Wadsworth v Auckland Council
[2013] NZHC 413
•6 March 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-8284 [2013] NZHC 413
IN THE MATTER OF the Local Government Act 2002
AND
IN THE MATTER OF an Appeal from the decision of the
Auckland Court in Proceeding CIV-2011-
004-002492
BETWEEN R WADSWORTH AND P M BRIGHT Appellants
ANDAUCKLAND COUNCIL Respondent
ANDATTORNEY-GENERAL Intervening Party
Hearing: 25 September 2012
Appearances: R M Mansfield for Appellant (Wadsworth) Appellant (Bright) in Person
A R Burns and H H Ifwersen for Respondent
A M Powell and L M Inverarity for Intervening Party
Judgment: 6 March 2013
JUDGMENT OF ELLIS J
This judgment was delivered by Justice Ellis on 6 March 2013 at 3.00 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date…………………………..
Solicitors: Crown Law, PO Box 2858, Wellington 6140
Fax: (04) 473-3482 – A Powell / L Inverarity
Meredith Connell, P O Box 2213, Auckland 1140Fax: (09) 336-7629 – A Burns / H Ifwersen
Counsel: R Mansfield, PO Box 2674, Auckland 1140
Fax: (09) 368-4473 – Email: [email protected]
Copy To: P Bright, 86A School Road, Kingsland, Auckland 1021
WADSWORTH V AUCKLAND COUNCIL HC AK CIV-2011-404-8284 [6 March 2013]
[1] On 21 December 2011, Judge Wilson QC granted the Auckland Council (the Council) a permanent injunction under s 162 of the Local Government Act 2002 (the LGA) that had the effect of bringing to a halt the Occupy Auckland protest at Aotea Square.1 The terms of the injunction restrained the protesters from breaching a series of specific clauses in Auckland Council Bylaw No 20 Public Places 2008 (the Bylaw).2
[2] Judge Wilson also ordered that:
The Respondents shall within 48 hours of service of this order: (a) Cease residing from time to time in Aotea Square; and
(b) Remove all tents, marquees, sofas and other seating, kitchen and washing facilities, all other structures, posters and signage, and all other materials and things that they have erected and installed relating to the protest event. In the event that the Respondents cease residing from time to time at Aotea Square, but do not remove the materials and things associated with the protest event, then the Applicant's agents are free to do so.
[3] The Judge recognised that granting the injunction would limit certain of the protesters’ rights under the New Zealand Bill of Rights Act 1990 (NZBORA).3 But he concluded that, on an application of the so-called Oakes test, such limitations could be demonstrably justified in a free and democratic society.4
[4] Immediately following the District Court’s decision, some protesters left Aotea Square voluntarily. The Council exercised its powers under s 164 of the LGA to clear the campsites completely on 23 and 26 January 2012. Some protesters were arrested during that process.
[5] This judgment relates to an appeal from Judge Wilson’s decision. The appeal is brought in a representative capacity by Mr Wadsworth and by Ms Bright in her
own right. Both Mr Wadsworth and Ms Bright were amongst the protesters.
1 Auckland Council v The Occupiers of Aotea Square, DC Auckland CIV-2011-404-002492, 21
December 2011.
2 See [14] below.
3 In particular their rights to freedom of expression, peaceful assembly and association: New Zealand
Bill of Rights Act 1990, ss 14, 16 and 17.
4 R v Oakes [1986] 1 SCR 103; [NZBORA] 1990, s 5.
Background
[6] The nature and aspirations of the international “Occupy” movement are well known and are set out in Judge Wilson’s judgment.5 I do not intend to repeat them here. Judge Wilson also carefully set out the relevant facts of the Auckland protest, and the occupation of Aotea Square during October and November 2011.6
[7] For the purposes of the present analysis, however, it is useful to record by way of background that Aotea Square is a significant public space in Auckland’s city centre. Legal title to it was vested in the present Council on 1 November 2011. The Square is used for numerous events throughout each year and many public processions and celebrations culminate there. It also provides access to surrounding buildings such as the Aotea Centre, Town Hall, Metro cinemas and Auckland Council Buildings. In October 2010, $80.7 million was spent redeveloping the Square. In the year immediately preceding the Occupy protest, 63 events were hosted there.
[8] The chronology of relevant events is as follows:
(a) On 15 October 2011, around 3000 protesters marched up Queen St to Aotea Square.7 Without notifying, or seeking a permit from, the Council, they then erected between 35 and 70 tents on the grassed areas.
(b)The protesters conducted a peaceful protest, and sought to provide opportunities to reflect on both the international and New Zealand economy. Some protesters camped overnight in Aotea Square, but it appears that most of the tents were often empty.
(c) At the outset, the Council acknowledged the protesters’ right to protest, while reserving its legal rights. Although there were
5 At [2] – [4].
6 At [6] – [20].
7While counsel for Auckland Council suggest that there were only 1000 protesters, Judge Wilson found that there were approximately 3000.
discussions between the Council and the protesters throughout the
occupation, an “exit strategy” could not be agreed.
(d)While the protesters had initially said their occupation would last six weeks, on 4 November 2011 they expressed their intention to stay until they had “roused the masses”.
(e) By 10 November 2011, there were 104 tents and similar structures on the site.
(f) On 14 November 2011 the Council issued a trespass notice to the protesters but there was no response.
(g) At a meeting on 25 November 2011, the Mayor of Auckland requested
an “end date” for the protest.
(h)On 28 November 2011, the protesters advised the Council that they intended to stay indefinitely. A further trespass notice was issued and ignored.
[9] The application for the injunction was filed shortly afterwards.
