10 March 2006

Wanganui DC - bans on gang patches

Wanganui DC: Council by-law to ban gang regalia in public places National Radio: Wanganui Cracks Down On Gangs (Part 1) / (Part 2) This is interesting and (possibly) misconceived. There's the obvious issue about whether the bylaw will be consistent with the Bill of Rights (freedom of expression, association, and movement). Section 155(3) requires all bylaws to be Bill of Rights consistent. I suspect the Council will fail to demonstrate that their measure is proportionate. But perhaps more difficult is the question of enforcement. There will be no power to arrest people who breach such a bylaw: - First, as the penalty for breaching a bylaw is a fine only, the police have no automatic power of arrest. - Secondly, the local authority has no power to incorporate powers of arrest in their bylaws. (The power to arrest for breaches of liquor ban bylaws is unusual and is specifically provided for in the Local Government Act 2002.) In addition, other enforcement powers are limited and may not be suitable for addressing the situation. It is doubtful whether the power to seize property in breach of a bylaw applies to seizing clothing and there is no automatic ability to issue infringement notices for such breaches (the government must pass specific regulations allowing this). UPDATE: See the Wanganui Chronicle (5 April 2006) "Doubts about gang patch by-law" where I express similar sentiments... UPDATE2: It appears that some sense has prevailed, with the Council moving back from the bylaw option, see Wanganui Chronicle (20 July 2006 "Police unclear on gang ban bylaw". However, while the proposed local bill option may resolve some of the enforcement difficulties and will prevent any Bill of Rights challenges, it will not make the proposal Bill of Rights-consistent. In my view, Parliament ought not pass the Bill because of the egregious breaches of rights and failure of the Council to present a thorough and robust case to justify the breaches.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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