Rotorua District Council proposal to ban serial offenders from the CBD

The Rotorua District Council has resolved, I understand, to ban serial offenders from its CBD. The details of the proposal are somewhat sketchy (I am awaiting a LGOIMA request for the Council reports) but it appears the proposal is to delegate to the Police the power to issue trespass notices on their behalf. I’ve been reflecting on the propriety of such an approach. The principal question is whether such an approach is Bill of Rights consistent. The ability for public bodies to issue trespass notices in relation to public land has been addressed, to a certain degree, by the courts. The courts have indicated that any power to issue trespass notices in respect of public places is tempered by the Bill of Rights. That is, the issuing of a trespass notice must not amount to an justified limitation on a person’s freedom of movement protected under section 18(1) (“(1)Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand”) and freedom of peaceful assembly under section 16. The High Court in Police v Beggs [1999] 3 NZLR 615 said:

The statutory right given to the occupier to warn, in circumstances where the act of warning is being performed by a person or body performing a public function, may limit the right of assembly in s 16 of the Bill of Rights. The power or right to warn can be given a meaning consistent with the s 16 right of assembly by application of the standard of reasonableness. Because such an act limits the rights and freedoms contained in the Bill of Rights, such limitation must be reasonable in terms of s 5. The exercise of this statutory power can be resorted to only when reasonably necessary. … What this case involves is determining and applying the proper test to the exercise of the power of a public official … to warn, because the warning limits rights and freedoms contained in the Bill of Rights. ... Our view is that the exercise … of the power under s 3 of the Trespass Act must be reasonable, both in the manner of its exercise and in the prevailing circumstances.

In the local government context, the District Court quashed trespass notices issued to vagrants in Glover Park in Wellington on the grounds that insufficient consideration was given to the Bill of Rights and the notices were not Bill of Rights consistent (Police v Ngeru and Others (02.08.2004, Wellington District Court, CRI 2004-085-2534, Judge Davidson). In short, although a power may exist for local authorities to issue trespass notices in respect of public spaces (or to delegate that power to another body such as the Police), any notice must be Bill of Rights consistent. (Personally, I have significant doubts about whether, in principle, trespass notices ought to be issued in respect of public spaces, particularly those which are genuinely public spaces, not just publicly owned private spaces – but that point needs further examination.) On the question of whether this measure is Bill of Rights consistent, I have been in two minds but ultimately I think the proposal is not consistent with the Bill of Rights.

Clearly there is a prima facie infringement of the freedom of movement. (I differ from others who contend the proposal violates the protection against retrospective criminal penalties. See my previous analysis of retrospectivity in the context of taxi drivers and sex crimes.)

The infringement must be a reasonable limit on that right within the meaning of section 5 of the Bill of Rights, that is, it must be necessary, suitable and appropriate. In the words of the Court of Appeal in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9:

In determining whether an abrogation or limitation of a right or freedom can be justified in terms of s 5, it is desirable first to identify the objective which the legislature was endeavouring to achieve by the provision in question. The importance and significance of that objective must then be assessed. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledgehammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective. Of necessity value judgments will be involved. In this case it is the value to society of freedom of expression, against the value society places on protecting children and young persons from exploitation for sexual purposes, and on protecting society generally, or sections of it, from being exposed to the various kinds of conduct referred to in s 3 of the Act. Ultimately, whether the limitation in issue can or cannot be demonstrably justified in a free and democratic society is a matter of judgment which the Court is obliged to make on behalf of the society which it serves and after considering all the issues which may have a bearing on the individual case, whether they be social, legal, moral, economic, administrative, ethical or otherwise.

In this case, there is a clear objective (suppression of criminal offending from a core group) and there is a rational relationship between the objective and the measure (that is, removing repeat offenders from the area in which they have traditionally offended is rationally connected to the objective of reducing that crime committed by that group). However, I think ultimately the measure is disproportionate to the objective. While there is a degree of narrow tailoring of the measure to the objective (more so than in the Wanganui gang patches ban proposal), I think the fundamental nature of the public space in question, ie roads (including footpaths), mean that the negative effect of the measure outweighs its positive benefits. The fundamental right of people to pass and repass on roads has been recognised by the common law and is augmented by the statutory provisions in local government legislation. The ability to use roads and footpaths facilitates so many other basic citizenship rights and activities that people undertake, ie travelling to the dentist, shopping for food, walking to the City Council to exercise civic participation rights etc. In contrast to issuing trespass notices to a discrete, demarcated space like Parliament which is effectively self-contained, trespass notices issued in relation to the network of roading and footpath infrastructure prevents a person from entering spaces which they are not prohibited from entering. The flow-on effect of trespass notices is so much greater than their actual scope. For this reason alone, I think the proposal therefore fails the Bill of Rights consistency test. Trespass notices are just too blunt a tool to address the problem.

