Greenhorn v Speaker of the House of Representatives

[2023] NZHC 2865

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-14

[2023] NZHC 2865

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

BETWEEN

LINDA GREENHORN

Applicant

AND

THE SPEAKER OF THE HOUSE OF REPRESENTATIVES

Respondent

Hearing:

21 September 2023

Counsel:

Applicant in person

S L Gwynn and S V McKechnie for Respondent

Judgment:

12 October 2023

JUDGMENT OF RADICH J

Introduction

[1]    Between 8 February and 2 March 2022, a large group of people occupied the grounds of Parliament and surrounding areas. They did so in  order  to  protest against (primarily) the public health measures the government had put in place in relation to the COVID-19 pandemic. Mrs Greenhorn, the applicant, was one of those people.

[2]    Some of the people at the protest, including Mrs Greenhorn, were issued with trespass notices by the Speaker of the House of Representatives (the Speaker). Although the notice issued to her was withdrawn in March 2023, Mrs Greenhorn seeks, through this judicial review proceeding, a declaration relating to its lawfulness.

GREENHORN v THE SPEAKER OF THE HOUSE OF REPRESENTATIVES [2023] NZHC 2865 [12 October 2023]

She seeks, in addition, an apology from the Speaker for having issued it in the first place and payment of certain expenses incurred in bringing the proceeding.

Factual background

[3]    Approximately 100 people camped overnight at Parliament on the first night of the protest and, over the ensuing weeks, the number grew to over a thousand.

[4]    On 10 February 2022, the Police broadcast messages through loudhailers warning the protesters that Parliament grounds were closed and that they were required to leave the grounds. Soon afterwards on that day, Mrs Greenhorn and others were arrested and charged with wilful trespass and were detained in custody. She was released from custody on 14 February 2022. She then returned to the parliamentary precinct to continue her involvement in the protest. The Police removed protesters from the area on 2 March 2022.

[5]    On 22 March 2022, the Police provided the Chief Executive of the Parliamentary Service with a list of the people who had been arrested for trespass on Parliament grounds during the protest. Mrs Greenhorn’s name was on the list.

[6]    On 30 March 2022, the Speaker decided to issue a trespass notice to each of the people on the list, and to others, under s 4 of the Trespass Act 1980. On 21 April 2022, the Speaker issued Mrs Greenhorn with a trespass notice under that provision. The notice warned Mrs Greenhorn that she would be committing an offence if she wilfully entered the parliamentary precinct within two years of the date on which she received the notice.1 It was said that the Parliamentary Service intended to review the notice after a year and that it may withdraw the notice if it was no longer considered necessary to retain it.

[7]    Mrs Greenhorn tried unsuccessfully to have the trespass notice withdrawn several times over the balance of the year. On 30 March 2023, the Parliamentary Service, having reviewed the trespass notice that had been issued to Mrs Greenhorn, withdrew it.

1      Under s 4 of the Trespass Act 1980, a person commits an offence who, having received a trespass notice, wilfully trespasses on the place within two years.

The positions of the parties

Mrs Greenhorn

[8]    Mrs Greenhorn brought this proceeding on 8 December 2022. At that time, the trespass notice that had been issued to her remained in force. In the statement of claim, she sought for the trespass notice to be withdrawn, an apology from the Speaker for having issued it and for her costs in bringing the application to be reimbursed.

[9]    As Mrs Greenhorn said during the hearing, she came to Wellington to attend the protest in order to stand up for the rights of her children; to do what she could to make a better future for them. She stayed for the duration of the protest. It was a significant ordeal for her involving, as it did, her arrest and imprisonment for four days on a charge of wilful trespass. While she was released from custody on 14 February 2022, the charges against her (and others) remained in place and were not withdrawn until 31 October 2022. They were withdrawn primarily on the basis that she had already spent four days in custody. As Mrs Greenhorn said, she came to Wellington for answers, found herself arrested for – as she saw it – the exercise of her fundamental rights, and was detained in circumstances that I accept were traumatic for her.

