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.


Graeme Edgeler said...

I'll start with point 2, and may come back to the rest later.

For me, the simplest way to approach this differs from your analysis (although we effectively reach the same conclusion). On the face of it, s 2(2) of the Trespass Act, coupled with s 316(1) of LGA74, vests the power to issue trespass notices over the Rotorua CBD with the Rotorua District Council.

Powers can vest in territorial authorities in a number of different ways, and the mere fact that a power in one act or another is narrowly drawn need not require a power in another act to be similarly construed if it is open to broader interpretation.

I see the question as more about whether any trespass notice is effective rather than whether it is valid.

A trespass is criminal (in breach of s 3 or s 4 of the Trespass Act) if it involves a civil trespass in violation of a warning to leave or stay off. Even if someone is lawfully warned to stay off a place, he or she will not be committing a criminal trespass if not also committing a civil trespass. For me, this is where (subject to something I'll mention later) notions of rights of access to public roads come into play.

That is to say, if a common law right of public access to the highways exists, there would be no criminal trespass not because there was no valid s 4 warning, but because there was no civil trespass.

An analogy.

Let's assume I am leasing the flat I am in, and that I have a written agreement with a flatmate that I will give her four week's notice if I want to kick her out. She does something that so incences me that I tell her she's out, and fearing that she won't leave, I hand her a written warning under s 5 warning her to stay off the property for the next two years.

The flatmate stays in the flat, coming and going as she always did, for the next two weeks, then moves herself, and all her stuff, out. Six weeks later I come home and find her lounging in front of the house in a deck chair.

Now, what offences (if any) against the Trespass Act has this person committed?

The two weeks she continued to live in the house were not in breach - although she was warned off, she had a legal right under our written agreement to be there and was thus not committing a civil trespass and was thus not committing a criminal trespass.

I would argue, however, absent facts not present in this scenario, that the occasion eight weeks after the written warning, would constitute a breach of s 4 of the Trespass Act. The former flatmate has no right, express or implied, to lounge in a deck chair on my front lawn (and thus commits a civil trespass) and has been warned to stay off (which takes the trespass from a mere civil one to a criminal one).

I interpolate that you may disagree with this conclusion.

Now, the argument could be made that because, at the time the warning was given, the flatmate had a basically unfettered right of access to the property, that that warning was invalid - you can't warn someone to stay off somewhere they have a right to be. However, I'd prefer the interpretation that rather than being invalid, the warning was ineffective for those four weeks - just that any time the flatmate was at my property in the four weeks after the notice she was not committing a civil trespass, and that this is the reason she was not committing a criminal trespass.

The argument I suppose I am making is that a trespass notice has the effect of saying 'next time you commit a civil trespass on land X that trespass will also be criminal'.

Analogously, the RDC can warn Todd Smith, uber-criminal, to stay out of the Rotorua CBD, but because his actions in walking to the cinema will be actions taken in accordance with a common law right of public access to the highways, he will not be committing a civil trespass, and thus, even though he was warned to stay out, there can be no criminal trespass (in the same way that I'd argue my hypothetical flatmate, exercising a right in accordance with our written agreement committed no civil, and hence no criminal, trespass).

A warning under s 5, rather than being invalid because it puports to interfere with an existing right, is valid, but ineffective - as any instance where it would infringe that pre-existing right involves no civil trespass to turn into a criminal one.

Now for the caveat I said I'd mention later - a warning under s 4 can only be given where:
1) a (civil) trespass is being or has been committed; or
2) where the occupier has reasonable cause to believe that a (civil) trespass will be committed.
Given the analysis above, and your analysis, I would question whether reasonable grounds could exist.

Essentially, I think that the RDC does have the power to issue warnings under s 4 of the Trespass Act in respect of the Rotorua CBD, but that that power (although it exists) cannot be effectively exercised.

Graeme Edgeler said...

Now the latter part of point 3.

