29 August 2006

Broadcasting of Parliament

> NZHerald (29.08.2006): "TV3 calls parliamentary rules on filming of MPs 'arcane'" > DomPost (29.08.2006): "TV3 calls for change to Parliament's rules" I think the recent punishment of TV3 illustrates how the present rules regulating what can be filmed in the House are objectionable. Off the top of my head, I suspect the rule preventing filming of anything other than the member speaking is inconsistent with the Bill of Rights.

First, the Bill of Rights applies to Parliament under section 3(a):

This Bill of Rights applies only to acts done— (a)By the legislative, executive, or judicial branches of the government of New Zealand[.]

Of course, any breach cannot be raised in the courts because of parliamentary privilege under the Bill of Rights 1688:

Freedom of speech—That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.

In my view, this means Parliament has the obligation to act in a Bill of Rights-consistent manner but is accountable only to itself for breaches of it. (As an aside, there is an interesting question about whether complaints can be made to international human rights bodies. There's others better placed to explore this and it's not really a realistic option here.)

Secondly, there is the question of whether the present rules breach the Bill of Rights. Prima facie the rules infringe section 14:

s14.Freedom of expression— Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

However, the prima facies infringement may be permissible if it is a justified limit under section 5:

s5. 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.

This involves an evaluation of whether the limitation is necessary, suitable, and appropriate. As the Court of Appeal in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 said:

In determining whether an abrogation or limitation of a right or freedom can be justified in terms of s 5, it is desirable first to identify the objective which the legislature was endeavouring to achieve by the provision in question. The importance and significance of that objective must then be assessed. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledgehammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective. Of necessity value judgments will be involved. In this case it is the value to society of freedom of expression, against the value society places on protecting children and young persons from exploitation for sexual purposes, and on protecting society generally, or sections of it, from being exposed to the various kinds of conduct referred to in s 3 of the Act. Ultimately, whether the limitation in issue can or cannot be demonstrably justified in a free and democratic society is a matter of judgment which the Court is obliged to make on behalf of the society which it serves and after considering all the issues which may have a bearing on the individual case, whether they be social, legal, moral, economic, administrative, ethical or otherwise.

I don't have time to set out an extended analysis but I have strong doubts about whether this rule passes this analysis. The Speaker's remarks in the DomPost suggest the objective of the rule:

Rules covering the filming of members were in place to help viewers see Parliament as it was most of the time. "If that happened, the viewer would see that the behaviour of most members, most of the time, is consistent with the standards of conduct the public expects from MPs," she said. "Unfortunately, by concentrating on gestures such as that by Mr Mark, they leave the viewer with a very poor opinion of all members."

This must be regarded as being a weak objective. It might be just enough to justify a limitation but is not strong. (Presumably, the rule also seeks to stop other MPs grandstanding by waving props etc while another member is speaking.) However, in the light of the doubtful strength of the objective, the limitation would seem to be disproportionate. The prohibition only partially achieves the objective: print and radio being able to convey, albeit in more limited form, the activity which Parliament is seeking suppress. And, most significantly, the prohibition has a detrimental effect on democracy by attempting to hide events which may be of interest and significant to the public. A member's behaviour in the House or other non-speaking activities which they undertake is often newsworthy in its own right.

In my view, it's time for the liberalisation of this rule.

PS I'll try later this week to obtain a copy of the rules and any supporting material which may have touched on these matters.

22 August 2006

Retrospective (or retroactive) legislation and pledge cards

Much fuss has been made about the suggestion that Labour may consider validating legislation if its pledge card spending and spending by other parties out of the Parliamentary Leaders fund is found to be invalid, on the basis that the expenditure was consistent with the reasonable expectation, induced by officials, that it was permissible. For example, Matthew Hooton said (SST: "It's time to pay the piper, Helen"):
Retrospective legislation is always wrong in the sense of being in breach of fundamental constitutional conventions. It involves parliament assuming the power to decide not only what is to be legal and illegal in the future, but to declare previous acts or decisions to have been legal or illegal. That is arbitrary power, and wrong.
My response (previously posted on comments on KiwiBlog) is as follows:

The difficulty with Hooton's column and much of the discussion on this issue is that it is being undertaken by way of slogans, without an appreciation of a nuances of the legal principles at stake. So, yes, in general, retrospective legislation is a bad thing. But, not always. The "bible" when it comes to good legislation is the Legislation Advisory Committee's Guidelines on Process & Content of Legislation. See Chapter Three, Part 3 (extract): "The general principle is that statutes and regulations operate prospectively, that is, they do not affect existing situations. ... However, while the general principle is that legislation is prospective, not all examples of legislation which impacts on existing situations will be unfair (see Burrows, Statute Law in New Zealand, 1999, page 358). Examples of retrospective provisions which are seen as having only a benign effect include those which validate appointments, or provide for backdated salary and benefit payments and new superannuation arrangements. The impact of the legislation on those affected can be assessed by considering a range of factors including the purpose of the legislation and the hardship of the result on those affected. For example, individuals may have a reasonable expectation based on entering into legal obligations, such as contracts, on the basis that the law will have a certain impact." So, is it really bad in this case? Well, I'm not convinced it would be. I've previously noted (LAWS 179: Shifting Goalposts) that, assuming there was an officially induced expectation that the expenditure was permitted, then retrospective legislation might be consistent with the Rule of Law, not contrary to it.

One the world's foremost Rule of Law theorists, our own Jeremy Waldron, has written an interesting article on retroactive laws: > Jeremy Waldron, "Retroactive Law: How Dodgy was Duynhoven?" (2004) 10 Otago Law Review 631 He notes a similar point to the one I note above, but suggests that an even more nuanced analysis is required (page 648):
We might say - and there is considerable authority for this - that retrospective and retroactive legislation are objectionable only in the context of penal laws or only when in some other way they affect legal rights. ... Stated in a positive way, the suggestion we are considering is that legislation which confers benefits ex post facto, or lifts burdens retroactively, or removes prohibitions, or cures disqualifications is not nearly so objectionable as penal or digestive legislation. ... I wonder about that. Let us begin with curative legislation. Is retroactive legislation which is curative alway benign? Surely not. ... Sometimes it is, sometimes it is not. Often it is a way of covering up or avoiding the embarrassment of administrative irregularity - pretending it did not happen, and depriving the citizen of the remedies that would otherwise be associated with its occurance.
He expands on these points in his article. Again, I'm not in a position to assess the propriety of the present proposal in the absence of certainty about the factual matrix surrounding the spending. My previous comments were were based on the assumption of an official assurance or reasonable expectation about the legitimacy of the spending. That point has been contested, although I'm not yet convinced the Auditor General's "warning" (NZHerald: "MPs knew rules on spending, says watchdog") was enough to displace any reasonable expectation induced by Parliamentary Services. The so-called warning was made in the OAG report: Government and parliamentary publicity and advertising, "Part 6 - Advertising in the pre-election period". The relevant extract seems to be as follows:

