15 August 2008

Boobs on Bikes, bylaws, and the Bill of Rights

> NZHerald: "Boobs on Bikes man indignant at injunction threat" > 3News: "Boobs on Bikes organiser defiant 'parade' will go ahead"

The Auckland City Council has said it's heading to Court to try and seek an injunction against Steve Crow's Boobs on Bikes parade, scheduled for next week.

Interesting legal issue. And I think the City's on the wrong side of the law on this one.

Some background. A few weeks ago, Auckland City reviewed and updated its Public Places Bylaw (or rather Part 20 of Auckland City Council Bylaws).

Amongst other things, the new bylaw prohibits events or street trading without a licence:

"Licences and permits 20.6.1 Except as provided in clause 20.6.2 below, or where an exemption has been granted by an authorised officer, no person shall in, on or over a public place: a. undertake street trading without a street trading licence issued by the council; b. undertake any street performance without a street performance licence issued by the council; c. undertake any event without an event permit issued by the council."

To clarify the reach of the prohibition, we have to look at the following definitions (cl 20.1.1): Public Place means:

"... any land or structure owned, managed, maintained or controlled by the council that is intended for use by the public (e.g. roads, footpaths and public squares, grass verges, berms, public gardens, reserves and parks, beaches, wharves, breakwaters, ramps and pontoons, foreshores and dunes, access ways, recreational grounds and sports fields ) but does not include any area, building or structure used or intended primarily for business or commercial purposes (e.g. council offices, libraries, zoo, car park buildings)"

Event means:

"... any organised temporary activity including an organised gathering, parade, protest, wedding, private function (which is independent of premises), festival, filmshoot, concert, celebration, multi-venue sports event of significant scale, fun run, marathon, duathlon or triathlon. ..."

Street Performance means:

"... the provision of entertainment in public places and includes playing an instrument, singing, dancing, juggling, mime, puppetry, performance art, conjuring, acrobatics, recitation, undertaking artworks on or in a public place and performing other acts of theatrical or visual forms. Street Performance does not include any activity which is within or part of an Event or Street Trading."

Street Trading means:

"... the commercial use of any public place under the control of council. It includes the selling, displaying or promotion of any goods and services whatsoever, whether for commercial or not-for-profit purposes, in, on, or over a public place. Street trading includes the display of any message as part of a trading activity. Street trading does not mean an activity that consists entirely of the display or deployment of signs as defined in the Signs Bylaw. ..."

So pretty broad. Seems to cover most things. Boobs on Bikes would be caught as an "event" (it's an "organised temporary activity", a definitely a "parade" or an "organised gathering"). It might also be a "street performance". And could even fall under the "street trading" definition (it promotes good and services – the Erotica Expo). Of course, roads are specifically mentioned in the definition of "public place".

(There are also some other restrictions in cl 20.2.3 which might be triggered, such as use of a speaker, display of signs, distribution of material.) The upshot is that, in terms of the bylaw, Crow needs a licence or permit from Auckland City for the event. He hasn't got one. I'm not sure if it's because Crow didn't ask for one. Or whether the Council turned him down. That's by-the-bye. As an aside, the application procedure and permitting power is set out in cl 20.6.4:

"20.6.4 The decision to grant or refuse a street trading licence, street performance licence or events permit, together with any conditions on the licence or permit, may be made in accordance with any relevant guidelines approved by the council or specified under this bylaw from time to time. A licence or permit may be declined where the proposal does not meet the relevant guidelines or where an authorised officer considers that appropriate standards of convenience, safety or visual amenity would not be met by granting the licence."

I've asked for a copy of the relevant guidelines from the Council but haven't got them yet. I do know, though, that when the Council passed the bylaw, they also promulgated at least one specific guideline – apparently directed at Boobs on Bikes itself (Auckland City Council Minutes, 24.07.08):

"C. That a guideline be issued to authorise officers, pursuant to clause 20.6.4 of the Public Places bylaw 2008, that if an event will be or is likely to be offensive, the decision regarding the issuing of an events permit be referred to full council for consideration."

