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Auckland Council boob-oo?
By Steven | August 15, 2008
Can the new Auckland Council bylaw requiring permits for (among other things) “any organised temporary activity including an organised gathering, parade, protest…” on public streets possibly be lawful?
Administrative law expert Dean Knight doesn’t think so. His terrific analysis concludes:
I am very confident in saying that, to the extent that the bylaw requires citizens to seek prior approval from a state body for a protest in a public place, it is patently inconsistent with the Bill of Rights and other fundamental common law rights, and is therefore unreasonable and invalid. There was, rightly, a public outcry a few years ago when Wellington City attempted to do this; it backed down. Also, it’s the very thing that many folk are pointing the stick at the Chinese government at the moment with the Olympics in Beijing. The requirement of prior approval is outrageous, particularly in the light of the restriction of protests and so forth.
Check out the Council’s flimsy Bill of Rights justification:
The council does not consider that the proposed bylaw is inconsistent with freedom of expression or freedom of peaceful assembly, or alternatively it considers that any limits in the bylaw are justified under section 5 of the NZBOR Act. The clauses do not prohibit the activities but rather impose reasonable conditions to ensure that those freedoms can be exercised in an orderly manner, and in a way that protects the public from nuisance, promotes and maintains public health and safety and minimises the potential for offensive behaviour in public places.
“Not inconsistent” with freedom of expression? It’s requiring a permit for a protest! The Council is giving itself power to refuse to allow a protest against it. This is like saying waterboarding isn’t inconsistent with the right to be free from torture. The real question is whether the restriction is demonstrably justified. The Council does address this, but after that start, it’s hard to have much confidence in its legal analysis. The fact that its section 5 analysis is one sentence long doesn’t help.
Dean rightly concludes that the extremely wide bylaw cannot be demonstrably justified, but thinks that a narrower one might be.
I’d add that the fact that the bylaw seems to have been aimed at the boobs-on-bikes parade means that the Council had a content-related motivation for passing the law – another reason the courts should treat it with suspicion.
Topics: Local government regulations, NZ Bill of Rights Act, Protest speech | No Comments »
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