6.5 During an election period, successive governments have chosen to avoid conducting advertising campaigns that may create a perception that funds are being used to finance publicity for party political purposes. Paragraph 4.14 of the Cabinet Manual 2001 states – In the period immediately before a general election, the government is not bound by the caretaker convention…unless the election has resulted from the government losing the support of the House. But successive governments have chosen to restrict their actions to some extent at this time, in recognition of the fact that an election, and therefore potentially a change of government, is imminent. For example…some government advertising has been thought to be inappropriate during the election campaign (that is, where it might create a perception that public funds are being used to finance publicity for party political purposes – see the Guidelines for Government Advertising at appendix 2 for general guidance). In practice, restraints have tended to be applied from approximately three months before the general election is due, or (if the period between the announcement of the election and polling day is less than three months) from the announcement of the election. 6.6 Judgements about when and how restraints should be applied are matters for Ministers and, ultimately, the Prime Minister. The question under the guidelines of whether publicity or advertising has resulted in public funds being “used to finance publicity for party political purposes” must be considered with reference not only to the content of the publicity or advertising, but also to its timing. 6.7 The Members’ Handbook Guidelines expressly exclude “party political, promotional or electioneering material for the purpose of supporting the election of any person” from the definition of “parliamentary business” in relation to advertising by MPs or parliamentary parties. 6.8 There is no guidance as to how this should be applied in the period before Parliament is dissolved. However, there is clear potential for MPs’ and parliamentary parties’ publicity and dvertising activities in the weeks and months leading up to a dissolution to bring considerable party political benefit. That potential increases as political content is permitted in such publicity and advertising. ... 6.9 It needs to be recognised that government and parliamentary publicity and advertising outside the 3-month period before a general election can have electoral advantage for governing parties and parliamentary parties. 6.10 It is clearly impracticable for government publicity and advertising to cease completely during a pre-election period. The routine business of government must continue, and publicity and advertising is an integral part of that business. However, the potential for improper benefit exists nonetheless. 6.11 The basic expectations of the Cabinet Manual 2001 and the Members’ Handbook Guidelines are clear about conducting advertising campaigns close to a general election, and not using parliamentary advertising for electioneering or related purposes. Beyond those basic expectations, the potential for indirect political benefit requires risk management by Ministers and government department chief executives. ... 6.15 There is a need for similar guidance in respect of government department and ministerial publicity activities in a pre-election period. In recent months, we have been approached on several occasions for assurance about advertising campaigns at public expense that have been planned by government departments or Crown entities during a general election year. In each case, the content of the advertising was consistent with the Government Advertising Guidelines, had the advertising been scheduled to take place outside an election period. 6.16 We do not regard it as our role to make judgements on whether electoral advantage might accrue as a result of particular publicity or advertising being undertaken close to an election. In our view, that judgement is one for chief executives and, ultimately, for Ministers. 6.17 However, the making of those judgements would clearly be enhanced if there were more comprehensive guidance about how to manage the risks involved.

Okay, so there is an oblique warning about the care that needs to be taken with such spending. But, if anything, the report seems to augment the view that there was uncertainty about what was permissible, leaving room for the conclusion that the expenditure may have been expressly or implicitly approved by Parliamentary Services.

UPDATE: Kathryn Ryan's interview with Auditor-General Kevin Brady seems to suggest that: (a) despite the general warning, the rules may still have been clear; and (b) Parliamentary Services seems to have had a more than mere "administration" role and may have "approved" spending. See NineToNoon: Political Advertising.

19 August 2006

Rotorua District Council proposal to ban serial offenders from the CBD – further reflections

