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In any kind and in any form

Tomorrow morning Occupy Auckland go to court to defend Auckland Council's application for an injunction forcing them to leave Aotea Square. I was going to post a more detailed summary of the relevant law involved, but I really can't be bothered right now. I might get around to it sometime in the next few days, but for now, here's a prediction.

Ultimately, the argument is going to boil down to one around s 5 of the Bill of Rights Act 1990, which says:

5 Justified limitations
Subject to section 4 of this Bill of Rights, 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.

The two most obvious freedoms that the Occupiers are going to allege have been breached are those in ss 14 and 16 of the Act:

14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions in any kind and in any form.
16 Freedom of peaceful assembly
Everyone has the right to freedom of peaceful assembly.

They might also make a case based on s 21 of the Human Rights Act 1993, via s 19 of the Bill of Rights. The two sections are:


21 Prohibited grounds of discrimination
(j) Political opinion, which includes the lack of a particular political opinion or any political opinion:

19 Freedom from discrimination
(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

I doubt they'll get very far on the s 19 (discrimination) argument, simply because I can't really see how they've been discriminated against. I also can't see them having much luck with s 16 (peaceful assembly) because what they're doing goes quite a long way beyond simply assembling.

The one that I think they will end up hanging their hat on is s 14 (freedom of expression). If I'm right, and this is what it comes down to, then they're going to have to come up with a pretty strong narrative to explain why occupation is a form of expression.

Because the matter is sub judice I'm not going to mention the argument that I would make in support of that assertion, but I will be interested over the next two days to hear how, or if, the defence manages it. I believe that it's an argument that can be made, and I think their success (both legal and otherwise) depends on it.

2 comments:

Anonymous said...

with you all the way

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