20 August 2008

Boobs on Bikes: the Police's view

The Police have set out their position on the issue: > http://www.scoop.co.nz/stories/AK0808/S00191.htm

Boobs on Bikes parade: Police Role Spelt Out Tuesday, 19 August 2008, 5:01 pm Press Release: New Zealand Police In order to clarify the Auckland City Police position on the issue of the forthcoming Boobs on Bikes parade, it's important that the following facts are understood. • The Auckland City Council by-laws require parades to obtain a permit - from the Council. • The Boobs on Bikes parade was refused a parade permit by the Auckland City Council • The organisers of the parade have stated they would hold the parade regardless • The Auckland City Council, on the grounds the parade does not have a permit, has sought to prevent the parade by obtaining an injunction. This was refused by the District Court. • If the parade takes place, the organisers - prima facie - breach the by-law. It is then up to the Auckland City Council to decide what, if any, enforcement action it will take to enforce its own by-law. • There is no power of arrest for breaching the by-law and any Court action would have to be taken through the issuing of minor offence notices • The enforcement of Council by-laws regarding parades is not a matter for the Police • The display of naked breasts may - or may not - amount to offensive behaviour under the Summary Offences Act, depending on the circumstances at the time. On the circumstances that have previously prevailed, the same display of bare breasts in the same manner will not amount to offensive behaviour under case law set down by the Courts. Neither does it amount to indecent exposure or an indecent act under the Crimes Act • The Police part in any parade is to ensure that there is no danger to the safety of participants or observers that is inherent when motor vehicles and pedestrians share the same roadway • The Police have, in the past, assisted with the traffic management of many parades and marches that have not received Council permits but which have, nevertheless, gone ahead. • Again, the Police role has been directed at safety rather than any breach of the City Council by-law. To avoid congestion, Auckland City Police advise motorists to avoid Queen St and Downtown Auckland tomorrow [Weds August 20] between 12.30pm and 2.30pm. ENDS

A couple of thoughts and comments:

- It's interesting to note the Police disclaim any obligation to enforce this bylaw ("The enforcement of Council by-laws regarding parades is not a matter for the Police") but are more than happy to enforce liquor ban bylaws and others dealing with things dealing with vagrants and parking etc.

- The Police are incorrect that a bylaw breach can / would be dealt with under the minor offence procedure. And the underlying offence cannot be deal with under the minor offence provision in the Summary Proceedings Act 1957 does not apply because maximum penalty for breaching a bylaw is $20,000 - exceeding the $500 minor offence maximum. Not can it be dealt with as an infringement offence (no relevant offences are prescibed yet).

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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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