> LAWS179: Rotorua District Council proposal to ban serial offenders from the CBD Following feedback, discussion and further reflection, I should update this topic and indicate where my thinking is now at: 1. I’ve firmed up my view that this proposal would breach an orthodox Beggs test (that is, the analysis of whether the issuing of a trespass notice by a public body is Bill of Rights consistent). To reinforce the basic point I make, I’ve posted a diagram I had on my whiteboard which illustrates the greater flow-on effect of trespass notices in relation to thoroughfares such as roads, in contrast to discrete public(ly owned) spaces. You’ll see from the diagram that in the second scenario the restriction restricts movement beyond its own parameters. Whiteboard image 2. More fundamentally, I think that in principle local authorities are not entitled to issue trespass notices in respect of roads. It’s clear that local authorities “own” the roads. Section 316(1) of the Local Government Act 1974 (still in force) provides:
Subject to section 318 of this Act, all roads and the soil thereof, and all materials of which they are composed, shall by force of this section vest in fee simple in the council of the district in which they are situated. There shall also vest in the council all materials placed or laid on any road in order to be used for the purposes thereof.
In addition, section 238(1) of the Resource Management Act provides:
When a District Land Registrar or Registrar of Deeds deposits a survey plan… the land shown on the survey plan as road to be vested in a local authority … vests, free from all interests in land including any encumbrances (without the necessity of any instrument of release or discharge or otherwise), … in the territorial authority.
Section 317 of the LGA74 also provides that all roads within a local authority’s district (with some exceptions) are within their “control”. The question is whether this ownership/control right translates into the right of an occupier under the Trespass Act to issue trespass notices. Ordinarily, a owner in occupation will naturally have these rights. However, there are a number of reasons why I think there is a fetter on the local authorities’ right of ownership which means they do not have the power to issue trespass notices in relation to roads: - There is a clear and powerful common law principle that the public have a right of passage in relation to roads. The High Court in Paprzik v Tauranga District Council [1992] 3 NZLR 176 said:
Once land is dedicated as a public road members of the public have, with certain qualifications, a right of passage over it. That general right of passage is supported by correlative duties imposed upon others not to substantially and unreasonably impede it. Effect is given to those duties by the laws of nuisance, trespass, and negligence: … But the ordinary citizen's common law right to use a publicly dedicated highway is not absolute. In addition to any limitations in the terms of the original dedication, it is qualified by the fact that it is a right of passage only, the reasonable requirements of other road users, and any superimposed legislation.
It’s not an absolute right but the established exceptions to it are narrow. - In many respects, in the light of the common law right, it might be possible to argue that it is the public generally which have the right of occupation (albeit a qualified one), even though the local authority ultimately “owns” the road. It’s not unusual for glosses to be placed on “ownership”, that is, ownership may be treated as a “bundle of rights”, some of which may not be present in some situations. - The restricted nature of a local authority’s ownership right and the need for exceptions to the common law right of passage to be authorised by legislation has been confirmed by the Court of Appeal in Lower Hutt City Council and Another v Attorney-General ex rel Moulder [1977] 1 NZLR 184. The Court of Appeal said:
[T]he fact that streets are vested in and are under the control of the local authority does not entitle a council to erect or authorise the erection of a structure in a street if that structure amounts to what is technically described as a "public nuisance". … At common law a permanent obstruction erected upon a highway without lawful authority, and which renders the way less commodious than before to the public, is a "public nuisance" provided that the obstruction constitutes an appreciable interference with the traffic in the street[.]
There's some analogy between erecting an obstacle which undermines the public right of passage and the purpose invocation of a regulatory or ownership power which similarly undermines the right. - The (relevant) specific control powers that local authorities have in respect of roads include the following: (a) the power to “stop or close any road or part thereof in the manner and upon the conditions set out in section 342 and Schedule 10 to this Act” (s319(h) LGA74); (b) the power to “[c]lose any road to traffic or any specified type of traffic (including pedestrian traffic) on a temporary basis in accordance with that Schedule and impose or permit the imposition of charges as provided for in that Schedule” (s342(1)(b) LGA74); (c) the power to pass bylaws to regulate the “use of roads” for narrow and specific purposes (s72 Transport Act 1962); (d) the general power to pass bylaws in respect of public places or land under their control (ss 145 & 146 LGA 2002). Notably, there’s no prescribed power either expressly allowing the issue of trespass notices or even roughly consistent with it. In fact, the regime suggests very narrow scope to limit the right of passage. And, even if allowed, any control must be undertaken through bylaws or other public participatory processes. I remain open to the possibility that this type of scheme might be able to be undertaken through a bylaw regime (there’s obviously still some substantive and Bill of Rights hurdles that need to be passed) but I’m now convinced it cannot be achieved under the Trespass Act. 3. The Council has, in my view, failed to adequately and robustly engage with the issues at stake. See Rotorua District Council reports. The analysis is superficial, light-weight, and ignores some of the fundamental principles which I and others have noted. While I’m all for local authorities being given “deference” or a “margin of appreciation” in respect of their policy and law-making functions, that respect must be earned through logical and robust analysis and judgement. Unfortunately in this case I think the Council falls well short (although I note they are still to receive legal advice on the legality of the scheme which may remedy some of the deficiencies). As a small point, I think the proposal to “tailor” the trespass notices (limited to 3 months, not 2 years; and allowing conditional access for certain purposes) – which has some merit – misconstrues the absolute nature of a trespass notice issued under the Trespass Act.

14 August 2006

NZJPIL: Ameliorating the Collateral Damage Caused by Collateral Attack in Administrative Law

One of the joys of the academy is the pleasure in seeking your own scholarly work being published. My most recent article is linked below: Dean R Knight, "Ameliorating the Collateral Damage Caused by Collateral Attack in Administrative Law" (2006) 4 NZJPIL 117 For those wanting a short preview, the abstract follows:
Collateral attack is the indirect challenge of administrative decisions, instruments or actions in civil and criminal proceedings for the purpose of determining private rights. Collateral challenges are a common way litigants seek to contest actions of the executive or other public bodies, and represent a different mechanism for the courts to exercise their supervisory jurisdiction over administrative action. The New Zealand courts have adopted a straightforward approach to the doctrine of collateral attack, generally allowing such challenges. This paper explores the principles that underlie the doctrine of collateral attack and the potential difficulties that the doctrine creates. It is argued that the courts should take a more principled approach to determining whether collateral attack should be allowed in any individual case. A number of "touchstones" are proposed to ameliorate any collateral damage to administrative law's unique character while still ensuring that people are able to challenge the invalidity of administrative instruments, decisions or actions as and when they arise in civil and criminal proceedings.