Discussion of whether a trespass notice can be tailored in such circumstances naturally only arises if one has concluded that among the powers of a District Council is the power to revoke permission to access the roads (and that it is ever possible for that power to be exercised in accordance with the Bill of Rights). Obviously, if a common law right of access to the highways exists such that access *never* amounts to a civil trespass then this is all really pointless.

Following from my argument that a trespass notice has the effect of saying 'next time you commit a civil trespass on land X that trespass will also be criminal', my discussion will be premised on the basis that we travel on roads owned by a district council on the basis of implied consent - that we can travel on the roads until they tell us we can't. This is of course an entirely unsatisfactory premise. However, what matters is not the form the right of access takes, but that under some circumstances it is revocable. My analysis will hopefully be such that an alternative formulation of the right of access could be adopted without invalidating it (using implied consent should just simplify it a bit).

The first point to make is that the interpretation one should place on s 4 of the Trespass Act is that which least infringes the rights affirmed in the Bill of Rights. Of course this doesn't get us very far - s 4 seems pretty clear:

"... every person commits an offence against this Act who, being a person who has been warned under this section to stay off any place, wilfully trespasses on that place within 2 years after the giving of the warning."

Again, however, we have that word 'trespasses' in the act. If the actions of a person who has received a warning do not amount to a civil trespass they cannot be a criminal one. For its trespass notices to have effect, the RDC must not only give those notices, but must also revoke implied consent to visit the roads in the CBD (such revocation likely express or implied in the notice itself).

It is obvious that a person against whom a trespass notice has been proferred in repect of somewhere can lawfully enter that place with express permission - with express permission there is no civil trespass, and can be no criminal trespass.

If the hypothetical flatmate with whom I had a diagreement in my first comment left something behind that I wished her to remove, she could legally enter my flat with my permission to do so. Of course, any action taken outside that express consent (say she enters my room, when there was no need to do so to collect the remaining items) might constitute a civil trespass, and therefore a criminal one as well.

This is surely also the case where a revocation of implied consent is only in respect of certain things. The s 4 notice continues to have the effect of saying 'any time in the next two years that you commit a civil trespass the law will also treat it as criminal' but because actions taken in accordance with the remaining implied consent do not constitute civil trespasses they do not constitute criminal ones.

The RDC is in effect proposing to tell repeat offenders "we warn you that a civil trespass committed in the CBD will also be criminal if committed in the next two years, and we revoke the implied consent you have to travel on the roads in the CBD for the next three months, except where that travel is for the purposes of a doctors visit, or to meet your lawyer etc.". The repeat offender has an implied consent to visit the CBD for purposes of doctors or lawyers visits etc (so won't commit a civil trespass), and following the expiration of the three months, the person against whom the trespass notice was proferred will again have implied consent to travel the roads in the CBD for any purpose, and will not be committing a civil trespass thereafter and thus is not committing a criminal one.

The warning is valid for the two years the act envisages, it just doesn't turn behaviour that does not constitute a civil trespass into a criminal trespass - because it can't.

Rich said...

Strikes me that the crux of your difference is this:
Graeme believes that the council owns and controls it's roads in the same way that Westfield owns shopping centres - it allows people to access it under an "implied right" that can be witdrawn selectively.

Dean on the other believes that there is a common law right of access to roads, and that this cannot be withdrawn except by a narrow range of statutes.

It'll be interesting to see what the courts decide - assuming that anyone has the wherewithal to challenge the council.

Graeme Edgeler said...

And now point 1.

I just re-iterate the point I've made elsewhere (No Right Turn?) that as I understand the proposal, it is to devolve to police a power the Council believes it has. If an instance of the council's exercise of that power is BORA-consistent, then the police exercise of that power as a result of that delegation in those same circumstances will also be BORA-consistent.

I don't see how the delegation (itself) of a power such as that in s 4 of the Trespass Act can breach BORA. Simply, that delegation implies with it a reponsibility when exercising the power delegated to exercise it consistently with BORA.

I therefore don't believe the proposal itself breaches BORA (as all it does is create a ciscumstance in which a statutory power may be exercised consistently with BORA) the real BORA question is whether the exercise of that power in any particular circumstance is BORA-consistent.

