing, not proportionate, and not rationally connected to any legitimate objective that is not already served by existing law. Its vague language and low mens rea threshold guarantee arbitrary and discriminatory enforcement. Its penalty of imprisonment for peaceful protest is grossly disproportionate and places Aotearoa outside international norms for the protection of fundamental freedoms.

In a functioning democracy, those who wield power must be prepared to face the consequences of their decisions—including peaceful protests outside their homes. Discomfort is not harm. Inconvenience is not intimidation. And the chilling of dissent is not a price worth paying for the comfort of the powerful.

Rights Aotearoa urges the Committee to reject this Bill and to recommit to the protection of the fundamental freedoms upon which our democracy depends. The rights to freedom of expression and peaceful assembly are not obstacles to good governance—they are essential preconditions for it.

Ngā mihi nui,

Paul Thistoll
Chief Executive
Rights Aotearoa