27 March 2008

NineToNoon: Pōwhiri and Human Rights

A little belatedly, below is a link to my discussion of some of the issues associated with Josie Bullock's (partly successful) discrimination claim against the Department of Corrections after she was asked not to sit in the from row at a departmental poroporoakī: > NineToNoon: "Law with Dean Knight" Also, below is a link to a post of my speaking notes on this issue at the LSAANZ conference last year: > LAWS179: "Pōwhiri and Human Rights: A Contest of Values?" Now that the decision is out, I'm presently working on merging the two into a full article.

18 March 2008

Minister of Health, Hawkes Bay DHB and the report on conflicts of interest

> LAWS179: "Minister of Health, Hawkes Bay DHB and 'serious dissatisfaction'" Much of the discussion surrounding the report released yesterday on conflicts of interest in the Hawkes Bay DHB seems to be suggesting that the report vindicates the decision of the Minister to dismiss the Board. I'm not convinced. It seems likely that the issues raised in the report could, theoretically, form a foundation for the Minister's determination of "serious dissatisfaction". However, given these issues (largely) arose before the election of the Board that was dismissed, could the Minister have had regard to these issues? There's an interpretative question about whether dissatification with the Board means the actual Board members dismissed, or whether it extends to the enduring corporate entity of the Board. As an aside, it's clear he didn't base his dismissal on the report itself - because he said he had not seen it at the time; although the generic issue of the management of conflict of interests was put in issue by the Auditor-General's report. There remains questions about whether he was entitled, as a matter of law, to the other matters he based his decision on.

17 March 2008

NZ Centre for Public Law public lecture: Kevin Brady, "Challenges facing the Auditor-General"

> NZ Centre for Public Law: Kevin Brady, "Challenges facing the Auditor-General" The Auditor-General is giving a public lecture tomorrow on challenges facing his office: 12:30pm, Tuesday 18 March 2008 Lecture Theatre 3, Government Buildings, Pipitea Campus, 15 Lambton Quay, Wellington

6 March 2008

Boy-racers, road closures, and "public disorder"

> ThePress: "Mayor's car ban aims to foil boy racers" I continue to have concerns about the use of executive power by Mayor Parker to temporarily close roads, in order to address problems arising from boy-racers. The use of the power continues to be unorthodox and potentially unlawful. I've previously discussed some of the issues that arise: > LAWS179: "Boy-racers and executive road closures" Of course, central to this determination is the assessment or judgement about whether "public disorder ... is anticipated". Obviously this involves an on-the-ground factual assessment. It may be the possibility of conflict this weekend would satisfy that criterion - I don't have a sense of the history of conflict involved with the one-off event. However, I'm more concerned about suggestions that such a ban could be used on a routine basis to address the purported "annoyance" caused by boy-racers. In my view, it is unlikely that these concerns rise to the level of public disorder required to close a road.

2 March 2008

Falun Gong and their signs

> DomPost: "Gardens ban angers Falun Gong " > DomPost: "Defiant Falun Gong says gardens banner will stay" > SST: "The gospel truth: Falun Gong"

The treatment of the Falun Gong by the Wellington City Council is proving to be interesting. At this stage, it's difficult to work out whether the Falun Gong is being unfairly targeted or not. Or whether there is something more sinister behind the enforcement of apparently neutral rules and regulations.

I'm not yet in a position to address the exclusion of the Falun Gong from various parades. The Council's involvement in these activities is complex, with the political neutrality requirement arising from sponsorship contracts, rather than being an explicit regulatory requirement. And, the question of whether a political neutrality requirement is defensible is complex too; there's some overseas caselaw on freedom of expression / movement / association and parades and I want to review this in a little more depth before forming a view on the propriety of the Council's approach.

But I have some initial thoughts about the exclusion of the Falun Gong from the Botanic Gardens. First, the media seem to have got the wrong end of the stick about the nature of the regulation. Secondly, the Council seem to be relying on a regulation which might not cover the Falun Gong's actions.

Reports are that the Falun Gong have been refused permission to because of a rule prohibiting political activities in the Gardens. Not so. There's no such rule.

The Council is relying on a general rule that applies to all public places: parks, footpaths, other public spaces. And, on its face, it's (expressive) content neutral. It doesn't specify what type of expression is permissible or not - all such expression is prohibited unless permission is obtained.