Bylaw 20 and the basis for the Council’s injunction application
[10] Section 162(1) of the LGA provides that:
A District Court may, on the application of a local authority, grant an injunction restraining a person from committing a breach of a bylaw or an offence against this Act.
[11] In the present case, the Council’s application for an injunction under s 162(1) was focused on an array of alleged past and future breaches of certain clauses in Bylaw 20, which restricts the undertaking of certain activities in a public place. The clauses particularly relied on by the Council were:
(a) Clause 20.2.1(b), which prohibits carrying out an activity in a manner that is likely to interfere unreasonably with the comfort and enjoyment of the public generally or of persons who come within close proximity of that activity;
(b)Clause 20.2.1(c), which prohibits carrying out an activity in a manner that is likely to damage or destroy any property or interfere with the surface of any land;
(c) Clause 20.3.1(g), which prohibits camping or sleeping overnight, without permission or a licence, except in areas set aside by the council for that purpose;
(d)Clause 20.3.1(l), which prohibits placing or leaving unattended any material or thing under a person’s control, without permission or a licence;
(e) Clause 20.3.1(q), which prohibits placing or using loudspeakers or other devices for amplifying and emitting sound, without permission or a licence;
(f) Clause 20.3.1(v), which prohibits putting up or erecting any tent or structure of any kind, without permission or a licence;
(g)Clause 20.3.1(w), which prohibits affixing any poster or advertising material on any surface or structure, without permission or a licence;
(h)Clause 20.6.1(c), which prohibits undertaking any event without an event permit or licence.
[12] As regards the last of these prohibitions, the Bylaw defines “event” to mean:
... any organised temporary activity including an organised gathering, parade, protest, wedding, private function (which is independent of premises), festival, filmshoot, concert, celebration, multi-venue sports event of significant scale, fun run, marathon, duathlon or triathlon. ...
[emphasis added]
[13] And clause 20.6.1 provides:
Except as provided in clause 20.6.2 below, or where an exemption has been granted by an authorised officer, no person shall in, or over a public place:
...
c. undertake any event without an event permit issued by the council.8
[14] The purpose of Bylaw 20 is made clear in its Explanatory Note, which states:
The Local Government Act 2002 gives authority to territorial authorities to protect the public from nuisance, protect, promote and maintain public health and safety and minimise the potential for anti-social behaviour in public places under the control of council. It also allows territorial authorities to make bylaws to manage and regulate activities carried out in public places under the control of council and to protect public places from loss, damage and misuse.
This Public Places bylaw seeks to regulate and manage a diverse range of activities in public places under the control of Auckland City Council that may cause damage, create public nuisance, compromise public safety and have adverse effects on the user. The bylaw also seeks to regulate and manage activity in public places under the control of council that may compromise Auckland City Council’s ability to maintain appropriate standards of convenience, safety and amenity for the well-being and enjoyment of citizens, visitors and businesses with [sic] the city.
[15] The witnesses who gave evidence for the Council in the District Court said that the Occupy protest had had (and would continue to have) the following deleterious effects:
(a) General interference with the usual uses of Aotea Square (e.g. relaxation and sports) and the risk that such interference would
continue. By way of example, it was said that:
8 The issues of exemptions and permitting are discussed later in this judgment.
(i)several parades that were planned to have culminated in the Square had been deterred by the protesters. The most significant of these was the Rugby World Cup Victory Parade.
(ii)Events such as the Christmas Markets and Summer Schools were also disrupted because the protesters either did not leave enough space or occupied the space in which the event was intended to take place.
(iii)The EDGE also lost of up to $7,950 in revenue from four bookings that were cancelled due to the protesters.9
(b)Significant damage to the Square and in particular to the grass area occupied by the protesters. In the event that the damage to the grass caused by the tents resulted in a full grass replacement being required, that would cost up to $97,000. It was also said that trees in the area had otherwise been damaged by aphids because they could not be sprayed.
(c) A risk of further significant damage occurring to the grass area, the waterproof membrane that protected the underground carpark and the irrigation system directly below the grass. In particular, therew was a risk that the waterproof membrane, which lies underneath the grass to prevent water entering the carpark below, could be punctured by one of the tent pegs or damaged by petroleum-based products used by the protesters.
(d)The incurring of other incidental costs, such as the cost of security guards and fences that had been constructed to protect the protesters’
safety.
9 The EDGE is part of Regional Facilities Auckland Ltd (a council controlled organisation) and is responsible for managing the Aotea Centre, the Auckland Town Hall and Aotea Square.
(e) Anti-social behaviour that was said to have increased over time, including (it was said) unacceptable noise during an event held at the campsite, the smells of alcohol and cannabis, chalked graffiti, urination and defecation around the site, dogs and young children roaming around the campsite, and the shouting of profanities.
The protesters’ position
[16] Central to the protestors’ position before Judge Wilson and on appeal was the relationship between Bylaw 20 (and its enforcement) and the NZBORA rights said to be engaged by the protest, namely ss 14, 16 and 17. Those rights are expressed as follows:
14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
16 Freedom of peaceful assembly
Everyone has the right to freedom of peaceful assembly.
17 Freedom of association
Everyone has the right to freedom of association.
[17] Ms Bright also contended that s 19 of NZBORA was relevant. That section relevantly provides:
19 Freedom from discrimination
(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.10
[18] The protestors’ position was underscored by the existence of s 155(3) of
LGA, which provides that:
No bylaw may be made which is inconsistent with the New Zealand Bill of
Rights Act 1990, notwithstanding section 4 of that Act.