[10]   There are a number of details in the arresting officer’s statement with which Mrs Greenhorn takes issue. She mentions these points by way of background but focuses upon the issue of the trespass notice – something she is deeply concerned about.

[11]   She submits that the Speaker issued the trespass notice seven weeks after she had left the protest, that she did not at any time pose a risk to staff or to the grounds of Parliament, that the Security Manager at Parliament acted unfairly, failed to keep her safe and failed, following her request, to provide her with video footage that had been taken of her arrest. She says that there is no available evidence that she received a warning to leave the parliamentary precinct, that she was not aware of, or told about, the circumstances that led to her receiving the notice and that not all protest attendees were issued with a trespass notice.

[12]   She phoned and emailed the House of Representatives about the notice. As she said during the hearing, she just wanted to talk to someone about it. She could not understand the basis upon which she had received it. That remains the case.

[13]   Mrs Greenhorn feels very strongly about the need for an apology to be given to her. She sees the Speaker’s actions in issuing the notice as being inappropriate. She says that she is owed an apology for the ways in which she has been treated, for her arrest and imprisonment and for having been issued with the trespass notice while having been denied a proper explanation for it. She has observed that a Google search for her name leads to an article in the New Zealand Herald about the protest and her involvement.

[14]   Mrs Greenhorn sees the issue of the trespass notice as being unlawful in terms of the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act), the Human Rights Act 1993 and ss 3 and 4 of the Trespass Act. She says that at the very least it needed to be withdrawn much earlier than it was on 30 March 2023.

[15]   She  refers  to  orders  made  by  consent  in  proceedings  brought  by  the   Rt Hon Winston Peters which, among other things, declared the trespass notice issued to Mr Peters during the protests at Parliament to have been an unjustified limitation of his rights.2 She considered that her claim should be handled consistently with that of Mr Peters.

[16]   The costs that Mrs Greenhorn seeks relate just to the expenses she incurred in filing and serving this proceeding. She travelled to Wellington in order to do so and incurred costs of $1,178.83 – for filing fees, flights, accommodation, car parking and incidental expenses.

The respondent

[17]   The respondent says, first, that the trespass notice was issued lawfully and in accordance with the Trespass Act. Although Parliament grounds is a public space, it is said that members of the public are permitted to protest there but in accordance with

2      Peters v The Speaker of the House of Representatives [2022] NZHC 2718.

the Speaker’s Rules.3 The Speaker’s Rules include a range of restrictions including using pedestrian ways so as to avoid damage to lawns and flowers, not mounting the main steps, directing sound amplification away from the buildings, restricting times during which sound equipment can be used, not erecting tents or structures and limiting protests and demonstrations to daylight hours.

[18]   The respondent says that the Speaker, as occupier of Parliament grounds for the purposes of the Trespass Act, was authorised to issue  the  trespass  notice  to Mrs Greenhorn on the basis that she had been arrested and detained by the Police for wilful trespass, even although charges against her ultimately were not pursued. It was said that the trespass notice was issued within a reasonable time after the trespass occurred given, amongst other things, the date on which the protest ended, the size and scale of the protest, its unprecedented nature and the number of notices that were issued.

[19]   Secondly, the respondent says that the decision to issue the trespass notice was reasonable and was not exercised in a manner that was inconsistent with fundamental rights and freedoms.

[20]   The respondent says it is recognised it is unlikely that it would be reasonable to issue a s 4 trespass notice for Parliament grounds in anything other than an exceptional case.4 He  considers  this  to  be  such  a  case.  It  is  said  that,  while Mrs Greenhorn’s civil rights and freedoms were engaged in this case, they were engaged to a limited extent only in the sense that, while she was unable to be present physically on Parliament grounds, there are alternative mechanisms that would allow her to exercise her civil rights and freedoms.5 Moreover, it is said that, in terms of s 5 of the Bill of Rights Act, Mrs Greenhorn’s rights and freedoms were subject only to such reasonable limits – through the trespass notice – as can be demonstrably justified in a free and democratic society.

