21 December 2008

Santa, a drag queen, and the Kapiti Coast District Council

> DomPost: "KKK man shows up to council in wig and dress"
The DomPost reports:
Just six months after upsetting Kapiti councillors by dressing in a Ku Klux Klan outfit, community board member Dale Evans has struck again. He appeared at a Kapiti Coast District Council meeting in a purple wig and women's clothing, with seven Santas in tow, and was ejected from the chamber yesterday by police prompting one councillor to compare the council to a three-ring circus. ... Ms Rowan opened the meeting by saying that, if anyone was dressed disrespectfully, they should leave. Mr Evans and his Santas refused to budge and the mayor adjourned the meeting. Some councillors left the chamber and police were called. ... Council chief executive Pat Dougherty said the ejection was justified. "Asking police to eject a group dressed in Santa suits and women's clothes was totally justified following the earlier Ku Klux Klan incident from the same person. They were asked to leave under standing orders.

No! Ejecting people for what they are wearing is not justified.

Section 47 of the Local Government Official Information and Meetings Act 1987 gives the public a right to attend any public meeting of a local authority. The (sole) power of a local authority to eject a member of the public from a public meeting is found in section 50:

50 Maintenance of order (1) The person presiding at any meeting of any local authority may, if that person believes, on reasonable grounds, that the behaviour of any member of the public attending that meeting is likely to prejudice or to continue to prejudice the orderly conduct of that meeting if that member of the public is permitted to remain in that meeting, require that member of the public to leave the meeting. (2) If any member of the public who is required, pursuant to subsection (1) of this section, to leave a meeting of a local authority— (a) Refuses or fails to leave the meeting; or (b) Having left the meeting, attempts to re-enter the meeting without the permission of the person presiding at the meeting,— any constable, or any officer or employee of the local authority, may, at the request of the person presiding at the meeting, remove or, as the case may require, exclude that member of the public from the meeting.

The section poses an objective test: There must be reasonable grounds for believing that a person's behaviour is likely to prejudice the orderly conduct of the meeting.

It's clear therefore, I'm sure, that the clothes someone wears is not sufficient to trigger ejection. There must be something more in terms of behaviour that threatens the orderly conduct of the meeting. (There's nothing in reports which suggest any other disruptive behaviour.)

If there's any doubt, the protections in the Bill of Rights would further assist, in particular, the freedom of expression in section 14. To the extent that the clothes being worn amount to expressive conduct (entirely credible in this context), then the test in section 50 would need to be read down to allow such expression, as far as possible without unreasonably undermining any government imperative underlying section 50.

In short, the government imperative is enabling elected members to conduct their meeting. What people wear does not affect that. Shouting does - and people can be ejected for that. But dressing in drag or a Santa suit - or "disrespectfully" - does not.

The guy ejected sounds like a total pillock. But that's no excuse for acting unlawfully and undemocratically.

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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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