10 “Political opinion” is one of the prohibited grounds of discrimination under s 21 of the Human
Rights Act 1993.
[19] Also relevant (on appeal, at any rate) is s 12 of the Bylaws Act 1910 which empowers the High Court to quash an invalid bylaw or any part of such a bylaw.
[20] Because the proceedings in the District Court were initiated by the Council, they did not constitute a full frontal attack by the protestors on the vires or validity of Bylaw 20. Nonetheless, Mr Burns for the Council accepted that the Council ought not to seek to apply an invalid bylaw or to enforce it through injunction proceedings.11 Equally, he accepted that the Council’s actions in enforcing the Bylaw was legitimately open to NZBORA scrutiny in the context of the injunctions proceedings.
District Court decision
[21] I do not propose to set out or analyse Judge Wilson’s legal analysis in any great detail. As I have noted above, however, in essence he held that the restrictions on the NZBORA rights raised by the Council’s actions could be justified in a free and democratic society under NZBORA s 5. In so holding he did not draw any particular distinction either between the validity of Bylaw 20 itself and the Council’s enforcement action under it and nor did he address the different clauses in the Bylaw individually. I have noted that merely because, with the advantage of (considerable) time and the dissipation of the urgency that surrounded the hearing in December
2011, I have been able to give those matters some consideration.12
[22] In terms of the critical factual issues, however, Judge Wilson largely accepted the evidence about damage or possible damage that had been alleged by the Council to have been caused by the protest. He noted, however, that the full extent of any
damage would not be evident until the protestors had left.
11 In the “Occupy” cases in Canada the Courts have held that it is not open to them at an interlocutory injunction stage to determine whether Bylaws that are on their face inconsistent with the Charter should be struck down: Victoria (City) v Thompson 2011 BCSC 1810; Vancouver (City) v O’Flynn- Magee 2011 BCSC 1647. The “Occupy” cases in England and in Australia have not been concerned with Constitutional validity issues.
12 Although it might be thought that the effluxion of time and the dispersal of the protest some time ago might render this appeal moot, the issues raised by it are of some ongoing and real consequence.
[23] As to the separate, additional, factual matters raised by Ms Bright, it is useful to set out Judge Wilson’s analysis in full:
[46] Ms Bright took a leading part in the hearing on her own behalf. She filed a notice of opposition on the grounds that the making of a permanent injunction would breach the respondents' rights, and legally conflicts with section 155(3) of the Local Government Act 2002.
[47] By leave she filed a late affidavit in the case. She cross-examined
Ms Verdouw and made detailed submissions.
[48] She referred in closing submissions, as she had in her affidavit, to her long career as protester and activist and to various steps taken by her to advance the cause of the interests of the 99% and to call to account the 1% who in her view have undue influence on public bodies at a policy level.
[49] She made the point that the Council must know she held political views contrary to the Government by producing during her closing submissions a number of banners she had made. They were of a political nature which Occupy Auckland had displayed. They were critical of the National and Act parties in the run up to the New Zealand general election.
[50] Hence, Ms Bright submitted that the Auckland Council was motivated by unlawful political discrimination in seeking a permanent injunction to require the respondents to vacate Aotea Square.
[24] The learned Judge then went on to say:
[51] Assuming in her favour that she had given the banner information in evidence rather than in submissions, it was incapable of proving on its own that the Council was motivated by unlawful political discrimination.
[52] Although she was the prime mover in having the Council's principal deponent Ms Verdouw made available for cross-examination and cross- examined her at length Ms Bright did not put to her the proposition that the Council was motivated by unlawful political discrimination.
[53] Ms Verdouw deposed that the Auckland Council had no intention to prevent protest about matters of interest to the members of Occupy Auckland. The Council's objection was to the place and the method because the tents' domination of the grassed areas of Aotea Square denied free access to those areas to other members of the public, and was causing damage and loss.
[54] The fact that the allegation was not put to the Auckland Council’s witness counts significantly against the weight that I can attach to it. I do not accept Ms Bright's assertion that she was entitled not to ask that question because Ms Verdouw would not be aware of it.
[25] He concluded:
[55] I find that there is no evidence that the Council was motivated by unlawful political discrimination against Ms Bright or the other Occupiers.
[26] I shall return to these matters later in this judgment.
Grounds of appeal
[27] The grounds of Mr Wadsworth’s appeal essentially are that:
(a) the Judge erred in finding that the Bylaw was consistent with the
NZBORA, and therefore not invalid under s 155(3);
(b) the Judge erred in his finding that the Council’s actions in seeking to
enforce the Bylaw were consistent with the NZBORA;
(c) the terms of the injunction (set out above) were too wide in that they went further than was necessary to protect any legitimate interests of the Council.
[28] Of particular relevance to the first ground was Mr Mansfield’s contention that Judge Wilson could, and should, have adopted a “rights consistent” interpretation of the Bylaw.
[29] Of particular relevance to the second of these grounds was the further contention that certain of the factual findings that underpinned the decision of the learned District Court Judge were wrong. These alleged errors included in particular the Judge’s assessment that substantial loss and damage had occurred as a result of the occupation.
[30] Ms Bright generally supported Mr Wadsworth’s grounds of appeal but additionally submitted that:
(a) The learned Judge made other material factual errors, including:
(i)about the progress that had been made by the Council in negotiating an “exit date” with the protestors (and the likelihood of the occupation dissolving voluntarily);
(ii)his disregard of Ms Bright’s evidence which (she said) showed that the Council’s decision to end the protest was politically motivated (and, as noted above, constituted unlawful political discrimination in breach of s 19 NZBORA).