3      “Standard Conditions for Protests and Demonstrations on Parliament Grounds”, in place since 1999 and available on Parliament’s website.

4      Referring to the Trespass Guide that is in place for Parliamentary Security Officers.

5      Reference was made to the availability of alternative means of participation in Parliament’s business such as broadcasts and live streaming of proceedings of the House and Committees and the option to give evidence at Committees by Zoom.

[21]   Reference was made to the list of factors that a Full Bench of the High Court set out in Police v Beggs when considering the exercise by the Speaker of rights under the Trespass Act.6 It was said that, in terms of that list, the Speaker was aware that Mrs Greenhorn was involved with the protest; that the size, scale, duration and escalation of the protest raised significant safety concerns; that the protest interfered in significant ways with the rights and freedoms of other members of the public and with the rights of those whose business duties take them to Parliament; that the protest limited severely the rights of the Speaker and the Crown to operate, manage and control its property; and that the protest raised significant public order and safety concerns.

[22]   Thirdly, it is said for the respondent that the issuing of the trespass notice was not inconsistent with the right to be free from discrimination under the Bill of Rights Act. It is said that Mrs Greenhorn has not identified a prohibited ground of discrimination or any differential treatment as between her and others arrested at the protest. The Speaker’s decision was, it is said, consistent with s 19 of the Bill of Rights Act.

[23]   Fourthly, the respondent says that the circumstances here are different to those that arose in Mr Peters’ case against the Speaker which was resolved following settlement.7

[24]   Fifthly, the respondent says that the withdrawal of the trespass notice  on     30 March 2023 was lawful and reasonable. While a trespass notice remains in effect for a period of two years,8 the notice issued to Mrs Greenhorn, it was said, was withdrawn after a year when it was concluded that there was no ongoing risk or threat that could not be managed by other means.

[25]   It is said that, while Mrs Greenhorn expressed the view that the withdrawal “should have happened a lot earlier”,9 at the time at which, in September 2022,

6      Police v Beggs [1999] 3 NZLR 615 (HC) at [629]–[631].

7      Peters v The Speaker of the House of Representatives, above n 2.

8      Trespass Act, s 4(4).

9      A reference to content from the Statement of Claim.

Mrs Greenhorn sought to have the trespass notice withdrawn, the criminal charges against her were still before the Court.

Discussion

[26]Section 4(1) of the Trespass Act is in the following terms:

Where any person is trespassing or has trespassed on any place, an occupier of that place may, at the time of the trespass or within a reasonable time thereafter, warn him to stay off that place.

[27]   A warning can be given to a person orally or by notice in writing.10 The “warning” is referred to in practice as a “trespass notice”.

[28]   Under s 4(4) of the Trespass Act, every person commits an offence if they are warned to stay off any place and wilfully trespass on that place within two years after the giving of the warning. While the two-year minimum period is prescribed by the Act, an occupier may withdraw a trespass notice at an earlier point in time.

[29]   There is little doubt that the trespass notice in this case was issued in accordance with the requirements of the Trespass Act. The Speaker is an occupier of Parliament grounds for the purpose of the Act.11 The Speaker’s Rules do amount to the conditions of a licence to protest or assemble on Parliament grounds.12

[30]   I can certainly understand Mrs Greenhorn’s position, as she expressed it to the Court. She did not see that she was doing anything more than exercising her rights. However, in circumstances in which oral warnings to stay off Parliament grounds were given on the morning of 10 February 2022 and in which Mrs Greenhorn was arrested and detained for wilful trespass on that day, the terms of s 4 were satisfied.

