Monday, July 31, 2006

Punishment without trial in Rotorua

What is it with local government and authoritarianism? First, we had Manukau City Council trying to get permission for draconian bylaws against graffiti and street prostitution. Then we had Wanganui City Council trying to get a bylaw allowing them to ban gang patches - a clear breach of the freedoms of expression, association, and movement. And now we have Rotorua District Council wanting to issue trespass notices against "serial offenders" barring them from the city's CBD. Under the Trespass Act 1980, anyone violating such an order would be liable to up to three months imprisonment. The move has the full support of local police, but then, it would - it allows them to dispense with the whole messy business of collecting evidence and proving cases, and allows them to punish on prejudice rather than proof.

The proposal violates various sections of the Bill of Rights Act, including the freedom of movement and ban on retroactive penalties, but at its heart it is something more sinister: punishment without trial. And this is not something we should be allowing in New Zealand. If the Rotorua police want to "keep criminals off the streets", they should do their fucking job and prove them guilty beyond a reasonable doubt before a jury of their peers - not try and do an end run around the entire legal process.


Hmmm, I may have to revise my 'New Zealand is paradise' line.

I have this Belgian guy and I'm a kiwi living in his world, talking about 'my people' as something special and telling him that 'when we go home ...'

I feel like doing one of those Homer-type 'Doh's'

Posted by Di Mackey : 7/31/2006 06:51:00 AM

Its also a pretty cynical manipulation of people's fear of crime. The article talks about "public safety" but the people they are talking about banning are those who have comitted dishonesty offences presumably things like shoplifting or breaking into cars. Their real "crime" will no doubt be something like "lowering the tone of the area" or "loitering while being young and brown."

These people can and should be dealt with with the existing powers that are available. Retailers already have the ability to issue tresspass notices for their individual shops and the other crimes can be dealt with with things like increased police or community patrols and crime cameras.

Of course the Rotorua police are probably too busy investigating their own historic sex crimes to have enough bobbies on the beat to do this so I can understand them needing to lighten their workload a bit. Far easier to stop members of the public using public space.

Posted by Michael : 7/31/2006 07:01:00 AM

One hopes the BORA has enough teeth to eviscreate this kind of b/s.

Posted by dc_red : 7/31/2006 08:31:00 AM

I don't understand the Trespass Act - can any of you law students out there clarify.

Can one trespass on a public place?

As the "occupier" of my office, if I'm the first one in in the morning, can I serve a trespass order against my boss if I don't want him to come in the building?

Can squabbling flatmates get trespass orders against each other - and is it "first to fire wins" or do you have to produce grounds - there doesn't seem to be anything about existing rights of access?

Posted by Rich : 7/31/2006 10:08:00 AM

rich - one can certainly trespass on a public place, if one has been validly served a valid trespass notice.

Criminal trespass is the offence of trespassing on a place after having been warned to stay off. You will note I used the word trespassing in my definition - it denotes the civil concept of trespass (in the 'I'm not allowed to go onto your land without your express or implied permission' sense). Someone can commit a civil trespass (for which damages may be a remedy) without committing a criminal trespass. Criminal trespass is the act of civil trespass, with the addition of ignoring a warning to leave (which can be oral or written, and can be given in advance)

If you have a right to be somewhere (as your boss has a right to be in your office) then you cannot commit a civil trespass, so even if you are warned to leave ('given a trespass notice') you aren't committing an offence.

As a flatmate of someone you don't have to produce grounds to trespass someone out of your house, however a trespass notice (attempting to make a civil trespass a criminal matter) will have no effect if the person who is warned to leave has a right to be there (because, for example, they've paid two weeks' rent in advance or have a flatmate/sub-tenancy agreement which requires a certain notice period).

There is nothing express in the Trespass Act about existing rights, but that is because it uses the word 'trespass' in its well-defined common-law sense (which incorporates all the ideas about rights of access you would expect).

But back to the case at hand. District Councils can certainly issue warnings under the Trespass Act in relation to property they occupy (and probably do with some regularity over members of the public abusing reception staff etc.)

Under s 316 of the Local Government Act 1974, roads (other than Government or private roads, or state highways etc.) are the property of the council in which they are situated (this would include the roads in the CBD).

