Obligations · Rights · Options · Discussion 06

What changes when you are peacefully protesting?

A hīkoi, march or peaceful demonstration is not ordinary foot traffic. It is expressive and collective activity protected by law. But that protection does not mean every place, route or act is automatically lawful.

The practical task is to separate the protected protest from any specific conduct that is said to breach a particular law.

“What exactly are you saying is unlawful: the protest itself, or a specific act occurring during it?”

Start by separating the kaupapa from the alleged offence.Peacefully expressing a political view is one thing. Unreasonably obstructing a public way, damaging property, breaching a lawful traffic restriction or committing another offence is another. The person exercising authority should be able to identify which conduct and which law they are relying on.

Peaceful protest engages several protected rights

The New Zealand Bill of Rights Act protects more than one part of a peaceful hīkoi.

Expression

Section 14 protects the freedom to seek, receive and impart information and opinions of any kind in any form.

Peaceful assembly

Section 16 states that everyone has the right to freedom of peaceful assembly.

Association

Section 17 protects the freedom to associate with others.

Movement

Section 18 protects freedom of movement for people lawfully in New Zealand.

These rights matter when statutory powers are interpreted and exercised. They are not unlimited: section 5 allows reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society.

The point is not “I have a right, therefore no rule applies.” The point is that a restriction on protected activity needs a lawful basis and must be analysed as a restriction on protected activity.

A protest is not automatically a “disorderly assembly”

The Summary Offences Act contains a provision called “disorderly assembly”. Its wording is often more protective of genuine demonstrations than people realise.

Section 5A(3) expressly says the disorderly-assembly section does not apply to a group that assembles in a public place for the purpose of demonstrating support for, opposition to, or otherwise publicising a point of view, cause or campaign.

That distinction is deliberate.A group does not become a “disorderly assembly” under section 5A merely because it is a demonstration. Other offences can still arise from particular conduct, but the protest itself cannot simply be relabelled under that section.

The same discipline applies throughout this series: identify the actual conduct and the actual statutory provision. Do not allow labels to replace elements of an offence.

Public ways: the word “obstruction” has a legal definition

Section 22 of the Summary Offences Act deals with obstructing a public way.

For that section, “obstructs” means unreasonably impedes normal passage. A public way includes roads, streets, paths, malls, arcades and other ways over which the public has a right to pass and repass.

The offence also contains a sequence. A person must be obstructing the public way without reasonable excuse, be warned by a constable to desist, and then continue the obstruction or repeat it in circumstances where the warning reasonably applies.

The warning matters.

If section 22 is being relied upon, record whether a warning was actually given, what conduct it identified, what the person was told to do to desist, and whether the alleged obstruction continued afterwards.

“Is this a warning under section 22? What conduct do you say is unreasonably impeding normal passage, and what exactly are you requiring me to do to desist?”

Your options when a hīkoi is told to stop, move or disperse

1. Identify the legal basis.Ask whether the direction is based on a public-way offence, a traffic rule, a local bylaw, an arrest power, a safety power or something else. “Move” is an instruction; it is not the source of authority.

2. Ask what conduct is said to trigger the power.Is it standing in a carriageway? Blocking all passage? Entering a restricted route? Remaining after a warning? The alleged act matters.

3. Ask what compliance looks like.Can the march continue in one lane, on a footpath, by a different route, after traffic passes, or subject to another condition? Knowing the required conduct can preserve the hīkoi while addressing the specific legal concern.

4. Record the warning.If the offence relied upon requires a warning, preserve its exact wording, the time, the person who gave it and what happened next.

5. Distinguish objection from defiance.You can state that you disagree with the legal basis, ask that your objection be recorded, and still decide to comply with a direction while preserving the issue for later challenge.

Peaceful does not mean “no arrest power can exist”

A peaceful participant can still be arrested if a lawful arrest power applies to a specific suspected offence.