[31]   However, it is not just a matter of satisfying the terms of s 4 of the Trespass Act, on their face. The Speaker is exercising a public function when, as an occupier,

10     Trespass Act, s 5.

11     Parliamentary Service Act 2000, s 26(2).

12     Police v Beggs, above n 6, at 624, upheld by the Court of Appeal in Attorney-General v Beggs

[2002] NZAR 917 (CA).

he is considering the use of powers under the Trespass Act. That function must be exercised consistently with the Bill of Rights Act.13

[32]   Several rights within the Bill of Rights Act are engaged through the issue by the Speaker of the trespass notice: the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind and any form,14 the right to freedom of peaceful assembly,15 the right to freedom of association,16 and the right to freedom of movement.17

[33]   People who are permitted access to a public place such as Parliament grounds must be able to exercise these rights. Yet, as the Court made clear in Police v Beggs, these rights are not absolute.18 As the Court said in that case, if a protest or assembly is unlawful or if individuals behave in a disorderly manner or breach or threaten to breach the peace, or unreasonably infringe the rights of others, or create a civil nuisance, the Speaker could not be said to be acting unreasonably in requiring their departure. In speaking of the “rights of others”, the Court was including the rights of the occupier to enable preservation of their property and reasonable limitations on its use. As the Court said, the “test will always be what is reasonable in the circumstances”.19

[34]   While what is reasonable will largely depend on the circumstances of each case, the Court in Police v Beggs suggested a list of six relevant circumstances. They provide a useful basis for considering the reasonableness of the Speaker’s actions in this case. I discuss their application to the circumstances of this case.

The applicant’s role in the protest

[35]   The Speaker was aware that the applicant was at the protest as the Police had provided him with a list of arrested individuals.

13     Police v Beggs, above n 6 at 626.

14     New Zealand Bill of Rights Act 1990, s 14.

15     Section 16.

16     Section 17.

17     Section 18.

18     Police v Beggs, above n 6 at 627.

19     At 627.

The nature of the assembly — whether it was unreasonably prolonged

[36]   The protest was, in terms of its scale, size and duration, unprecedented. As is explained in the evidence for the Speaker, it was escalating and raised significant safety concerns. In many ways it was peaceful but in others it was disorderly and unlawful. It did violate a number of the Speaker’s Rules. A hostile and aggressive stand was taken by a number of protesters towards Parliamentary Security and the Police. I do not refer to Mrs Greenhorn directly when I say that a number of protesters took an aggressive stance. That is not in issue. Rather, I am considering at a broader level the Speaker’s decision to warn people to stay away and then to issue trespass notices to some people, including those arrested.

The rights and freedoms of other people enjoying the privilege of being on Parliament grounds

[37]   There is little doubt that the protest interfered in material ways with the rights and freedoms of other members of the public to exercise their own rights and freedoms under the Bill of Rights Act.

The rights of the occupier and those whose business or duties take them to Parliament

[38]   As the Chief Security Officer at Parliament has said in evidence, the protest impacted parliamentary operations significantly. The House was inhibited in carrying out its functions. Access to the Parliament forecourt was restricted, access to Parliament Buildings was limited and the parliamentary precinct was closed to the public.

Maintaining public order

[39]   The interest in maintaining public order is a recognised constraint within the United Nations’ International Covenant on Civil and Political Rights 1966 (CCPR).20 As the High Court in Police v Beggs observed, in the commentary on the CCPR, “the protected ‘public order’ interests is found in all provisions” and enables Member States

20     International Covenant on Civil and Political  Rights  999  UNTS  171  (opened  for  signature 16 December 1966, entered into force 23 March 1976).

to ensure the smooth functioning of gatherings and demonstrations.21 As the Chief Security Officer at Parliament has said in his evidence, Parliamentary Security and Police were not able to maintain peace within the protest. It was not safe for Parliamentary Security to engage with any of the protesters. As a result, Parliament grounds were closed from 10 February to 16 March 2022 and between 31 March and 19 April 2022. And, as the Chief Executive of the Parliamentary Security has said in evidence, there were concerns that there was a risk of another protest of the same scale, unpredictability and escalation, especially because the vaccination mandates continued to exist.

