8 July 2011

Freedom... from unnecessary legislation?

The Local Government and Environment Select Committee is currently hearing submissions on the Freedom Camping Bill, a Bill which will enable local authorities to pass bylaws to prohibit freedom camping in designated areas and to issue infringement notices to people who breach the prohibition.  Others have criticised Bill for a number of reasons.

But my beef with the Bill is that it is, I think, unnecessary and another instance of ad-hocery creeping into the local government legal framework.  First, local authorities already have an existing power that enables them to pass such bylaws.  Secondly, there is an existing power in the Local Government Act 2002 that allows specific bylaw offences to be designated infringement offences. The claimed mischief that has been advanced to justify the Bill just isn't there.

To explain, local authorities presently have the power to pass bylaws prohibiting freedom camping under the generic bylaw-making power in the LG Act 2002, s 145:
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.
Indeed, many local authorities have already passed such bylaws.

So it's really a problem of enforcement? "[A]ny breaches of local authority camping bylaws ... can only be proceeded against through the courts", they say.  "Pursuing offenders through the courts is not a cost effective response to the problems experienced, and is rarely used by local authorities."

Well, yes and no. Yes, ordinary prosecutions are expensive.  No, because the government can quite easily pass regulations designating those offences as infringement offences:
259 Regulations(1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:
(a) prescribing breaches of bylaws that are infringement offences under this Act:
(b) prescribing infringement fees (not exceeding $1,000) for infringement offences:
(c) prescribing infringement notice forms:
Again, a number of bylaw offences have been designated infringement offences.  See for example Local Government (Infringement Fees for Offences: Wellington Regional Navigation and Safety Bylaws) Regulations 2006. So, no real problem with enforcement either under the existing legal regime, if the government uses the tools presently available to it.

To be fair, the Regulatory Impact Statement for the Bill acknowledges these options.  But it is, in my view, too quick to dismiss the existing legal regime as providing a viable solution.

Option 2 - Use the LGA02 to designate bylaw breaches as infringement offence
19. This option considered making regulations under section 259 of the LGA02 to designate specific bylaw breaches as infringement offences.
20. Section 259 of the LGA02 provides that regulations can be made to designate specific bylaw breaches as infringement offences. Regulations would prescribe the level of infringement fee (not exceeding $1,000), and the form of the prescribed infringement notice. Local authority bylaws would need to meet the legislative requirements.
21. There are three drawbacks to this approach. First, regulations made under section 259 would require ongoing maintenance to allow for the inclusion of new and amended council bylaws. Sections 158 and 159 of the LGA02 require bylaws to be reviewed five years after they are made and then every ten years. The infringement offence would not be available during any time-lag between a new bylaw taking effect and amending the regulation.
22. Second, infringement notices issued under regulations made under section 259 of the LGA02 cannot be issued to a vehicle. Instead, infringement notices must be issued to the offender in person. This will hamper the ability to issue infringement notices where vehicles are not attended and the offenders are not present.
23. Finally, regulations made under section 259 would only apply to local authority land, and not to conservation land. Therefore, this option does not offer national consistency.
Well, let's deal with those "drawbacks".

First, "ongoing maintenance" is hardly a burden.  It involves promulgating a regulation now, and passing further regulations as and when any new bylaws are passed or reviewed. Indeed, Schedule 3 of the Bill lists existing (and future) bylaws in the same way the regulation would. Further, the time-lag problem is overstated.  This only arises every 5 or 10 years, and then can be addressed with some simple forward planning and coordination - or designating future bylaws generically.

Secondly, the RIS fudges the problem about needing to issue an infringement notice to an offender in person.  Actually, the Bill doesn't even enable the infringement notice to be "issued to a vehicle".  The Bill does allow an infringement notice to be issue to the person breaching the prohibition or the registered owner of the vehicle or the person legally entitled to possession of the vehicle.  But, local authority bylaws could provide for the same type of liability, by providing that the owner or person in possession commit bylaw offences in similar circumstances.  And, there's no practical enforcement problems because there is no legal requirement an offender be caught in the act (LG Act 2002, s 245(1)) and need to be personally serve an offender (LG Act 2002, s 245(2)).  (By the way, if even greater flexibility on service of notices is needed, then that might be a useful generic amendment to the LG Act 2002.)

Finally, "national consistency" would be undermined as the regime would not apply to DOC land?  Well, the RIS acknowledges that DOC already has the power to pass similar bylaws (but no infringement offence power).   DOC acknowledges, though, that "most camping on conservation lands is by backcountry users who follow accepted practice and do not create problems." So, what's the problem then?

Hmmm.  All in all, this is a pretty weak claim for a need for immediate legislative action.

Existing legal tools are, in fact, pretty well placed to address the claimed mischief.  There's no need to develop and promulgate an entirely new - and complicated - legal regime. It undermines the attempts to consolidate and harmonise such matters in local government reforms in the early 2000s.

But most of all this type of policy approach is rather odd coming from a government that has proclaimed a crusade on "unneeded rules and laws"...

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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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