(b)the learned Judge was wrong to find that “the Bill of Rights does not contain an unrestrained right to camp where one wishes”. Ms Bright referred to the 19 year occupation of Greenham Common and the 30 year old “Aboriginal Tent Embassy” as international examples in support.
[31] Ms Bright also sought also to adduce further evidence in support of the contention recorded at [31](a)(ii) above. At the hearing I permitted her to refer to that evidence on a de bene esse basis.
[32] Because of the general public importance of the issues raised and because of the centrality of the NZBORA to those issues the Attorney-General sought, and was granted, leave to intervene in the appeal. I record my thanks to Mr Powell for his careful and helpful submissions. Determining NZBORA consistency: what is the correct approach?
[33] I have set out the relevant clauses of the Bylaw at [11] above.
[34] The practical operation and effect of the NZBORA is governed by ss 3 – 7. In the present case the provisions of particular interest are ss 3, 5 and 6, which respectively provide:
3 Application
This Bill of Rights applies only to acts done –
(a) By the legislative, executive, or judicial branches of the government of New Zealand; or
(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
5 Justified limitations
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
[35] Section 4 provides that:
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—
(a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of this
Bill of Rights.
However s 155(3) of the LGA means that s 4 has no application here. And s 7, which relates to the Attorney-General’s functions under the Act is also not relevant.
[36] In the District Court, and before me, the Council’s starting point was that the clauses in question did on their face limit the rights contained in ss 14, 16 and 17 of the NZBORA. In my view that concession was properly made. Even though many of the clauses do not necessarily or directly restrict the rights in question it is clear (for example) that the construction of shelters and camping overnight can constitute an act of protest, as indeed it did in the Occupy context. And once an act of camping takes on the quality of protest, it not only assumes an expressive content such that
the right to freedom of expression is engaged but any proscription on it also potentially interferes with the freedoms to assemble and to associate.13
[37] Notwithstanding that concession, however, the Council submitted that the restrictions on the rights contained in the Bylaw were reasonable and could be justified in a free and democratic society, under s 5. As I have said, that submission was accepted by the learned District Court Judge following his application of the Oakes test.14
[38] On appeal, Mr Mansfield submitted that NZBORA s 5 (and the Oakes test) was the wrong analytical focus. He said that the Court could and should adopt the analysis preferred by Elias CJ in her minority judgment in R v Hansen.15 There, her Honour expressed the view that s 5 does not have a role to play when the Courts are called upon to interpret statutes in a rights consistent way.16 Rather, s 5 becomes relevant only after inconsistency has been determined and only if there is then a need to consider whether there is reasonable justification for that inconsistency. On that analysis, the most obvious role for s 5 therefore relates to the performance of the Attorney-General’s function under NZBORA s 7, rather than in relation to any judicial interpretive exercise.17 The corollary of that is that NZBORA s 6 requires a court to favour an interpretation of a statutory provision that is consistent with the meaning of NZBORA rights in their fullest sense. Thus the Chief Justice expressly rejected the proposition that NZBORA protects only “reasonably limited rights.”
[39] By contrast, the majority in Hansen held that the appropriate analysis when considering whether a statutory provision could be consistently interpreted with NZBORA rights is:
(a) to ascertain Parliament’s intended meaning; and then
13 Although, as I have noted, Ms Bright contended that s 19 was also engaged, that submission was fact specific and thus related to the enforcement of the Bylaw rather than its content per se.
14 Supra, note 3.
15 R v Hansen [2007] 1 NZLR 1 (SC).
16 It goes without saying that the likelihood of the impugned clauses of Bylaw 20 being found invalid under LGA s XX is greatly increased if they cannot be “saved” by s 5. However it is not entirely clear to me whether Mr Mansfield was contending that s 5 should have no role to play at all when determining validity under LGA s 155(3).
17 This approach is similar to that endorsed by Cooke P in Ministry of Transport v Noort [1992] 3
NZLR 260, (1992) 8 CRNZ 114 (CA)).
(b)to ascertain whether that meaning is apparently inconsistent with a relevant right or freedom; and, if so
(c) to ascertain whether that inconsistency is nevertheless a justified limit in terms of s 5.
[40] If the apparent inconsistency is found to be a justified limit, the inconsistency is legitimised and the intended meaning prevails.
[41] If, on the other hand, the inconsistency cannot be justified under s 5, the Court should examine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted, but if not, then NZBORA s 4 mandates that Parliament’s intended meaning be adopted.
[42] This methodology puts s 5 at the centre of the consistency analysis.18
[43] Commentators have also noted, however, that the majority in Hansen did not go so far as to hold that this methodology was definitive. It was expressly recognised both by Blanchard J at [61] and Tipping J at [94], for example, that other approaches may be open in different cases. And there are subsequent instances of the adoption of an (arguably) different approach: for example, Schubert v Wanganui
District Council,19 a decision relied on by Mr Mansfield.
[44] Hansen was concerned with interpreting a statutory provision that not only appeared on its face to be inconsistent with an NZBORA right but which was also not saved by the application of s 5. The Court was required to decide whether the provision was nonetheless able to be given a rights consistent interpretation. It was not, and so the Court was required (by s 4) to interpret and apply the provision in a
way that cut across the right in question.
18 Some commentators have said that it suggests that the standard for assessing consistency under s 6
is “justifiably limited rights”.
19 Schubert v Wanganui District Council [2011] NZAR 233 (HC).
[45] Although in Schubert the Court was concerned with a similar issue, it arose in the context of interpreting a far more open-textured statutory provision than the provision at issue in Hansen. For a variety of reasons Clifford J concluded that the primary legislation concerned (the Wanganui District Council (Prohibition of Gang Insignia) Act 2009) could and should be interpreted consistently with the relevant NZBORA right in its fullest sense.
