Graeme Edgeler: Constitutional Law Expert on the bill that would criminalise protest action in residential areas

Uncertainty whether a potential law criminalising protest action near private residences will be effective. 

Legislation is currently before Parliament that would give the Police greater power to move protesters in residential areas along – submissions on the bill closing yesterday.  

At the same time, an arrest has been made after an alleged vandalism at Winston Peters' Auckland home, which saw a window smashed and glass shattered over his dog. 

Peters says a number of pro-Palestine protests have been taking place outside his house recently, blasting loudspeakers just metres from his door. 

But Constitutional Law Expert Graeme Edgeler told Mike Hosking there's some confusion in the way the new legislation has been drafted, and he suspects people and police won’t be sure what’s covered.  

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Episode Transcript

Speaker 1 (00:00):
Rent a crowd. We're back outside Winston Peter's house. Yesterday
they ended up smashing a window. This time comes at
a time coincidentally that the government is looking to boost
the law around these sort of activity. Submissions have just
closed on the criminalizing protests near private homes. A Graham
Edgeler is constitutional law expert. Of course, he's back with
There's Graham morning to you.

Speaker 2 (00:17):
Good morning.

Speaker 1 (00:17):
Smashing windows is already illegal, so the new law won't
change anything. Is this one of those crimes that the
impact on the person is perhaps far greater than any
material outworking of the law.

Speaker 2 (00:29):
I mean, I think quite possibly. I mean that the
new offense isn't the particularly serious one you know in
the Summary Offenses Act, which is all sort of the
very low level crimes, And so I'm not sure this
new offense is going to make that much of a difference.

Speaker 1 (00:44):
If you can't do something that helps, doesn't it. I mean,
at the moment, most people who stand outside somebody's house
banging a drum wouldn't necessarily know they're breaking the law,
and they may.

Speaker 2 (00:54):
Not be indeed and the game, but equally they may be.
I mean, there are offenses which deal with this already.
And my suspicion is that the new offense that the drafted,
at least at the moment, is so complex, perhaps so
difficult to prove, you know, was that the reason they're
doing that was it, you know, just all the difficulties

(01:14):
improving that the police may just continue to use the
criminal offenses that already exist, which kind of have the
similar penalties.

Speaker 1 (01:21):
So if we were looking, so this is coincidental, the
Peters thing is coincidental to what the government were already doing.
Is this a lesson? And perhaps they've drafted this incorrectly
and they might need to. If you were looking to
solve a problem, would you do it differently?

Speaker 2 (01:35):
You probably would a little. I mean, there is some
confusion in the way this is drafted. You know, I'm
not sure what is covered. I suspect police won't be
sure what are covered. And when people aren't sure what's
covered and it's a criminal offense, courts tend to err
on the side of well, if you wanted to make
this clearly illegal, you'd have done a better job of
writing it. So if it's not clear, you tend to

(01:55):
favor on the side of the criminal. For criminal cases,
and so Hopefully the government can sort of narrow this
and fix it to cover exactly what it is they want.
I mean, it's sort of protests near residential areas. I
mean Queen Street's got you know, sort of massive, massive
apartment buildings on it those residential areas, and no protests
down Queen Street. I mean, no one's going to apply

(02:16):
the law that way. The police are going to apply
that law of the way, the courts are going to
apply the law that way, and so is it really
going to do much of anything interesting?

Speaker 1 (02:22):
Grime appreciate it as always Grime Edgeler, who's the constitutional
law expert.

Speaker 2 (02:26):
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Speaker 1 (02:29):
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