Section 39 of the Summary Offences Act gives a constable a warrantless arrest power where there is good cause to suspect a person of having committed an offence under that Act, subject to the section's stated exceptions. Section 22 is not one of those exceptions.

So a person should not rely on the statement “this is a peaceful protest” as though it automatically defeats every arrest power.

But the converse is equally important: the words “you are under arrest” do not prove that the suspected offence existed.

If arrest is threatened, ask:“What offence do you say I have committed, and what conduct are you relying on?”

If arrest occurs, ask:“Am I under arrest? What is the reason? I want to speak to a lawyer.”

Preserve the sequence.For an alleged public-way obstruction, note the alleged obstruction, warning, response, arrest and timing. Those stages may later matter separately.

The courts have recognised protest as protected expression

In Brooker v Police, the Supreme Court dealt with a protest conviction under the Summary Offences Act. The Court expressly treated the protest as expressive behaviour protected by section 14 of the Bill of Rights, and the conviction was set aside.

That does not mean every protest conviction must fail. It demonstrates why protected expression cannot be treated as legally irrelevant when public-order provisions are applied.

Roads, bridges and motorways require route-specific analysis

A right to peaceful assembly is not an automatic permission to occupy every part of every road, bridge or motorway.

Transport legislation, traffic-control devices, local restrictions, safety requirements, event approvals and route-specific conditions can apply independently. A historic march having crossed a particular route does not by itself create a permanent legal entitlement for every later march to use that route in the same way.

That is why organisers should ask a different question:

“What legal restriction applies to this route, and what lawful option allows the hīkoi to continue?”

The objective is not to surrender the protest because a route issue arises. It is to distinguish the protected assembly from the regulation of the particular space being used.

If the stated reason changes, record that

One of the most useful things a participant or observer can do is keep track of the legal explanation as it develops.

Was the initial concern safety? Then obstruction? Then disorder? Then arrest for another offence?

A later challenge often depends on contemporaneous evidence of what was actually said at the time the power was exercised—not a cleaner explanation reconstructed afterwards.

Nominate observers.People who are not leading chants or negotiating the route can record times, warnings, names or identifiers, movement of the crowd, available passage, instructions and arrests.

Preserve wide-angle evidence.Where lawful, footage showing the wider scene can be more useful than a close-up because it can show whether passage was actually blocked, whether routes remained open and what happened before an arrest.

Record available alternatives.If participants offered to move, narrow the march, change route or otherwise address the stated problem, preserve that fact.

What about force?

An arrest and the force used to carry it out are separate legal questions.

A lawful power to arrest does not itself answer whether every degree of force used was lawful. Equally, believing an arrest is unlawful does not automatically make every form of physical resistance lawful.

That distinction is important enough to require its own discussion. Discussion 07 will examine the limits on arrest force, excessive force, obstruction and self-defence together rather than hiding them behind the phrase “do not resist”.

The practical rule for a peaceful hīkoi is precision.What right is being exercised? What conduct is said to breach the law? What statutory power is being used? What warning or procedure is required? What can participants do to preserve the protest and their legal position?

A peaceful protest does not place people outside the law. It places the exercise of public power inside a context where expression, assembly, association and movement are already protected by law.

Primary and official sources

New Zealand Bill of Rights Act 1990 — ss 5, 14, 16–18, 22–23 ↗

Summary Offences Act 1981, s 5A — disorderly assembly, including demonstration exclusion ↗

Summary Offences Act 1981, s 22 — obstructing public way ↗

Summary Offences Act 1981, s 39 — arrest ↗

Brooker v Police [2007] NZSC 30 — Courts of New Zealand ↗

Legislation checked against official New Zealand sources on 31 August 2026. Route-specific transport rules, bylaws, traffic-management requirements and other enactments may also apply to a particular march or hīkoi.

General legal information only. This series improves legal literacy; it is not advice about a particular protest or arrest. The lawfulness of a direction, arrest or restriction depends on the exact statutory power and the facts at the time.

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