[46] But in the present case, the existence of LGA s 155(3) is significant. That section expressly authorises the Court to strike down an offending bylaw, and its powers are not therefore circumscribed by NZBORA s 4. In my view the Court’s express power to invalidate a bylaw for inconsistency20 renders the s 5 exercise of central importance. I do not see anything in the Chief Justice’s dicta in Hansen that would suggest otherwise.
[47] The centrality of s 5 does not of course directly answer the other question posed by Mr Mansfield’s submission. That question is whether, following a finding of prima facie inconsistency and prior to turning to any s 5 justification analysis, the Court should strive to adopt a rights consistent interpretation of the offending provision. This, he said, is what the High Court did in Schubert.
[48] But even if such a course were open to me,21 I have formed the view that such an analysis would not affect the outcome here, for the reasons that follow.
[49] As I understood it, Mr Mansfield’s submission was that if some or all of the clauses in the Bylaw are on their face inconsistent with the “fullest sense” of the rights contained in ss 14, 16 or 17 then the Court should, if possible, read those Bylaws down, in a rights consistent way. For example, the restriction on overnight camping contained in cl 20.3.1(g) should be read as excluding (i.e. not limiting)
camping where camping has expressive content as, for example, when it forms part
20 By which I mean inconsistency with NZBORA rights in their “fullest sense”.
21 It is, perhaps, arguable that this court would be free to follow the Chief Justice’s approach because the Court’s discussion about whether the s 6 interpretation exercise is properly conducted before or after the s 5 justification exercise does not form part of the ratio of its decision. As I have said, in Hansen, the result was the same either way because a rights consistent interpretation of the provision in question was not possible.
of an act of protest. His argument is that to read it in that way would render it consistent with NZBORA s 14.
[50] The difficulty with this submission is that the clauses in question are not sufficiently loose-textured to permit such a reading. To take the most obvious example, it is not possible to read down the restriction in cl 20.6.1 on organised protest in this way. That is because any organised protest necessarily cuts across the relevant NZBORA rights; to read it in a rights consistent way would render the restriction content-less. And, similarly, a purposive interpretation of (for example) the cl 20.3.1(g) camping restriction inevitably leads to the conclusion that even “protest camping” is intended to be included. An interpretation that meant that “protest camping” in a public place was not regulated would not sit easily with the clear objects of the Bylaw.
[51] Even adopting Mr Mansfield’s approach, therefore, the Bylaw does not in my view admit a reading that is consistent with the relevant NZBORA rights, in their fullest sense.
Application of Oakes to Bylaw 20
[52] Under the Oakes test a limitation on a right will be reasonable and demonstrably justified in a free and democratic society if:22
(a) The objective of the provision (here, the Bylaw) is pressing and substantial to warrant overriding a protected right or freedom. In the past, courts have had no difficulty finding the objective, once identified, is sufficiently important. The greater the perceived importance of the objective, the more likely that the courts will find
the measures taken were reasonable and demonstrably justified.
22 Rishworth et al The New Zealand Bill of Rights (2nd ed, Oxford University Press, Auckland, 2004)
at 176 to 181.
(b)There is a rational connection to this objective. This means that the limitation must be carefully designed to achieve the relevant objective, not arbitrary, unfair or based on irrational considerations.
(c) The right is impaired as little as is reasonably possible. This has been the most important branch of the Oakes test to date. It is enough if the means adopted fall within the range of reasonable solutions to the problem.23
(d)Proportionality between the limitation and the objective. At this stage, the elements identified under the previous heads are balanced to determine whether the restriction on a fundamental right is demonstrably justified in a free and democratic society.
[53] It was my understanding that the protestors accepted that the regulation of public space so that all may use and enjoy it was a pressing and substantial objective and that there was a rational connection between that objective and the contents of Bylaw 20. There is, as well, ample international authority for both those propositions and I do not consider the first two Oakes limbs further.24
[54] The third limb of the Oakes test, “minimal impairment”, is more difficult. The recent Canadian case of Vancouver (City) v Zhang is, perhaps, instructive.25
[55] Zhang was concerned with whether a bylaw that prohibited the erection of structures on city streets without first obtaining written consent from the City of Vancouver was constitutionally valid. The issue arose because Falun Gong practitioners (the practitioners) had set up banners, a makeshift shelter and meditation hut in front of the Chinese Consulate in the City. The structure was
primarily located on the grassy portion of a City street.
23 R v Sharpe [2001] 1 SCR 45 at 101-102.
24 Victoria (City) v Thompson above n 11; Vancouver (City) v O’Flynn-Magee above n 11; Batty v City of Toronto 2011 ONSC 6862; Calgary (City) v Bullock 2-11 ABQB 764; Olympic Delivery
Authority v Persons Unknown Engaged in Protest Activities Concerning the use of Land Known as Porter’s Field [2012] EWHC 1114 (Ch); Hall v Mayor of London [2010] EWCA Civ 817; City of London v Samede [2012] EWHC 34 (QB): Mayor Commonality and Citizens of London v Samede [2012] EWCA Civ 160; Muldoon v Melbourne City Council [2011] FAC 1306.
25 Vancouver (City) v Zhang 2010 BCCA 450, (2010) 325 DLR (4th) 313.
[56] The City brought an application for an injunction requiring the practitioners to remove the structures and prohibiting them from placing new structures on the street. The British Columbia Supreme Court found that the practitioners’ method of expression was not protected by s 2(b)26 of the Canadian Charter of Rights and Freedoms (the Charter) and that, in any event, the Bylaw would be a reasonably justified limitation on that right under s 1 of the Charter.
