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.
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.
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