The regulation relied on is a clause in the Public Places part of the Wellington City Council Consolidated Bylaw that prohibits the erection of hoardings or signs on hoardings:

17.4 Hoardings, Posters and Notices in Public Places 17.4.1 The Council may supply hoardings in public places, or approve sites where hoardings can be erected in public places. 17.4.2 The approval of hoarding sites under clause 17.4.1 may be subject to conditions, including: a. placement b. fees c. dates a hoarding may be erected d. approval of the hoarding design. 17.4.3 Hoardings erected without approval must be removed within 1 hour of being instructed to do so, or as otherwise specified by the Council. 17.4.4 Posters or notices displayed on hoardings shall be removed or covered immediately after the event has taken place. 17.4.5 With the exception of approved hoardings under clause 17.4.1, no one shall affix or place a poster or notice to any Council ornament, statue, structure, building, or facilities in a public place without the Council’s prior permission. 17.4.6 Responsibility for compliance with this part of the bylaw lies with the person who displayed the poster or notice, or the organiser, promoter or person in charge of the advertised good, service or event or, in the case of an election, the candidate or a delegate of that candidate.

(I emailed the manager of the Botanic Gardens, David Sole, to find out what provision the Council was relying on and he confirmed it was this one.)

A couple of definitions are worth noting:

- "hoarding" means "a board, including any frame or other supporting device, for displaying posters or notices announcing future events or for advertising or election purposes, but excludes sandwich boards" (clause 17.1);

- "public place" means "a place that, at any material time, is open to or is being used by the public, whether free or on payment of a charge, and whether any owner or occupier of the place is lawfully entitled to exclude or eject any person from that place; and includes any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle carrying or available to carry passengers for reward" (clause 1.4.1) (as an aside, this seems unduly broad as a general proposition).

So the Botanic Gardens qualifies as a public place. But are the Falun Gong engaged in a prohited activity? Well, I think it depends. (And my colleague, Steven Price at http://www.medialawjournal.co.nz/, generally agrees, after we spent some time last week working through the definitions.)

"Hoarding" has a much narrower definition than a sign or banner; one that connotes a struture being erected, to which a signs or banners will be affixed. The Falun Gong does not appear to want to erect something like this, although arguably any poles the Falun Going might use to hold up their signs might qualify.

Notably, the posting of a poster or notice is only unlawful in certain circumstances, namely, when it's affixed or posted to any "Council ornament, statue, structure, building, or facilities in a public place" and done without prior permission. But, again, those circumstances do not seem to apply.

On my reading of the clause there's nothing stopping the Falun Going displaying a sign at the Gardens or another other public place, either by holding the signs themselves or laying them on the ground. It only becomes problematic when they start affixing them to structures.

(For completeness, as the Botanic Gardens are a local purpose reserve, the following offence in section 94 of the Reserves Act 1977 might apply:

(1) Every person commits an offence against this Act who, without being authorised (the proof of which shall be on the person charged) by the Minister or the Commissioner or the administering body, as the case may require,— ... (k) Erects any building, sign, hoarding, or apparatus on any reserve; ...

Again, though, the use of the term "erects" seems to connote a physical sttruture, rather than merely displaying a banner.)

Putting that to one side though, there's the question of the Council discretion to grant or refuse permission anyways. The manager of the Gardens confirmed that the Council is not relying on any other policy or document - it's simply exercising its discretion on a case-by-case basis (email from David Sole):

It is discretionary and I have outlined how the decision is made to ... the Falun Gong Approval for 3rd parties is rare and is usually associated with single events The Botanic Garden is for rest and passive recreation. It is regarded as a retreat/respite from the city which is clearly spelt out in the management plan. There are plenty of opportunities outside the garden for the display of posters and banners We do not discourage FG's activities as long as they remain passive

That by itself might not be objectionable. A desire not to interfere with use and enjoyment of the reserve would seem appropriate, as long this objective is pursued even-handedly (factually we don't know if other groups might have been granted permission; it might be problematic if they have). Like the question of the parades, though, I am still reflecting on whether this apparently neutral objective survives scrutiny when freedom of expression is added to the mix.

More thoughts on this in due course.

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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