If, however, the measure was undertaken by a bylaw and focused not on the passing through public spaces, but instead the *loitering* in public spaces by repeat offenders, I think there is then a stronger case for Bill of Rights consistency. I still have an open mind on whether a more tailored solution is permissible.

Apart from Bill of Rights consistency, I have a number of additional concerns about this type of regulation:

It seems to me that this type of regulation is more appropriately addressed through a Council’s law-making powers, ie through a bylaw. These processes more explicitly provide protection mechanisms to ensure appropriate regulation (such as public participation and a Bill of Rights vet). They also allow greater harmony with the other provisions governing the regulation of roads.

The decision appears to have been made without any public participation. If a coercive measure such as this was adopted through a bylaw, such consultation would be required. In any event, I wonder whether a decision such as this triggers the Council’s own policy on significance (proposals which are significant are required to be included in the Council’s long term Council community plan – which ensures public participation). The Council’s own policy requires the Council to consider, amongst other things, the following when assessing whether a proposal is significant and ought to be subject to public consultation:

The parties who are likely to be particularly affected by, or interested in, the issue, proposal, decision or matter and the likely impact/consequences of the decision from the perspective of those parties (including if the decision is likely to affect a large number of residents and ratepayers to a moderate or greater extent; or a small number of residents and ratepayers to a large extent);

I would have thought this proposal triggers the latter threshold. NZ Herald: Rotorua council votes to ban criminals from city centre National Radio: Vote To Ban Repeat Offenders

Telecom leak: no charges

I'm somewhat astounded by this release. Police: No criminal offending in messenger's actions

4:06pm 30 June 2006 Police today announced that criminal proceedings will not be advanced in relation to the disclosure of a confidential cabinet document by Mr Michael Ryan - a messenger in the Department of Prime Minister and Cabinet. "The circumstances surrounding the disclosure of the cabinet document do not amount to criminal offending," a police spokesman said. Police are not commenting further on this matter. ENDS

I have previously noted some possible charges: "Leaks - some possible offences". And the more I've heard about the facts, the more it looks like an open and shut case for a charge under s105A, either as a complete offence or an attempt. I've made an OIA request today for more information from the Police about why.

Guantanamo Bay and enemy combatants

Link to the Supreme Court's decision below: Handan v Rumsfeld (Unfortunately, no time today to analyse - but it looks, from the headnote, to be a sound and robust decision.)

RMA and the national grid

I get slightly grumpy when I see the Resource Management Act being blamed for problems with our national infrastructure. The RMA framework makes adequate provision for such proposals to be expedited in appropriate cases. Although decision-making is devolved to local authorities, the Minister for the Environment retains the power to intervene in proposals of national significance. Indeed, the portfolio of Ministerial tools were recently enhanced in by the 2005 Amendment Act. The Minister’s residual powers are set out in ss140-150AA of the RMA and deal with “proposals of national significance”. Section 141B(2) sets out (non-exclusive) factors for assessing whether a proposal is of national significance:

In deciding whether a matter is or is part of a proposal of national significance, the Minister may have regard to any relevant factor, including whether the matter— (a) has aroused widespread public concern or interest regarding its actual or likely effect on the environment, including the global environment; or (b) involves or is likely to involve significant use of natural and physical resources; or (c) affects or is likely to affect any structure, feature, place, or area of national significance; or (d) affects or is likely to affect more than one region or district; or (e) affects or is likely to affect or is relevant to New Zealand's international obligations to the global environment; or (f) involves or is likely to involve technology, processes, or methods which are new to New Zealand and which may affect the environment; or (g) results or is likely to result in or contribute to significant or irreversible changes to the environment, including the global environment; or (h) is or is likely to be significant in terms of section 8 (Treaty of Waitangi).