Assuming no-one else can be classed as the lawful occupier of the roads etc. in the CBD then the council will be able to issue trespass warnings. However, the same caveats will apply to a trespass warning issued by a district council as by anyone else - if the person in receipt of it has some pre-existing right to be at that place then he or she will not be committing a criminal trespass (as they won't be committing a civil trespass).

Moreover, as bodies performing public functions within the definition of the New Zealand Bill of Rights Act the council and the police, in the course of issuing tresspass notices (or other warnings under the Trespass Act) are required to ensure their actions in so doing do not constitute unreasonable limitations on the rights of any New Zealander. If, in the course of issuing a trespass notice a council acts in breach of the Bill of Rights Act its actions would be unlawful (and any trespass notice would be invalid). The Beggs decision, in which the Court of Appeal ruled invalid the exercise of Parliament's Speaker's issuing of warnings under the Trespass Act against student protesters basically validates this - the Speaker (and the Police acting on his behalf) was required to consider the rights of peaceful assembly and free speech of protesters when considering issuing a warning under the Trespass Act, and this analagously extends to other rights and other contexts.

As the discretion to issue a trespass notice by either the Police or a district council can only be exercised in accordance with the Bill of Rights Act, I/S is wrong to suggest that this proposal violates BORA. There is nothing wrong with the council limiting the rights of movement of citizens if those limits (on any individual or generally) are justifiable in a free and democratic society. Indeed, under the Trespass Act they already have the power to issue trespass notices, including in relation to the CBD.

The change mooted here is for the council to delegate its powers under the Trespass Act to the police, in relation to the limited set of individuals circumstances who have five convictions for dishonesty offences in the CBD in the past five years.

The circumstances in which the council can presently exercise its powers under the Trespass Act to ban a person from the entire CBD are severly limited (by BORA), and this severe limitation will apply to police exercising this power in the event the council delegates it to them. But if such circumstances can be found (I can't imagine any) then the Council, and by extension, the police, will not be acting illegally in exercising them.

I'll add, that for reasons I may discuss later, that this is not a retroactive penalty in terms of s 26 of BORA.

Posted by Graeme Edgeler : 7/31/2006 01:22:00 PM

Interesting. That does clarify things.

Is thgere no concept of a "right-of-way" in NZ? (In England and Wales, all public roads, as well as footpaths and bridleways are rights of way and everyone is entitled to (at least) walk along them. Furthermore, if you allow people to use a route across your land for (I think) 20 years, it becomes a right of way. [hence you see signs asserting private ownership of alleys and so on]).

Owning the roads as private property seems to me to give councils a lot of power. They could for instance sell their CBD to a private developer who could "gate" it and control access!

Posted by Rich : 8/01/2006 09:49:00 AM

There isn't really a common law concept like right of way in NZ, no, but certain laws can apply to privately-owned roads that are used by the public. And rights to freedom of movement in the Bill of Rights Act, with the fact land is publically owned mean no-one can stop us walking down a footpath.

Sorry if I put you a little wrong, council's don't own the roads in the same way they own stadiums etc. A council could not sell the roads in its CBD - the roads in its CBD are owned by the council by virtue of the (former) Local Government Act, if it tried to sell those roads I suspect (i.e. there isn't a case to back me up because no council would try to sell its roads) that the law would still mean that they were owned by the council.

Any decision of the council to try to sell public roads en masse would also have to be consistent with the council's obligation to uphold the rights of people lawfully in NZ to freedom of movement.

Posted by Graeme Edgeler : 8/01/2006 10:41:00 AM

Rather than repeating my comments here, I've set out my analysis on my blog:

Posted by Dean Knight : 8/02/2006 12:08:00 PM

I'll be adding more thoughts at some time in the future, but note some of your concerns seem to be allayed by this quote from the NZ Herald:

"The trespass orders would be issued to people who were convicted of a dishonesty offence in the CBD and were then found to have at least five similar dishonesty convictions in the past five years."

Certainly not retrospective, and not punishment without trial either...

Posted by Graeme Edgeler : 8/03/2006 10:33:00 AM