That is, does the exercise by the police of this delegated authority to exclude Graeme Edgeler from the Rotorua CBD constitute a reasonable limitation on his rights under BORA; and

Does the exercise by the police of this delegated authority to exclude Dean Knight from the Rotorua CBD constitute a reasonable limitation on his rights under BORA.


And while similar consideration will apply in all cases, ultimately each case will rest on its own facts - and just maybe there is someone out there for whom the issuing of a trespass notice preventing his or her entering the Rotorua CBD is demonstrably justifiable.

While thinking about this point, I came up with a question:

Am I right that on either my analysis, or yours, no court when convicting a person for offences in the Rotorua CBD could (sucessfully) order that person to stay off the CBD under s 4(3) of the Trespass Act?

Graeme Edgeler said...

rich - not quite. My argument in response to Dean's point 3 is premised on that point only because you don't get to such an argument unless such a common law right does not exist.

As I see it the difference between Dean and my views is that:

a) Dean believes the common law right of access to the highways prevents the council issuing trespass notices; and
b) I believe the council is permitted to issue trespass notices, but that the common law right of access to the highways means those notices have little legal effect.

[i.e. not very much difference at all]

The differences you draw out only arise if we are both wrong about the existence of a common law right of access.

Idiot/Savant said...

Just as a little note, we should stop calling it "the Rotorua District Council's proposal". Documents released under the OIA show very clearly that the proposal came from the local police, and they convinced RDC to adopt it.

As for the legalities, I'm hoping to receive the solicitor-general's advice on the Kaitaia District Trespass Scheme, which was a far narrower proposal which did not involve public streets, but which the SG thought was not consistent with the BORA. Hopefully I'll have that (or a refusal) in a week or two.

Graeme Edgeler said...

I await with interest your successful OIA request about Kaitaia, however I suspect the legalities turn on this quote from your post on the matter:

"the conditions required by s 4(2) of the Trespass Act were not met in all cases"

The Kaitaia scheme will have been unlawful because not all the occupiers who collectively sought to issue through police trespass notices against repeat criminals would have had the reasonable grounds to believe each individual criminal was likely to trespass in their shops, that are required under s 4(2).

Idiot/Savant said...

Graeme: actually, looking at it, the problem was the Police Act and sheer abuse of power; the Trespass Act was a subsidiary issue, and they didn't even get into the BORA except to touch upon possible Double Jeopardy.

(Given the way the scheme worked, there would be significant Privacy Act implications as well - and trying to get around them would have gone straight back to the abuse of power)

Graeme Edgeler said...

Privacy Act implications? If so, only just - the Privacy Act didn't enter into force until July 1993. However, the photograph (which I suspect is where you are saying the Privacy Act implications arise) was taken for the purpose of providing that photograph to the businesses involved, and the person whose photograph was taken would (I hope) have been advised of this at the time - given this, while abuse of power may be involved, I don't see obvious Privacy Act implications.

I didn't expect BORA would have much to do with it. 1993 was too early for police to take it seriously if other illegality could be found (this is often still the case - if a court can determine a matter with reference only to the common law it usually will - saying something like (with thanks to Judge Spear in Brown v AG):

"I do not propose to lengthen this already lengthy decision by determining this particular claim. I do not consider that it is necessary to do so. The harm suffered by the Plaintiff can be and should be appropriately addressed either by the successful claim for breach of privacy or as a breach of confidence.")

Idiot/Savant said...

Graeme: well, the obvious Privacy Act implication is around consent. While the police had gone to the effort of getting businesses to stump for an extra camera so they could claim that the collection of information for the trespass scheme was completely seperate to that of the police booking process, there is simply no way that in the context it was expected to take place - a police interview, with the threat of arrest and the possible laying of charges - that "consent" for the information to be collected could be regarded as voluntary. Unless you're an Australian High Court judge, I suppose.

There's plenty of other problems there as well - not least the question of whether the information is needed for a lawful function of the police (it not being one of their functions ordinarily to compile enemies lists for local businesspeople) - but as you point out, none of it is really necessary. The scheme failed simply on the grounds of being an abuse of power, and there was no real need to add to the reasons.