[40]   For all of these reasons, I am satisfied that the use of trespass notices as one of the means to respond to issues that were arising in the parliamentary protests was reasonable. While the notice issued to Mrs Greenhorn was a restriction on her rights, it was, in terms of s 5 of the Bill of Rights Act, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[41]   And, while the trespass notice was, in  and  of  itself,  a  reasonable  limit, Mrs Greenhorn’s rights were limited only to the extent reasonably necessary. The trespass notice was to be, and was, reviewed after one year.

[42]   In addition, it can fairly be said that, while Mrs Greenhorn’s rights to be on Parliament grounds were limited for a 12-month period, her relevant rights during that time could otherwise be exercised. As the United Kingdom Supreme Court found relatively recently, placing limits on protest action locations did not prevent anti- abortion protesters in Northern Ireland from exercising their rights to freedom of expression and freedom of peaceful assembly: “They can do so wherever they please except within the immediate vicinity of hospitals and clinics where abortion services are provided”.22

21 Manfred Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (1st ed, Engel Publisher, Germany, 1993) at 380–381.

22 Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32 at [132], which was considering whether the Bill was compatible with the rights of protesters.

[43]   The Court, while acknowledging the importance of location in the context of protests, said that the European Convention on Human Rights23 “does not bestow any freedom of forum for the exercise of the right to protest”.24

[44]   And, here, the limitation is mitigated further by the ability of a person, who cannot enter Parliament grounds for a time, to access Parliament’s debates and the proceedings of Select Committees online.

[45]   In Police v Beggs, the Court said that the Speaker, in exercising the occupier’s power to act under the Trespass Act, must as a minimum act in good faith, exercise the power only for purpose for which it was conferred, exercise it reasonably and with due regard to the wishes of all users of Parliament grounds and must consider the rights of the Speaker and the Crown effectively to operate, manage and control its property. I am satisfied that the Speaker has acted appropriately here and in accordance with these considerations.

[46]   Mrs Greenhorn has referred also to the trespass notice amounting to a breach of her right to be free from discrimination. It is said that the Speaker has discriminated against Mrs Greenhorn on the basis of her name being on the list of those to whom trespass notices were issued. She has said that many people who attended the protests did not receive trespass notices.

[47]   However, the difficulty with this argument is that it does not raise a prohibited ground of discrimination. The differential treatment between Mrs Greenhorn and others not arrested during the protest is not a prohibited ground of discrimination under s 19 of the Bill of Rights Act and s 21 of the Human Rights Act.25

[48]   Equally, the withdrawal of the notice on 30 March 2023 was in my view both lawful and reasonable.

23 Which is given effect through the Human Rights Act 1998 (UK).

24 Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill, above n 24, at [127].

25  The prohibited grounds of discrimination under s 21 of the Human Rights Act 1993 are sex,  marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status and sexual orientation.

[49]   I do not see it as being unreasonable for the notice not to have been withdrawn at an earlier point in time. The ongoing public health measures in place relating to the COVID-19 pandemic continued throughout 2022 and early 2023. Concerns about the risk of further protests remained during that time.

[50]   The review of the trespass notices occurred at a point in time that was earlier than the one-year period that had been signalled when the notices were issued.

[51]   While Mrs Greenhorn has expressed the view that the review should have happened a lot earlier, the points made above, combined with the fact that her criminal charges were still before the Court until October 2022, mean that it is at least not unreasonable for it to have taken until March 2023 for it to be withdrawn.26

[52]   For these reasons, while the trespass notice issued to Mrs Greenhorn was without doubt a limitation on fundamental rights, it was issued in a way that was reasonable in terms of the Bill of Rights Act and it was withdrawn in a timely and reasonable manner.