Other than that process threshold, there doesn't appear to be anything obvious colouring the circumstances in which a permit will be granted (the bylaw simply enumerates some occasions when a permit may be declined). Back to the legality question though. If the event goes ahead without a licence then there are a couple of ways it can be enforced. First, it's an offence under section 239 of the Local Government Act 2002 to breach a bylaw. The punishment is a maximum fine of $20,000. (That last point is quite important. As the offence is not subject to imprisonment, there's no power of arrest for breaching the bylaw.) Secondly, there's the ability of the District Court to issue an injunction restraining someone from breaching the bylaw:

"s 162 Injunctions restraining commission of offences and breaches of bylaws (1) A District Court may, on the application of a local authority, grant an injunction restraining a person from committing a breach of a bylaw or an offence against this Act. (2) An injunction may be granted under subsection (1)— (a) despite anything in any other enactment: (b) whether or not proceedings in relation to the breach or offence have been commenced: (c) if a person is convicted of the breach or offence,— (i) in substitution for, or in addition to, any other penalty; or (ii) in subsequent proceedings."

This power was reframed slightly in the 2002 amendments (previously it only applied to situations where someone was committing a "continuing breach" of a bylaw). So we're not really sure about how wide the power is because there hasn't been any significant case law about it. It too is pretty broad. Importantly, there does seem to be the power for the Council to apply to injunct someone in anticipation of a breach (unlike the previous power). I suspect the Court might draw an analogy with some of the other injunction principles that apply elsewhere in private law and the like. It will be interesting to see how the Court responds to the application. There's also the question of enforcing any injunction – that's a little complicated (but, contrary to what 3 News said last night, strictly speaking it's not a mere civil matter – we're talking about the enforcement of regulatory controls by a public authority). But. There's a catch. Whenever the Council (or Police) seeks to enforce the bylaw, it casts the light on the bylaw itself. Although a bylaw is presumed to be valid unless and until it is challenged, a person can query the lawfulness of the bylaw as a defence to any prosecution or application for an injunction. They don't need to go through the usual route of challenging the bylaw in the High Court by judicial review or under the Bylaws Act 1908. That's a bit of a simplification (see my articles on this point: "Power to Make Bylaws" and "Ameliorating the Collateral Damage Caused by Collateral Attack in Administrative Law") but that will do for now. The question of the validity of bylaws is quite complicated, but in the present case the bylaw needs to be lawful, certain, reasonable, and not repugnant to other laws, such as fundamental principles of the common law or the Bill of Rights (in fact, section 155(3) of the Local Government Act 2002 expressly states that bylaws must be Bill of Rights-consistent). There's some overlap between those aspects, as is often the case with administrative law principles. Let's run through them. First, the bylaw needs to be authorised by law, that is, it needs to fall within the scope of at least one of the empowering provisions in legislation. This shouldn't be a problem given the broad nature of the empowering provision in section 145 of the Local Government Act 2002:

"s 145 General bylaw-making power for territorial authorities A territorial authority may make bylaws for its district for 1 or more of the following purposes: (a) protecting the public from nuisance: (b) protecting, promoting, and maintaining public health and safety: (c) minimising the potential for offensive behaviour in public places."