Shifting goalposts

NZ Herald: "Labour shifts the goalposts" KiwiBlog: "Retropsective Legislation" NoRightTurn: "Illegal Election Spending" It's a pity the recent discussion about the Parliamentary Leaders fund has become so politicised because its an interesting legal scenario in its own right. I must say that I share the concerns expressed about the goalposts being shifted during the game. Consider the following example: - Citizen A is a supporter of freedom of speech for bloggers. - Citizen A is aware that public body B maintains a grants scheme which funds projects promoting the freedom of expression. - Citizen A inquiries about whether Public Body B's grants scheme is available for the purpose of funding a website promoting the freedom of speech for bloggers. - Public Body B assures Citizen A that it does. - Citizen A receives funding under the scheme and uses it to host the website promoting the freedom of speech for bloggers. - Subsequently, Auditor C advises Public Body B and Citizen A that the grants scheme should not be available for the purpose of promoting freedom of speech for bloggers. - Public Body B therefore requires Citizen A to repay the grant. Should Citizen A be required to repay the grant? Well, the issue is a rather controversial legal question. On the one hand, the grant is illegal and some say that any illegality must be stopped in its tracks as soon as it is seen - which includes applying restitutionary principles to recover funds illegally expended. On the other hand, there is a good argument that the change in position from the public body undermines the Rule of Law and the public body should be "estopped" from now seeking to recover the funds. The first position is relatively simply and probably represents a conservative view of the orthodox legal position. However, the second position is gaining increasing support in public law. It goes back to the fundamental principle that a person should be able to plan their life conscious of the legal consequences that flow from decisions they make. This principle is seen throughout our law, including the principle against retrospective legislation which affects vested legal rights. In this case, the change in position comes from an administrative decision, not legislation. Citizen A was assured by the Public Body B that the grants scheme was available for their desired purpose. Citizen A relied on that assurance and made certain spending decisions based on it. If Public Body B is now allowed to renege on that assurance and require the repayment of funds, then Citizen A will suffer detriment which they had no reasonable possibility to avoid. Citizen A had a (substantive) legitimate expectation, induced by Public Body B, that grants funding for the website was permissible. Further, there is no sound reason why the administrative U-turn need operate retrospectively; the change of position can apply prospectively, applying to future decisions thereby allowing citizens to make decisions in the light of that position. There is no specific third party prejudice. In the light of the analysis above, I think there is a strong case for arguing that Citizen A should not be required to repay the funds. Alternatively, it is one of those situations where retrospective validating legislation may be appropriate. The legislation does no more than amend the law to ensure that it accords with the expectations that the public body and citizens maintained at the time. In this case, this is a class of retrospective legislation which enhances, not undermines, the Rule of Law. Of course, there is a central factual assumption underscoring this analysis: Citizen A was assured by Public Body B that this grants funding was legitimate, had no reasonable reason to doubt that assurance, and no reasonably available mechanism by which to otherwise confirm that expectation. I'll let others debate whether this was actually the case. PS If you want another 75,000 words on this issue, see my LLM thesis:"Estoppel (Principles?) in Public Law: The Substantive Protection of Legitimate Expectations"

6 August 2006

Parliament, the courts, and the "mutual respect"

