A senior Dunedin police officer has spoken out about the police decision not to evict protesters from the Octagon, saying local police are "between a rock and a hard place''.
The officer also said it would be irresponsible of police to risk having to pay out thousands of dollars of public money to the protesters.
Dunedin Mayor Dave Cull said yesterday he would not rule out the use of private security guards to evict the Occupy Dunedin protesters, as the city council waited for "urgent clarification'' on its legal position.
Mr Cull said private security was "not an option we would favour'', and the council would much prefer to use the proper agencies of the country.
But Dunedin-Clutha police area emergency response manager Inspector Alastair Dickie offered an explanation for police action, because he wanted to respond to "increasing amounts of criticism of the Dunedin police for failing to act in relation to the Octagon occupation''.
He said police would not enforce a trespass notice issued on October 15 by the Dunedin City Council to Occupy Dunedin protesters camping in the Octagon, because it would leave them open to being sued for breaching the Bill of Rights Act.
Legal experts yesterday said they were not surprised by that decision, and commended the police for their decision.
Insp Dickie said when police had previously moved protesters in similar situations in the North Island, they had ended up paying out up to $100,000 to the protesters, for breaching their rights under the Bill of Rights Act.
It would be "irresponsible'' of the police to risk doing that again.
"The protesters have the right under the Bill of Rights Act to protest peacefully.''
Case law indicated the Act superseded lesser legislation such as council bylaws on illegal camping.
He said police had met council staff more than once and the position had been explained to them.
If the council wanted to move the protesters, the most effective method was for it to apply to the court for an injunction. However, that was not straight forward either, he said.
An injunction could be sought without notifying the protesters - if police lodged an affidavit with the court supporting the council application.
"This would have been the ideal course as if the protesters failed to act on the court order to leave, the DCC could return to the court and seek a warrant which the police could execute to remove the protesters - end of story.''
The process to file a non-notified application for an injunction did start last week. However, after internal legal advice from Police National Headquarters in Wellington, Dunedin police were instructed to withdraw the affidavit.
That left the council with the option of a notified version of the injunction application process, meaning the protesters would have to be given the opportunity to make submissions at the court hearing for the injunction.
That could have become a drawn-out process and led to a substantial cost to council, so they had been fiscally responsible and chosen not to proceed down that road, Insp Dickie said.
The council decided to issue a trespass notice. However, the police would not act for reasons already explained to them.
"So, as you can see, the local police are between a rock and a hard place. They are simply keeping the peace between the pro- and the anti-protesters and dealing with any breaches of the law where it is clear they can act without being prosecuted/sued themselves.''
Local Government New Zealand president Lawrence Yule also believes the issue will probably need to be resolved through the courts.
He says it's unclear whether the Bill of Rights or the council's by-law has precedence.
"Ultimately I think it's either up to the Dunedin City Council to decide whether in fact this can be resolved outside of court process or otherwise some type of judicial review to make it clearer as to which piece of law has prominence and effectively whether the police can act, or can't act.
"I think it'll exactly look at both legal perspectives and for want of a better term, who's right and who's wrong,'' he says.