David said...


I agree that a District Council cannot prohibit a person from passing along a public road as proposed under the Trespass Act. It follows that they cannot authorize the Police to do so on their behalf. My reasoning is closer to Graeme’s, although I must say that I don’t follow the distinction he draws between invalidity and ineffectiveness – “occupier” and “trespass” are both elements of the offence. On either argument, I would simply say that there is no offense. My thoughts are below.

1. The roads are vested in fee simple in the Council: section 316(1) of the Local Government Act 1974.

2. A person in whom property is vested in fee simple generally has a legal right to occupy that property. It may be argued that a road is a different beast, and that the Council has no legal right to occupy a road. Instead, as Dean suggests, the right of occupation is a right held by the public as a whole, and the Council is not an “occupier” in terms of the Trespass Act 1980 and therefore has no authority to issue a trespass notice.

3. However, this results in the conclusion that there can be no “occupier” of any road under the Trespass Act. If a group of people decides to set up camp in the middle of a street, no one could remove them for trespassing. This cannot be right. See Wiltshire County Council v. Frazer (1984) 47 P&CR 69 (CA), holding that a Council acting as an English Highway Authority had a fee simple in a highway, that the powers granted to it under the Highways Act were additional to its common law powers, and that it was therefore entitled to possession of the highway and to bring an action against trespassers.

4. Although the Council may be an occupier, it can only issue notices to people who are trespassing. A person who is passing along a public road is not trespassing. The Council’s own proposal explains trespassing as “setting foot on the land of another, without that other’s permission, express or implied, unless there is some other legal justification for doing so.” A person’s right to use the public streets of Rotorua does not depend on the implied permission of the Rotorua District Council. There is an independent legal justification – the common law right of the general public to pass and repass.

5. The best discussion of this common law right is in Director of Public Prosecutions v. Jones [1999] 2 AC 240 (HL). Lord Slynn quotes from Clerk & Lindsell on Torts, 17th ed (1995), para 17-41: “The right of the public in respect of a highway is limited to the use of it for the purpose of passing and repassing and for such other reasonable purposes as it is usual to use the highway; if a member of the public uses it for any other purpose than that of passing and repassing he will be a trespasser” (263). A person does not trespass simply by passing and repassing. Further, the purpose of his or her passing is entirely irrelevant.

6. There is no statutory abrogation of the public right of passage (except in specific circumstances such as road closures, that do not apply here), and a Bill of Rights Act analysis is not reached.

7. A more interesting question is whether a trespass notice prohibiting loitering, nuisance, protesting or occupation (such as sleeping on the side of the road) is valid. The House of Lords considered the question of protesting in 1999 in Jones, and held 3:2 that the public has the right not merely to pass and repass on a public road, but also has the right of public assembly so long as that assembly does not unreasonably obstruct the road.

8. Lord Slynn’s narrow approach limits the public’s right to passing, repassing and ancilliary activities (see above). Lord Irvine, by way of contrast, adopted an expansive approach: “The question to which this appeal gives rise is whether the law today should recognise that the public highway is a public place, on which all manner of reasonable activities may go on. For the reasons I set out below in my judgment it should. Provided these activities are reasonable, do not involve the commission of a public or private nuisance, and do not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute a trespass. Subject to these qualifications, therefore, there would be a public right of peaceful assembly on the public highway” (254-55).

9. According to Lord Irvine, there is a public right to conduct “ordinary and usual activities as making a sketch, taking a photograph, handing out leaflets, collecting money for charity, singing carols, playing in a Salvation Army band, children playing a game on the pavement, having a picnic, or reading a book” (255). By way of contrast, there would appear to be no right for people to park their “vehicles or caravans or tents or the like” on the side of a road: Frazer at 70. Perhaps the test is not so much one of reasonableness, but of a particular judge’s social mores.

10. In any event, the Trespass Act is simply the wrong vehicle to solve the Council’s problem.

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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