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.
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.