28 October 2008

Bill-stickering and the Wellington City Council

> LAWS179: "Vote with Eyes Wide Open, Wellington City, and Phantom Billstickers" Following my previous post on this issue, I was contacted by the relevant manager at Wellington City about my post. He suggested the assumption underlying the article and my post was that the Council has banned posters on Council assets (other than those poster bollards managed commercially by Phantom Billstickers). He pointed out that the relevant bylaw only requires prior approval be obtained from the Council before placing the posters (Wellington City Consolidated Bylaw 2008, part 5):
9.5 With the exception of approved hoardings under this clause, 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 approval.

I'm happy for that to be clarified. But, in my view, it still misses the point. First, in this context, requiring prior approval (which may include conditions restricting locations, sizes of posters, recovery of the cost of damage - including pre-paid bonds, duration, etc) is tantamount to banning this important expressive outlet. Compliance with these types of conditions is basically incompatible with the nature of bill-stickering involved, especially given the renegade nature of such campaigns. Secondly, prior approval risks the unprincipled and arbitrary exercise of discretion - especially where, as is the case here, no criteria exists to govern the exercise of such discretion. The folk at Both Eyes Open have told me that Wellington City has taken the position that political postering is only appropriate for the designated hoarding sites - those road-side grass verges where the usual political party hoardings are erected. That is, approval will not be granted to post political posters on utility poles and other assets around the central city (a point confirmed by the Council manager); nor, as the original article reports, are political posters permitted on the official poster bollards. Again, such (content-specific) restrictions effectively amount to, as the Supreme Court of Canada put it, the "denial of access to a historically and politically significant form of expression". Thirdly, to clarify a point made by Idiot/Savant (NoRightTurn: "Dean Knight on WCC's suppression of free speech"), I'm not suggesting the delegation of the regulation function to Phantom Billstickers means the problem escapes the reach of the Bill of Rights. As Idiot/Savant correctly points out, Phantom Billstickers would probably be caught under the "public function" part of the section 3(b) of the Bill of Rights meaning they would be bound to act consistently with it. Alternatively: (a) as an agent of a body exercising a public function (Wellington City) it might be caught; and (b) Wellington City itself could be pursued for its own breaches by delegating the function (either in an unfettered way or in a way that requires apoliticality of posters) to Phantom Billstickers. On the latter point, the folk at Both Eyes Open have told me that the prohibition of political billstickers on official bollards is a position of the City itself; that is, the Council has told Phatom Billstickers not to allow them. But I need to note that I haven't had that point confirmed either way by the City itself - again, one of the problems arising from the criteria for postering not being explicitly set. Of course, these issues aren't easy. A lot is at stake. There are conflicting rights and government imperatives that must be accommodated or balanced. As time permits, I'm exploring some of the North American literature which has explored some of these issues and I'll try and report back. That said, my intuition and initial analysis still suggests that Wellington City is completely off the mark on this one. Time perhaps for the Mayor to take a lead on this one, and for her to direct the Council administration stop restricting this important part of the democracy. One might direct her to the Council's own "Sense of Place" planning document which contains the following core statement:

Wellington’s essence is its integration . . . • Hills-harbour-buildings-greenery in balance • Work-play-living in proximity • Nationhood-mana-creativity in synergy • Symbols-character-energy-places in concert • All types of people in there together ...and the key to protecting this is to keep it all accessible.

It is also specifically requires the Council to "work to ensure that all new growth preserves and enhances" the following, amongst others, characteristic:

5. The role as centre of the nation – a successful host of the government and Treaty of Waitangi negotiation and management

In my view, Wellington City is failing to live up to its commitment by suppressing this core activity of the political and democratic process.

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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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