18 December 2007

Boy-racers and bylaws again

> ThePress: "Police sought ban for boy-racer hot spots" I've previously commented on Christchurch City's moves to close roads because of boy-racer concerns, largely raising jurisdictional concerns about whether it's legal possible to do so: >LAWS179: "Boy-racers and bylaws banning cars on roads" Putting those concerns aside for one moment, it's encouraging to see the City is genuinely grappling with Bill of Rights implications, namely whether a ban might unreasonably affect people's freedom of movement:
Council staff are compiling a report for councillors on ways to tackle boy racers in McLeans Island Road, but a car ban could prove difficult as it may violate the Bill of Rights Act. ... Banning cars is a problem on a main route like McLeans Island Road as it is more likely to violate the right to freedom of movement enshrined in the act than a ban on a minor road. Council solicitor David Rolls said a ban would be considered, but it had to be looked at carefully to avoid a legal challenge. "You have to consider if it is a reasonable intrusion on the freedom of movement, and the more well-used the road is, the greater the intrusion on freedom of movement," he said. "You have to weigh that against other competing factors and weigh up if the intrusion is warranted, given the mischief you are attempting to remove." Rolls would write a legal opinion on ways to deal with the McLeans Island Road problem for a February council meeting. The Manukau City Council has banned cars on 160 streets, including about five main roads. Manukau traffic engineer Bruce Conaghan said the ban could be imposed on main roads without violating the Bill of Rights Act. "We are not being restrictive on those that are carrying out something that is legal. The Christchurch council is in a good position to include those roads in their bylaw," he said.

It's always important to remember that the Bill of Rights does not provide a blanket restriction on regulation which affects people's freedom of movement. Limits are permissible if they are demonstrably justified in a free and democratic society, generally treated as insisting that the limits are proportionate to their objective.

The comments from the City's solicitor seem to be heading in the right direction and indicate they are testing carefully regulation by applying this proportionality calculus. In contrast, the comments of the Manukau City engineer demonstrate a complete lack of appreciation of the Bill of Rights.

I look forward to seeing how this issue plays out when it comes to Council in February next year.


Anonymous said...

Hi ther I was just wandering if you can answer this question for please: How much of a problem do you think boy racers are?

Please get back to me a.s.a.p!

Anonymous said...

What do you think of the ways that the police are dealing with boy racers?

Anonymous said...

Can you suggest other ways that the community can deal with this percieved 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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