[57] But the Court of Appeal overturned the lower court decision and indicated its willingness to declare the relevant portion of the bylaw to be of no force and effect.27
The Court noted that public streets are spaces in which political expression takes place. It held that the City's effective limitation on the use of a structure for the purpose of political expression was a violation of s 2(b) which could not be justified because the bylaw did not minimally impair the practitioners’ rights. Madam Justice Huddart (speaking for the Court) said:
[67] I accept the By-law must be looked at as part of an entire regulatory scheme, in which a general prohibition is necessary because the City could not foresee every encroachment or obstruction. I also accept that the prohibition, while general, is not absolute, because exceptions are available. I do not accept, however, that the choice not to have a policy permitting the regulated use of a structure for political expression falls with the range of reasonable alternatives open to the Council. A more minimally impairing scheme would keep the blanket prohibition, set down its purpose, and provide a procedure with clear guidelines for obtaining an exemption. As it is now, there is no regulation of political structures. There is only an absolute prohibition with an uncertain possibility of exception by Council on unknown grounds. There is nothing to reflect considerations to govern when such approval might be granted, such as public safety, the orderly use of public property or others required for proper management of city streets. The reasonable regulation of commercial and artistic expression cannot justify a by-law that effectively precludes any use of a structure, however minimal, for political expression.
[68] In R. v. Guignard, LeBel J for the Court attested to the importance of political expression: Freedom of expression “plays a critical role in the development of our society” and “some forms of expression, such as political speech, lie at the very heart of freedom of expression.”
[69] Despite this fundamental constitutionally-protected right to expression, the By-law maintains a general prohibition subject to Council’s unfettered discretion to mete out individual exemptions. The City says that “[w]ithout this general prohibition the entire regulatory scheme would fail as it is impossible for the City to foresee and legislate in relation to every
26 Section 2(b) provides for the “fundamental freedoms” of “thought, belief, opinion and expression”.
27 The declaration was deferred for 6 months.
possible obstruction or encroachment”. This may be, but no evidence or argument was put forward as to why the City could not develop a policy allowing for the administrative regulation of political expression comparable to those in place for commercial and artistic expression. Had the Council instituted what might be called a “Political Structure Policy,” as it did policies for commercial and artistic expression, as part of its regulatory scheme, my conclusion might well be different. But they chose to maintain a complete ban and, effectively, to rely on prosecutorial discretion and Council’s power to direct the use of that discretion, to ensure the right to freedom of political expression was not infringed in an individual case. In so doing, I am persuaded, they rendered s. 71 [of the bylaw] unconstitutional and of no force or effect. They reached beyond that which is permitted to them when political speech is the right sought to be exercised. It cannot be said that there is not a more reasonably tailored regulatory scheme.
[citations omitted]
[58] And as far as the fourth limb of the Oakes test is concerned, namely proportionality between the limitation and the objective, her Honour held:
[74] … as will be obvious from these reasons, I am persuaded the “inconvenience” the practitioners incur from not being able to use a structure to aid their expressive activity outweighs the little benefit to the City the trial judge found flowed from what she considered the “regulation” of political expression, but which I am persuaded is an effective prohibition on the use of a structure for political expression.
[59] And Huddart J concluded:
[75] Justice L’Heureux-Dubé in Commonwealth and Justice Binnie in City of Montréal, both found constitutionally problematic a law that prohibits all expression, or all of one manner of expression, in a public place. While the By-law provides for exceptions to be granted, the City did not justify why this regulatory scheme, as opposed to a more sensitively tailored regulatory scheme, has salutary effects for the City. The practitioners have demonstrated there are deleterious effects on their free expression from the By-law. The By-law is thus also unconstitutionally disproportionate.
[60] It is clear from Zhang that a municipal restriction on erecting tents or structures in a public place (“camping”, for want of a better word) without a permit will not necessarily fall foul of Charter rights. In that case it was the absence of any detail around the permitting regime and the implication that the exercise of the City’s discretion was unfettered and potentially arbitrary that led to the finding of invalidity. The disproportionality analysis also necessarily took into account the particular circumstances, including the scale and nature, of the particular protest activity in question.
[61] Unlike the Vancouver bylaw, Bylaw 20 also seeks to control protest activity per se, again, subject to a permit regime. In that respect it seems relevant to note that the European Court of Human Rights (ECHR) has dealt with cases involving the laws of contracting States that purport to subject protest activity to the grant of prior permission. Those cases also make it clear that a permit-to-protest regime may or may not violate the relevant rights in the European Convention on Human Rights
(the Convention). Thus the Court has said that:28
... the right of peaceful assembly stated in [Article 11 of the Convention] is a fundamental right in a democratic society and, like the freedom of expression, is one of the foundations of such a society. [citations omitted] As such this right covers both private meetings and meetings in public thoroughfares. Where the latter are concerned, their subjection to an authorisation procedure does not normally encroach upon the essence of the right. Such a procedure is in keeping with the requirements of Article 11.1, if only in order that the authorities may be in a position to ensure the peaceful nature of a meeting, and accordingly does not as such constitute interference with the exercise of the right.