[53]   Mrs Greenhorn has said, in addition, that it is wrong that the treatment she has received is inconsistent with that received by Mr Peters who had received a trespass notice as well.

[54]   Orders were made by consent in Mr Peters’ case against the Speaker, declaring the issue of a warning under s 4 of the Trespass Act to Mr Peters to have been unreasonable, irrational, and an unjustified limitation on Mr Peters’ rights.27 However, the basis upon which the parties in the Peters case agreed to the declarations are not known to the Court and nor should they be. Equally, the facts and circumstances of that case do differ from those here. This is not a matter that the Court can take into account.

26 While Mrs Greenhorn makes the point that the charges should not have been brought in the first place and that charges against others had been dismissed by courts, this Court is not concerned with, and nor is it in a position to consider, the charges themselves.

27 Peters v The Speaker of the House of Representatives, above n 2.

Relief sought

[55]   Mrs Greenhorn said she has brought these proceedings for three reasons. First, she wanted the trespass notice withdrawn. Although that has now been done, she has sought, essentially, a form of declaratory relief about the lawfulness of the issue of the trespass notice in the first place. Secondly, she wanted repayment of a set of reasonably modest costs she had incurred relating to the filing and service of the judicial review proceeding to be reimbursed. Thirdly, as described in [13] above, she feels strongly that she is owed an apology.

[56]   For the reasons given, a declaration about the lawfulness of the trespass notice cannot, having regard to the relevant facts and circumstances, be made. However, even if I had found there to have been unlawfulness of any kind in relation to the issue of the trespass notice, the Court does not have jurisdiction to order the Speaker to provide an apology as a result. There is no power, whether in statute or at common law, that would enable an order of that sort of to be made.

[57]   An apology could only be given if the Speaker agreed to do so. The Speaker does not agree and so an apology on that basis is not possible here either.

Outcome

[58]For the reasons given, the application for judicial review is declined.

Costs

[59]   Because Mrs Greenhorn’s claims have not succeeded, there is no tenable basis for the costs she has claimed from the Speaker to be the subject of relief.

[60]   The Speaker has sought costs against Mrs Greenhorn on a 1A basis. It is said for the Speaker that he had notified Mrs Greenhorn that, if she continued with the proceedings following the withdrawal of her trespass notice, he would seek reimbursement of his legal costs against her in the event that he was successful in this proceeding. The Speaker is, it is said, concerned with the costs to the Parliamentary Service and to the taxpayer in responding to this proceeding.

[61]   In the normal course, having been unsuccessful in the claim that she has brought, Mrs Greenhorn would under the costs regime in the High Court Rules 2016, be required to meet a portion of the Speaker’s costs. However, this is one of those exceptional cases in which, despite the claim being unsuccessful, an award of costs is not warranted.

[62]   As I have mentioned earlier, the events that led to Mrs Greenhorn bringing this proceeding have been a significant and emotional ordeal for her. She has seen herself as doing no more than exercising her rights for the benefit of her children. She has conducted the proceeding responsibly and she made compelling submissions during the hearing.

[63]   As the Supreme Court said in Attorney-General v Udompun, applying normal costs rules in cases of this type may discourage litigants from bringing Bill of Rights Act claims.28 This would have the result of weakening Bill of Rights Act protections. That will not always be the case. A case-by-case assessment will always be required. But, whether looked at through this lens or under the discretion in r 14.7(e) and (g) to refuse costs in a proceeding that is concerned with a matter of public interest or for some other valid reason, this is in my view an exceptional case in which it would not be appropriate for an individual seeking to uphold their perception of their fundamental rights to be required to pay a sum of money to the Speaker.

Radich J

Solicitors:
Simpson Grierson for Respondent

28     Attorney-General v Udompun [2005] 3 NZLR 204, (2005) 7 HRNZ 811 (CA) at [186].