(There are some other specific empowering provisions in section 146 of the Local Government Act 2002, along with some (quite narrow) provisions relating to roads in section 684 of the Local Government Act 1974 which are still in force.) Secondly, there's the question of whether the bylaw is certain. The prohibition is clear enough. But there might be an argument that the licensing provision reserves too much power to the Council – that is, it should have been clearer about the circumstances in which a permit would be acceptable. Deferring the heart of the restriction to the judgement of officials in this way violates the Rule of Law. Thirdly, there's the question of reasonableness and repugnance. These kind of overlap because they come back to the same concern. Does the bylaw unduly prevent people either the road to assemble, travel or engage in expressive activity? If the bylaw unduly restricts citizens' rights, without producing a corresponding benefit, the bylaw may be seen as being unreasonable under the common law. If the bylaw unreasonably restricts the freedoms of movement, assembly, and expression contained in sections 14, 16, and 18, then it will be unlawful (the assessment of whether a bylaw might unreasonably restrict these rights is quite complicated – but essentially looks at whether the objective of the bylaw is important and the limitation is proportionate to that objective). If the bylaw is inconsistent with (or repugnant to) a fundamental common law right or principle – such as the right to pass and re-pass on roads or the right to protest – then it will be invalid, unless that inconsistency is expressly mandated by legislation. None of these rights is absolute – they may succumb to legitimate, specifically tailored governmental imperatives. But, in this area, the courts have generally been ruthless to ensure these fundamental rights are protected. As an example, a few years ago the House of Lords considered the right to assemble and protest on roads, after group of people were prosecuted after they tried to conduct a peaceful, non-obstructive assembly on the grass verge of a public highway beside Stonehenge (Director of Public Prosecutions v Jones [1999] 2 All ER 257). Lord Irvine of Lairg:

"I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass; within these qualifications there is a public right of peaceful assembly on the highway. Since the law confers this public right, I deprecate any attempt artificially to restrict its scope. It must be for the magistrates in every case to decide whether the user of the highway under consideration is both reasonable in the sense defined and not inconsistent with the primary right of the public to pass and repass. In particular, there can be no principled basis for limiting the scope of the right by reference to the subjective intentions of the persons assembling. Once the right to assemble within the limitations I have defined is accepted, it is self-evident that it cannot be excluded by an intention to exercise it. Provided an assembly is reasonable and non-obstructive, taking into account its size, duration and the nature of the highway on which it takes place, it is irrelevant whether it is premeditated or spontaneous; what matters is its objective nature. To draw a distinction on the basis of anterior intention is in substance to reintroduce an incidentality requirement. For the reasons I have given, that requirement, properly applied, would make unlawful commonplace activities which are well accepted. Equally, to stipulate in the abstract any maximum size or duration for a lawful assembly would be an unwarranted restriction on the right defined. These judgments are ever ones of fact and degree for the court of trial."

Recently, one our High Court judges adopted this passage, quashing the convictions of a group of people who were protesting the removal of a fountain in a Christchurch city mall – which was vested as a road in the Council (Abbott v Police (27.05.08, Christchurch High Court, CRI 2008-409-000003). Fogerty J said:

"I am not bound by the decision of the House of Lords. But I choose to follow the decision. One of the reasons I have adopted the majority decision in Jones is it seems to be reinforced by ss 14, 16 and 18 New Zealand Bill of Rights Act 1990. I might note that the dissents in Jones are subtle. As I read the dissenting speeches, they were not saying that there was no right of assembly on roads but rather they were not prepared to lift it to the level of the same importance as the ancient right of passage. In that respect I agree that the ancient right of passing and repassing on the highway is the most critical right and always has been. It is the right which is central to our constitutional history. It is no exaggeration to say that the British are freedom loving people and the love of that freedom was brought to New Zealand when it was settled as a British colony. The right of the meanest citizen to travel on the highway has always been regarded by the law as a key protection for every individual to live the life he or she wants, to move to whichever property he or she wants to go, and meet with whomever he or she wants to meet with. It also follows, however widely one defines the right, that a common law Court will always look for very clear language indeed from Parliament before finding that right is qualified in any way."

Similar sentiments about the importance of the right to protest in public places are also evident in the Supreme Court's decision in Brooker v Police [2007] 3 NZLR 91. As an example, Blanchard J said:

"[60] As discussed above, the fact that s 4(1)(a) is concerned with behaviour in or within view of a public place necessarily influences the meaning of "disorderly". In this instance, as will often be the case, the public place was a street. Members of the public are ordinarily entitled to use a public street for any purpose consistent with the passage of vehicles and persons. Streets are also customary places for people to gather and to exchange their opinions, sometimes in the form of protest action. That will be a more common activity in some street locations than in others. The exercise of the s 14 right in the form of a protest is not confined to non-residential streets. However, what has to be borne by residents in an exclusively or predominantly residential area will be less than in areas where there is little or no residential character. This is because the common law has long recognised that men and women are entitled to feel secure in their homes, to enjoy residential tranquillity – an element of the right to privacy. They are justifiably entitled not to be subjected there to undue disturbance, anxiety or coercion. The State's interest in protecting the well-being, tranquillity, and privacy of the home has been described by the United States Supreme Court as "certainly of the highest order in a free and civilized society". It may be an important consideration in assessing whether the conduct of a defendant has disturbed public order and is therefore in breach of the statutory prohibition on disorderly behaviour. [61] In considering whether behaviour in the nature of a protest is disorderly in terms of s 4(1)(a), a court should weigh the manner but not the content of the expression. If the concern is that what was said and done was offensive to those affected by the protest in the sense and to the degree described in para [55] above, the charge should be one of offensive behaviour. At the extreme, other provisions of the criminal law could be invoked, for example where there are expressions of racial or ethnic hatred."

There's voluminous other authority speaking to the importance of the rights of assembly and protest in public places. Suffice to say, it's a really important fundamental right jealously guarded by the courts. Back to the Auckland City bylaw though. The Council was alert to some of these issues. As required under the Local Government Act 2002, it prepared a report on the Bill of Rights implications of the proposed bylaw. I'll quote the analysis in full:

"New Zealand Bill of Rights Act 1990 The proposed bylaw is not considered inconsistent with the New Zealand Bill of Rights (NZBOR) Act 1990. Any limits being imposed by this bylaw (stated below) are considered by council to be reasonable and therefore justified under section 5 of the NZBOR Act 1990: the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 14 of the NZBOR Act states that: Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form Section 16 of the NZBOR Act states that: Everyone has the right to freedom of peaceful assembly. The following clauses may have implications for the rights contained in sections 14 and 16 of the NZBOR Act: 20.3.1 Except with the permission of an authorised officer, or a licence from council, a person shall not, in, on, or over any public place: q. place or use loud speakers or other devices amplifying and emitting sound, including for advertising any trade, business, entertainment or any other purpose; r. use or permit the use of a vehicle for the purpose of operating a loud speaker or an amplifier, or any similar device except for the purpose of campaigning for a election under to the Electoral Act 1993, or for a local authority election under the Local Electoral Act 1998; s. use any advertising signs other than in accordance with the Signs Bylaw or the conditions of a street trading licence; u. distribute any printed or written material advertising any product, service or entertainment; w. place or affix any poster or advertising material on any surface or structure; x. distribute or sell or offer for donation any document, product, material or service. Clauses 20.6 and 20.7, which deal with events in public places (including gatherings, parades and protests), and in particular requires them to be the subject of an event permit issued by the Council, may also have some implications for the rights to freedom of peaceful assembly and expression. The council does not consider that the proposed bylaw is inconsistent with freedom of expression or freedom of peaceful assembly, or alternatively it considers that any limits in the bylaw are justified under section 5 of the NZBOR Act. The clauses do not prohibit the activities but rather impose reasonable conditions to ensure that those freedoms can be exercised in an orderly manner, and in a way that protects the public from nuisance, promotes and maintains public health and safety and minimises the potential for offensive behaviour in public places. Section 18(1) of the NZBOR Act states that: Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand. Clauses 20.4 and 20.6 may have implications for the rights contained in section 18(1) of the New Zealand Bill of Rights Act 1991: 20.4 An authorised officer may: a. Subject to any statutory provisions: i. restrict or close entry to all or any portion of a reserve during such times as are considered necessary to prevent damage to, ensure public safety in or around, or allow maintenance of the reserve; ii. temporarily set aside the whole or a part of a reserve for the exclusive use of particular groups or for particular types of recreational activities. The council may charge for the right to have exclusive use of any reserve or part of a reserve; Although clause 20.4 allows for the restriction of access by the public to reserves or parts of reserves for the exclusive use of particular groups or for particular types of recreational activities, it is considered reasonable, e.g. sporting events or cultural festivals held by organisers may be subject to entry fees. 20.6.1 Except as provided in clause 20.6.2 below, or where an exemption has been granted by an authorised officer, no person shall in, on or over a public place: a. undertake street trading without a street trading licence issued by the council; b. undertake any street performance without a street performance licence issued by the council; c. undertake any event without an event permit issued by the council. The restrictions in clause 20.6.1 are to ensure that proper provision is made for the organisation of these activities to avoid conflict with other activities that may take place at the same time or to avoid disruption of the free flow traffic and do not constitute a general restriction on these activities. The implications of these provisions of the proposed Public Places bylaw are in accordance with the "reasonable limits" justification in section 5 of the NZBOR Act 1990 and are therefore considered acceptable."

