9 December 2008

A stuck record?

> NZHerald: "Council sets out rules for buskers " > AuckCity: "Performers take to the street with licence to entertain" The NZ Herald reports:
Buskers who repeat their songs too often within an hour on Auckland City streets can be muzzled under a new council policy. From Monday, street performers in the city must obtain an annual licence, which is free if they agree to comply with the council's new code of conduct. The policy acknowledges the important contribution of street performance to the "vitality of our city" and aims to direct "the right activity to the right location at the right time". It says street performers should develop sufficient repertoire for however long they choose to perform - the maximum is one hour of playing time - without repetition. "If a performer continues to repeat items they may be asked to cease performing. Performers must immediately comply with this request." The policy allows licensed performers to operate on city streets - but not parks - at any time if they are quiet acts, such as mime or statue artists. Acts involving musical instruments, amplification or loud voices are restricted to 7am to 9pm in most areas. The time limit is extended to 2am outside Tourism Auckland and the Starmart on the central-city waterfront, and until midnight at Aotea Square and until midnight on Friday and Saturday nights on Karangahape Rd. Noise levels must not disturb customers or staff of nearby businesses, or be greater than the usual background noise when heard from 30m away. Performers are mostly limited to one hour a day at a location, but can then move to another site. The council says the policy sets a fair way to use the most popular sites and directs performers to appropriate locations in the central city, such as four places for pavement art and eight for acts that attract large audiences. "Street performance plays an important role in the vitality of Auckland City and offers entertainers the chance to gain experience and develop a public profile," said the chairman of the council's arts, culture and recreation committee, Greg Moyle. "Clarifying expectations and directing the right activity to the right location, at the right time will encourage and enable a range of street level activity in our city."

The policy of course is a prima facie breach of the freedom of expression in the Bill of Rights, but may be justifiable as a "reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society" under section 5.

I don't have time for an extended analysis - but maybe we could have a straw poll on whether folk think this policy might pass muster under section 5?


Nigel Kearney said...

Yes to the noise-related limits, no to everything else.

The flag burning precedent sets the bar very high and it would just sick to have the police hauling away Kenny the busker while Paul the flag burner is merrily going about his business.

Graeme Edgeler said...

Nigel - the police couldn't haul away - it's a bylaw, and not subject to imprisonment (and therefore arrest).

Anonymous said...

Further, the flag burning behaviour attracts a different level of protection due to its political content (assuming that it is being done as a form of protest, not simply as a random act of destruction). Even here, though, there are limits (as Valarie Morse discovered).

Of more interest, what fate under this bylaw for a busker seeking to engage in protest activity? Mr Brooker on Queen St, say?

Nigel Kearney said...

So how do they enforce it?

A fine will only work if they know the busker's name and address or the busker tells them. Otherwise they could issue a trespass notice.

I'm not sure that political expression does or should have a higher degree of protection than artistic expression.

The council might argue that flag-burning laws restrict content and the bylaw only restricts manner and form. But some aspects of the bylaw appear to go beyond that.

Lyndon said...

A fine will only work if they know the busker's name and address or the busker tells them.

Well, they are supposed to have a licence, which isn't all that novel or unusual, though I'm not the one to comment on the legalities.

Anonymous said...

What happens if someone busks without a license? What powers does the Council have to enforce the bylaw?

Is it consistent with the BORA to require a license?

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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