Whangamata Marine Society v Attorney General (rule 66 application) The Whangamata Marina resource consent application has been controversial enough in it’s own right,[FN1] but tomorrow the focus turns to a fascinating subplot: a “mutual respect” dispute between the courts and Parliament. The issue arises in the context of access to court records (which, incidentally, the President of the Law Commission last week described as a “dog’s breakfast” [full report]). One of Murray McCully’s researchers (and I understand subsequently McCully himself) sought to obtain copies of the court file in the Whangamata Marina case and was turned down by Wild J – even though the media had been allowed access to the file. Under the present provisions, an applicant must have a “genuine and proper interest” to access the file. The reason for the refusal was the possibility that the material obtained by McCully might be raised in the House. Wild J considered this would offend the constitutional principle that Parliament and the courts should “strive to respect each other’s role in the conduct of public affairs” and that members of Parliament should “refrain from commenting on matter before the Courts under the sub judice rule” (the latter being reinforced by Standing Orders and Speaker’s rulings). Referring to the Nick Smith contempt case as an example, he suggested “prevention is better than cure” and declined access. Intuitively, this decision seems plainly wrong – refusing a political actor access to material relating to a political matter seems to undermine, not enhance, the mutual independence of the courts and Parliament and is going to do nothing but create unnecessary friction between the two bodies. It seems to me that McCully ought to have access and if he misuses the information then it’s either a matter for Parliament (under standing orders) or the courts (if the misuse amounts to contempt). Anyways, the Court of Appeal is hearing McCully’s appeal tomorrow, Monday 7 August 2006 (11am in Courtroom 1 of the High Court). McCully is down to appear in person so it might be an interesting watch! [FN1] I’m not sure I’ve commented on the substantive decision. But that might be because I’m not convinced it’s the great travesty of justice some make it out to be. Fundamentally, the decision ultimately lay with the Minister, following an inquiry and recommendation of the Environment Court. The value judgement he made differed from the Environment Court. That’s no surprise to anyone who understands the Resource Management framework. Even when faced with the same primary facts, two decision-makers are quite capable of reaching ultimately different decisions – largely because of the heavily value-laden nature of decision-making under the RMA. Unlike decision-making of some other courts and tribunals, there’s no (notionally) correct answer! In some respects, this means it might more appropriate for what is an essentially political decision to be made by a political actor rather than a so-called “neutral” tribunal. UPDATE (11/8/06): McCully won! See McCully v Whangamata Marina Society

2 August 2006

Rotorua District Council proposal to ban serial offenders from the CBD

The Rotorua District Council has resolved, I understand, to ban serial offenders from its CBD. The details of the proposal are somewhat sketchy (I am awaiting a LGOIMA request for the Council reports) but it appears the proposal is to delegate to the Police the power to issue trespass notices on their behalf. I’ve been reflecting on the propriety of such an approach. The principal question is whether such an approach is Bill of Rights consistent. The ability for public bodies to issue trespass notices in relation to public land has been addressed, to a certain degree, by the courts. The courts have indicated that any power to issue trespass notices in respect of public places is tempered by the Bill of Rights. That is, the issuing of a trespass notice must not amount to an justified limitation on a person’s freedom of movement protected under section 18(1) (“(1)Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand”) and freedom of peaceful assembly under section 16. The High Court in Police v Beggs [1999] 3 NZLR 615 said:
The statutory right given to the occupier to warn, in circumstances where the act of warning is being performed by a person or body performing a public function, may limit the right of assembly in s 16 of the Bill of Rights. The power or right to warn can be given a meaning consistent with the s 16 right of assembly by application of the standard of reasonableness. Because such an act limits the rights and freedoms contained in the Bill of Rights, such limitation must be reasonable in terms of s 5. The exercise of this statutory power can be resorted to only when reasonably necessary. … What this case involves is determining and applying the proper test to the exercise of the power of a public official … to warn, because the warning limits rights and freedoms contained in the Bill of Rights. ... Our view is that the exercise … of the power under s 3 of the Trespass Act must be reasonable, both in the manner of its exercise and in the prevailing circumstances.

In the local government context, the District Court quashed trespass notices issued to vagrants in Glover Park in Wellington on the grounds that insufficient consideration was given to the Bill of Rights and the notices were not Bill of Rights consistent (Police v Ngeru and Others (02.08.2004, Wellington District Court, CRI 2004-085-2534, Judge Davidson). In short, although a power may exist for local authorities to issue trespass notices in respect of public spaces (or to delegate that power to another body such as the Police), any notice must be Bill of Rights consistent. (Personally, I have significant doubts about whether, in principle, trespass notices ought to be issued in respect of public spaces, particularly those which are genuinely public spaces, not just publicly owned private spaces – but that point needs further examination.) On the question of whether this measure is Bill of Rights consistent, I have been in two minds but ultimately I think the proposal is not consistent with the Bill of Rights.