[citations omitted]
[62] And in Balcik and Others v Turkey the ECHR said:29
[46] … It is clear from this case-law that the authorities have a duty to take appropriate measures with regard to lawful demonstrations in order to ensure their peaceful conduct and the safety of all citizens …
[47] The Court also notes that States must not only safeguard the right to assemble peacefully, but also refrain from applying unreasonable indirect restrictions upon that right. …
[48] ... the Court considers that these principles are also applicable with regard to demonstrations and processions organised in public areas. It notes, however, that it is not contrary to the spirit of Article 11 if, for reasons of public order and national security, a priori, a High Contracting Party requires that the holding of meetings be subject to authorisation and regulates the activities of associations.
[citations omitted].
28 Rassemblement Jurassien and Unite Jurassiernne Switzerland No 8191/78, Commission decision of 10 October 1979, DR 17. See also Bukta and Others v Hungary Second Section, ECHR 17
October 2007.
29 Balcik and Others v Turkey (25/02) Third Section, ECHR 29 February 2008.
[63] In the Balcik case, the Turkish legislation at issue required 72 hours notice prior to the holding of any public demonstration. The Court noted that the requirement for notice served an important function. It said:
[49] … This being so, associations and others organising demonstrations, as actors in the democratic process, should respect the rules governing that process by complying with the regulations in force.
[64] But that was not the end of the matter. In Balcik the particular circumstances of the protest led the Court to find that the Convention had been violated. The Court said:
[51] ... there is no evidence to suggest that the group presented a danger to public order, apart from blocking the tram line. ... [T]he group in question consisted of forty-six persons, who wished to draw attention to a topical issue, namely the F-type prison conditions. ... [T]he rally began at about noon and ended with the group’s arrest within half an hour at 12.30 pm. The Court is therefore particularly struck by the authorities’ impatience in seeking to end the demonstration. ...
[52] In the Court’s view, where demonstrators do not engage in acts of violence, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance.
[53] Accordingly, the Court considers that in the instant case the police’s forceful intervention was disproportionate and was not necessary for the prevention of disorder within the meaning of the second paragraph of Article
11 of the Convention.
Discussion
[65] In the present case, the restrictions contained in cl 20.3.1 (which include the proscription on camping and erecting structures) are said to be all subject to a permitting regime, but no detail of that regime is apparent on the face of the Bylaw. A direct application of the decision in Zhang (which is, of course, not binding on me) might suggest that, to the extent those clauses place limits on “protest camping”, they are invalid.
[66] But that is not the end of the matter. Clause 20.3 must, I think, be read alongside cl 20.6. And although cl 20.6.1 (which directly places restrictions on protest) is also subject to a permitting regime, cl 20.6 also provides some (albeit
limited) further detail of the relevant permitting regime. For example, cl 20.6.4 states:
The decision to grant or refuse [an] ... events permit, together with any conditions on the ... permit, may be made in accordance with any relevant guidelines approved by the Council or specified under this bylaw from time to time.30 A ... permit may be declined where the proposal does not meet the relevant guidelines or where an authorised officer considers that appropriate standards of convenience, safety or visual amenity would not be met by granting the licence.
[67] And cl 20.6.9 provides that no event permit shall be issued where:
(a) there is a prior booking of the public place and the two events cannot reasonably take place at the same time, or
(b) the Council reasonably believes that:
(i) there will be significant disruption to traffic flows or public passage; or
(ii) public safety cannot be maintained; or
(iii) there is any other objectively justifiable and reasonable grounds for declining consent for example that the event will be or is likely to be offensive
[68] It seems to me that this clause goes some way towards making a link between the permitting regime and the objects of Bylaw 20. As the passage from Zhang at [57] above makes clear, the absence of any such link favoured the finding of invalidity in that case.
[69] It also seems relevant to note that the restriction on protest in clause 20.6.1:
(a) is limited to “organised” protest; spontaneous protest in a public place is not subject to the licensing requirement; and
(b)appears to contemplate that an exemption from the licensing requirement may also be obtained (although it is unhelpfully silent as
to the circumstances).
30 It is not clear to me whether any further, more detailed, “guidelines” have been promulgated by the
Council.
[70] There might, ideally, be more detail around the permitting regime, although I accept that such detail brings with it certain practical difficulties. On balance, I consider that:
(a) the limits on the operation of cl 20.6.1 referred to in the preceding paragraph; and
(b)the fact that the exercise of discretion by the Council under the regime is expressly linked to the objectives of the Bylaw.
means that cl 20.6 falls within the range of reasonable solutions to the “problem” at which it is directed, namely how to reconcile the “right” to protest publicly with the need to ensure that public space is available for use and enjoyment by all citizens. If that is so, then it can also be said that the relevant NZBORA rights are impaired as little as is reasonably possible by the Bylaw.
[71] I acknowledge that it might nonetheless be contended that, on the basis of Zhang, the difficulties with cl 20.3 (namely the apparent absence of any detailed policy or guidelines governing the grant of permits) remain. But it seems to me that in the context of protest activity it is cl 20.6 that will be the operative provision. Significantly, there was no equivalent of that clause in the Vancouver bylaw at issue
in Zhang.31
[72] The way in which cl 20.6 would, in effect, override cl 20.3 in the protest context (and, in light of my conclusion at [69] above, overcome any validity problem) can be seen from the following example.
[73] If the Occupy protestors had been minded to comply with the Bylaw and apply for a permit under cl 20.6.1, such an application would be required (by cl 20.6.3) to include in it all relevant information. That information would include,
presumably, that they proposed to erect tents and other structures and to remain in
31 I note that the Canadian “Occupy” cases have also distinguished Zhang, on a variety of grounds: Victoria (City) v Thompson above n 11 at 63]; Vancouver (City) v O’Flynn-Magee above n 11 at [42]; Batty v City of Toronto above n 26 at [117] – [120].