I think you can form your own views on the adequacy of that assessment. But it's pretty perfunctory and assertive and lacks the analysis we have seen elsewhere in Bill of Rights reporting at central government. Regrettably, that's not an original complaint about local government. So is the bylaw Bill of Rights-consistent, reasonable, or consistent with fundament common law rights? This is where it gets interesting and we need to make some judgements. I am very confident in saying that, to the extent that the bylaw requires citizens to seek prior approval from a state body for a protest in a public place, it is patently inconsistent with the Bill of Rights and other fundamental common law rights, and is therefore unreasonable and invalid. There was, rightly, a public outcry a few years ago when Wellington City attempted to do this; it backed down. Also, it's the very thing that many folk are pointing the stick at the Chinese government at the moment with the Olympics in Beijing. The requirement of prior approval is outrageous, particularly in the light of the restriction of protests and so forth. It gets a little more complicated when one deals with other expressive activities. The reality is that we grade the nature of the expression and place differing degrees of importance on different types of speech. Political protest at the top. Speech lacking in intrinsic value at the bottom, arguably things like pornography etc. Commercial-related speech somewhere in the middle. That's a wee bit controversial but probably accurate. In this case, we might see the full range of expression. Principally, the parade is related to a commercial activity. But it's also got a pornographic titillation element – something slightly gratuitous. And, given the previous controversy and dealings, it's also probably capable of being regarded as a protest or similar political assembly. The short point is that on its face the bylaw suppresses all these types of expression without prior approval and is clearly unlawful. However, there's an open question of whether more tailored restrictions, for example, the prohibition (only) of offensive behaviour in street parades. I suspect a tightly circumscribed restriction, focusing on this behaviour would be defensible. Or one that more directly expressed the circumstances in which parades or protests on the streets might be permitted, that is, significant disruption to traffic and pedestrian safety etc. But that's not the path the Council has gone down and I think they'll pay the price for it. Assuming the bylaw is tainted and invalid at least in some degree, there's also a question of whether Crow himself might be successful. This area of law is pretty discretionary and the courts have a degree of latitude about how they can fashion a remedy to address any illegality. That might mean that parts of the bylaw might be struck down but the part covering offensive behaviour might survive – meaning Crow wins the battle but not the war. For the betting folk around here, I'm not confident that these issues will necessarily be canvassed and resolved in this way in the first instance. Some of these issues are quite hard and it sometimes takes an appeal or two before we see the principles being addressed in a more robust way. That's all for now. I'll try and backfill some of this analysis with some more references shortly. There are also some other issues I haven't been able to comment on. For example, why the Police appear to consider that Boobs on Bikes is not "offensive behaviour" given the nudity involved. I understand there's a distinction drawn between nudity associated with expressive activities such as protests etc and nudity for nudity's sake. That might mean that walking down Queen Street topless because it's sunny day might be unlawful. But walking down Queen Street topless, wiggling one's boobs against genetic modification, might be okay. It might seem like a ludicrous distinction – but is probably one that is grounded in sound principle.


Anonymous said...

Fascinating analysis. Thanks. I look forward to your continuing analysis once the court case is over with - I think the injunction is being heard on Tuesday.


Anonymous said...

Thank you for your trenchant analysis. Here's another angle that might interest you:

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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