  • Clearly there is a prima facie infringement of the freedom of movement. (I differ from others who contend the proposal violates the protection against retrospective criminal penalties. See my previous analysis of retrospectivity in the context of taxi drivers and sex crimes.)
  • The infringement must be a reasonable limit on that right within the meaning of section 5 of the Bill of Rights, that is, it must be necessary, suitable and appropriate. In the words of the Court of Appeal in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9:
    • In determining whether an abrogation or limitation of a right or freedom can be justified in terms of s 5, it is desirable first to identify the objective which the legislature was endeavouring to achieve by the provision in question. The importance and significance of that objective must then be assessed. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledgehammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective. Of necessity value judgments will be involved. In this case it is the value to society of freedom of expression, against the value society places on protecting children and young persons from exploitation for sexual purposes, and on protecting society generally, or sections of it, from being exposed to the various kinds of conduct referred to in s 3 of the Act. Ultimately, whether the limitation in issue can or cannot be demonstrably justified in a free and democratic society is a matter of judgment which the Court is obliged to make on behalf of the society which it serves and after considering all the issues which may have a bearing on the individual case, whether they be social, legal, moral, economic, administrative, ethical or otherwise.

    • In this case, there is a clear objective (suppression of criminal offending from a core group) and there is a rational relationship between the objective and the measure (that is, removing repeat offenders from the area in which they have traditionally offended is rationally connected to the objective of reducing that crime committed by that group). However, I think ultimately the measure is disproportionate to the objective. While there is a degree of narrow tailoring of the measure to the objective (more so than in the Wanganui gang patches ban proposal), I think the fundamental nature of the public space in question, ie roads (including footpaths), mean that the negative effect of the measure outweighs its positive benefits. The fundamental right of people to pass and repass on roads has been recognised by the common law and is augmented by the statutory provisions in local government legislation. The ability to use roads and footpaths facilitates so many other basic citizenship rights and activities that people undertake, ie travelling to the dentist, shopping for food, walking to the City Council to exercise civic participation rights etc. In contrast to issuing trespass notices to a discrete, demarcated space like Parliament which is effectively self-contained, trespass notices issued in relation to the network of roading and footpath infrastructure prevents a person from entering spaces which they are not prohibited from entering. The flow-on effect of trespass notices is so much greater than their actual scope. For this reason alone, I think the proposal therefore fails the Bill of Rights consistency test. Trespass notices are just too blunt a tool to address the problem.

    • If, however, the measure was undertaken by a bylaw and focused not on the passing through public spaces, but instead the *loitering* in public spaces by repeat offenders, I think there is then a stronger case for Bill of Rights consistency. I still have an open mind on whether a more tailored solution is permissible.
    • Apart from Bill of Rights consistency, I have a number of additional concerns about this type of regulation:

    • It seems to me that this type of regulation is more appropriately addressed through a Council’s law-making powers, ie through a bylaw. These processes more explicitly provide protection mechanisms to ensure appropriate regulation (such as public participation and a Bill of Rights vet). They also allow greater harmony with the other provisions governing the regulation of roads.
    • The decision appears to have been made without any public participation. If a coercive measure such as this was adopted through a bylaw, such consultation would be required. In any event, I wonder whether a decision such as this triggers the Council’s own policy on significance (proposals which are significant are required to be included in the Council’s long term Council community plan – which ensures public participation). The Council’s own policy requires the Council to consider, amongst other things, the following when assessing whether a proposal is significant and ought to be subject to public consultation:
    • The parties who are likely to be particularly affected by, or interested in, the issue, proposal, decision or matter and the likely impact/consequences of the decision from the perspective of those parties (including if the decision is likely to affect a large number of residents and ratepayers to a moderate or greater extent; or a small number of residents and ratepayers to a large extent);
      I would have thought this proposal triggers the latter threshold. NZ Herald: Rotorua council votes to ban criminals from city centre National Radio: Vote To Ban Repeat Offenders

      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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