Aotea Square for a considerable period of time. If such an application had been made and declined under cl 20.6.9, then the possibility of a “camping” permit under cl 20.3 would not arise. Conversely, if such an application had been made and granted, then it would necessarily also authorise the activities that would otherwise have been a breach of cl 20.3.
[74] Thus, in circumstances where protest takes the form of any of the activities proscribed by cl 20.3, the operation of the more specific permitting regime contained in cl 20.6 effectively renders immaterial any NZBORA deficiencies that cl 20.3 might, on its own, possess.
[75] Having reached the conclusion that the clauses contained in Bylaw 20 minimally impairs the relevant NZBORA rights, I have little difficulty in concluding that the Bylaw strikes an appropriate balance between the public interest in regulating the use of public space and the public interest in preserving the rights in question, and in particular the public interest in permitting acts of political protest to occur within such space. I therefore conclude (on balance) that the restrictions on fundamental rights that are contained or implicit in Bylaw 20 are reasonably justified in a free and democratic society.
Was the enforcement of the Bylaw nonetheless contrary to NZBORA?
[76] Even if the relevant clauses in Bylaw 20 are not invalid, s 3 of the NZBORA also requires the Council to act consistently with the NZBORA. The appellants say here that the steps taken by the Council were not consistent, essentially because the application for the injunction:
(a) was precipitate;
(b) was an overreaction;
(c) was politically motivated (Ms Bright); (d) went too far in its terms.
[77] It is in relation to these contentions that the appellants take issue with aspects of the evidence given on behalf of the Council and with a number of the factual findings that underlay Judge Wilson’s decision. In the end, however, I do not consider it necessary to revisit his factual findings, for the reasons that follow.
[78] First, and to the extent those findings underlay the order to the protestors to disperse (which resulted in the Occupy protest being brought to an end in January
2012) the issues raised are arguably academic. Secondly, and regardless of many of those still disputed factual matters, there had undeniably been longstanding breaches by the protestors of (for example) the proscriptions in Bylaw 20 against camping and protesting without a permit.32 On any analysis there were good grounds for the Council taking action under LGA s 162.
[79] The question that seems to me to be of far more moment is whether the terms of the injunction sought and granted went too far, notwithstanding the Council’s and the Judge’s view of the facts of the matter.
[80] As I have noted above at [10], s 162(1) of the LGA authorises the Council to apply and the District Court to grant an injunction “restraining a person from committing a breach of a bylaw or an offence against this Act”.
[81] In the present case, the terms of the orders sought and granted restrained the protestors from “committing breaches of” the relevant clauses in the Bylaw. On its face, therefore, the order restrains not only the existing breach, namely the Occupy protest, but also any future breach by any of the protestors of any of those clauses. Thus a protestor who later (for example) used a loudspeaker or put up a poster in Aotea Square without a permit would not only be breaching Bylaw 20 but would also arguably be in contempt of the Court’s earlier orders.
[82] It is, perhaps, instructive in this respect to compare the terms of s 162(1) with the terms of its statutory predecessor, s 698(3) of the Local Government Act 1974,
which was differently phrased. It read:
32 It can, perhaps, be noted in passing that in each of the overseas jurisdictions that have considered enforcement action taken by local authorities in relation to the Occupy protests in 2011 the Courts have held in favour of the authorities: see footnote 26.
Where a person commits a continuing breach of any provision of this Act which is an offence to which this section applies, then, notwithstanding anything in any other Act, a District Court may, on application by the council, grant an injunction restraining the further continuance of the breach by that person.
[emphasis added]
[83] This narrower focus on stopping the continuation of an existing breach is in my view appropriate, particularly where NZBORA rights are at issue.33 All that was required to achieve the purpose of the Bylaw was an order that required the then- existing occupation of Aotea Square to cease. A much wider order is not necessary to achieve that end and, moreover, potentially has a chilling effect on the protestors’ future exercise of their rights to associate, assemble and freely express themselves. In my view, therefore, the injunction as sought and granted cannot be said to meet the minimal impairment standard and thus does not constitute a justified limit in
Oakes terms.
Summary
[84] In summary, I consider that:
(a) The clauses of Bylaw 20 at issue in this case prima facie interfere with the rights contained in ss 14, 16 and 17 of NZBORA and cannot be given an interpretation that is consistent with those rights in their “fullest sense”; and
(b)On balance, and having regard to the guidelines contained in cl 20.6 as to the grant of event permits, cl 20.6.1(a) (which in general terms provides that an event permit must be obtained before undertaking an organised protest in a public place) constitutes a justified limit on
those rights in terms of NZBORA s 5; and
33 At a broader level, the purpose and utility of an injunction that seeks to restrain future breaches of the law (for which there is a statutory penalty) might also be questioned.
(c) The fact that the restrictions in cl 20.6.1(a) constitute a justified limit on the relevant NZBORA rights obviates the need to consider whether the other clauses of the Bylaw can also be justified; but
(d)The general terms of the injunction sought and obtained also go further than was necessary in the circumstances and, insofar as the injunction purports to restrain future breaches by the protestors of the Bylaw, it cannot be justified under NZBORA s 5.
[85] The appeal is therefore allowed to the extent of my conclusion in [82](d) above. Counsel (including the counsel for the Attorney-General, if he wishes) are to file memoranda as to the terms of any consequential orders required. In particular, I wish counsel to address whether the injunction can simply now be quashed (in light of the fact that the occupation had ceased some 10 months before the hearing of this appeal) or whether it should be varied in accordance with the conclusions I have
reached.
Rebecca Ellis J
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