(It must be remembered that under the RMA the “environment” include people and communities, including “social, economic, aesthetic and cultural conditions” affecting people.) There’s no doubt in my mind that proposals relating to the national grid would qualify as proposals of national significance. For such proposals, the Minister has various intervention powers: - the power to “call-in” the application (s141A(4)(a)) - the power to make submissions on behalf of the Crown (ie a whole of government submission) (s141A(4)(b)) - the power to appoint a “project coordinator” to advise the local authority (s141A(4)(c)) - in proposals spanning a number of local authorities, the power to direct a joint hearing (s141A(4)(d)) - the power to appoint an additional hearings commissioner to the local authority’s panel considering the proposal (s141A(4)(e)) The “call-in” power takes away the responsibility for deciding the matter from the local authority and either: - referring it to a board of inquiry (a expert panel including an Environment Court judge), or - referring it directly to the Environment Court. (Before the 2005 amendments, referral to a board of inquiry was the only prescribed intervention power – which, by itself, was a rather blunt instrument.) These powers can be exercised on the Minister’s own motion (s141A(1)(b)) or after receiving a request form the applicant or local authority concerned (s141(1)(a)). Previously, this power has only been exercised once (in 1995 in relation to an Air Discharge Permit for the Taranaki Combined Cycle Power Station). However, the legislative tools are available to address matters of national significance. Ultimately, though, whether they are utilised will depend on the attitude of the Minister to expediting such matters – but there does not appear to have been suggestions that any requests to do so have been declined. See also: MfE Factsheet: Improving national leadership UPDATE: MfE now have an expanded commentary on the Minister's power to intervene in proposals of national significance. See MfE: Ministerial intervention on proposals of national significance under the Resource Management Act

Leaks - some possible offences

Due to teaching commitments, I'm not in a position to post a more detailed analysis but there are a couple of offences which are relevant: - Section 105A of the Crimes Act contains the following offence:

s105A. Corrupt use of official information— Every official is liable to imprisonment for a term not exceeding 7 years who, whether within New Zealand or elsewhere, corruptly uses or discloses any information, acquired by him in his official capacity, to obtain, directly or indirectly, an advantage or a pecuniary gain for himself or any other person.

In this context, "corruptly" basically means a deliberate act knowing the act is not authorised and is not for a lawful purpose. There are some issues about whether, factually, some advantage accrued, what qualifies as an advantage (in principle, I see no reason why the "advantage" can't include "political" advantage?), and if no advantage accrued, whether the person can be convicted of attempting to commit the offence (again, in principle, I see no reason why not).

- There is also the complementary offence under s105B (but restricted to official information which is personal information):

s105B. Use or disclosure of personal information disclosed in breach of section 105A— (1) Every person is liable to imprisonment for a term not exceeding 7 years who,— (a) Having received personal information (being information that comes into that person's possession as a result of the commission of an offence against section 105A of this Act); and (b) Knowing that the information has been disclosed in contravention of that section, —uses or discloses that information to obtain, directly or indirectly, an advantage or pecuniary gain for that person or any other person.

Both offences require the Attorney-General’s consent for any prosecution.

There is a relatively good discussion of these offences in R v Leolahi (2000) 18 CRNZ 505.

- There is also another official information offence under the Summary Offences Act, but it is narrower and does not appear to be engaged in this case:

s20A.Unauthorised disclosure of certain official information— (1) Every person commits an offence and is liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding $2,000 who knowingly communicates to any other person any official information as defined in section 78A(2) of the Crimes Act 1961 (not being official information that is publicly available) or delivers to any other person any object as defined in section 78A(2) of the Crimes Act 1961 knowing that he does not have proper authority to effect the communication or delivery and that the communication of that information or the delivery of that object is likely— (a) To endanger the safety of any person: (b) To prejudice the maintenance of confidential sources of information in relation to the prevention, investigation, or detection of offences; or (c) To prejudice the effectiveness of operational plans for the prevention, investigation, or detection of offences or the maintenance of public order, either generally or in a particular case; or (d) To prejudice the safeguarding of life or property in a disaster or emergency; or (e) To prejudice the safe custody of offenders or of persons charged with offences; or (f) To damage seriously the economy of New Zealand by disclosing prematurely decisions to change or continue Government economic or financial policies relating to— (i) Exchange rates or the control of overseas exchange transactions: (ii) The regulation of banking or credit: (iii) Taxation: (iv) The stability, control, and adjustment of prices of goods and services, rents, and other costs, and rates of wages, salaries, and other incomes: (v) The borrowing of money by the Government of New Zealand: (vi) The entering into of overseas trade agreements.