Friday, August 04, 2006

Rotorua, trespass, and the BORA

Dean Knight has an excellent post on the Rotorua Disrict Council's plan to punish serial criminals without trial. While he disagrees on whether the punishment is retrospective (its clearly a punishment, and it didn't apply at the time of the offence, which makes it clearly retrospective; in addition, it is being applied after conviction and in addition to any sentence imposed, by an entirely seperate process, making it double jeopardy as well), he concludes that it almost certainly violates the BORA's affirmation of freedom of movement. On the way, he says better than I've been able to what is wrong with using trespass notices to bar people from public streets:

The ability to use roads and footpaths facilitates so many other basic citizenship rights and activities that people undertake, ie travelling to the dentist, shopping for food, walking to the City Council to exercise civic participation rights etc. In contrast to issuing trespass notices to a discrete, demarcated space like Parliament which is effectively self-contained, trespass notices issued in relation to the network of roading and footpath infrastructure prevents a person from entering spaces which they are not prohibited from entering. The flow-on effect of trespass notices is so much greater than their actual scope.

While we're on the subject, several news stories have mentioned a similar attempt to use trespass orders in Kaitaia in the 90's. I've done some digging, and the only place I can find any mention of it is in New Zealand's Third Periodic Report under the ICCPR. According to this, it happened in 1993 and was known as the "Kaitaia Shoplifter Trespass Notice Scheme". Shopowners in Kaitaia clubbed together and authorised the police to issue trespass notices on their behalf to anyone apprehended for shoplifting - meaning that accused shoplifters would be barred from every participating business. The police ended their participation in the scheme after the Solicitor-General gave an opinion that it was

an abuse of police power because its application was excessive and out of proportion to the risk of further offending by those involved, and because the conditions required by s4 (2) of the Trespass Act were not met in all cases.

I've sent out a couple of OIA requests seeking further information on this, but if the police can't use trespass notices to keep suspected criminals out of only participating stores, then its difficult to see how they can use them to bar people from public streets.


And to play the devil's adovate here... what about the right of businesses and individuals to be protected from serial offenders? People whose behavior has demonstrated their inability to be law abiding. Perhaps if people didn't want to be banned from the CBD they could stop committing crime, no?

Posted by Muerk : 8/04/2006 05:43:00 PM

Muerk: if these people are such recalcitrant criminals who are guaranteed to offend, then the police should have no trouble building a case, proving it beyond a reasonable doubt, and securing a conviction, neh?

The problem is that the police, for whatever reason, are not doing that. And the solution is for them to do their bloody job properly - not to erode the fundamental safeguards we have limiting the exercise of state power.

Posted by Idiot/Savant : 8/04/2006 06:00:00 PM

The proposal, as I understand it, is not retrospective.

It may be objectionable for a number of reasons, but this is not one.

Dean's discussion over the legalities of what actually is a retrospective punishment are correct, but moreover the particular scheme in this case wouldn't qualify even if he is wrong.

Rotorua's proposed scheme applies only to criminals convicted in the future of dishonesty offences in the CBD, who, having been convicted (in the future) are then found to have had at least five previous convictions for dishonesty offences in the CBD in the previous five years.

Someone with 100 convictions for dishonesty over the past one year will NOT be affected by this scheme, unless/until they are convicted again.

I'll add for the sake of completeness that it is not obviously punishment, nor double jeopardy, it is not a criminal sanction, it is a civil sanction, much like a police officer caught drink driving losing his job - did the court order him to forfeit his job in convicting him? no. By an entirely separate process, and in addition to the sentence imposed he loses his job.

A more apposite example. Bob is suspected of stealing from the Warehouse. Bob is convicted, and in addition to the fine and reparation ordered by the court, the owners of the warehouse serve a trespass notice on him. This is not double jeopardy.

And nor is it if the occupier of the land is the council or another public body. There are questions over whether a council can issue an effective trespass notice over the CBD, but the additional BORA-rights you invoke are not relevant.

Posted by Graeme Edgeler : 8/04/2006 07:53:00 PM

Graeme; The BORA right to freedom of movement is relevant, i assume you mean the the right to non-retroactive punishment is irrelevant?

The empowering legislation must be given a BORA consistent meaning if possible (which is the case). As such, the council has no legal right to prohibit free movement, and any subsequent prosecution will be defeated. Which means it is only a waste of time and money.

Our criminal justice system stigmatises individuals. This increases the levels of exclusion, meaning many of the people we tag as 'criminals', can only realistically interact with others similarly branded, after they are spat out the other end of our 'justice' system. This is a big part of the problem.

Rotorua's plans would in fact increase crime long term. What's that saying about the road to hell and good intentions.

Posted by james cairney : 8/04/2006 08:32:00 PM

james - yeah - that's the point I was trying to get across - when I said "additional BORA-rights" I meant additional to freedom of movement, not additional to arguments around trespass - thanks for helping me avoid further confusion...

Posted by Graeme Edgeler : 8/04/2006 09:40:00 PM

Graeme: they're not planning to do this only to those convicted in future; media reports have consistently cited police as saying that they have a list (initially "20 to 30", now "10") of people they intend to issue notices to immediately.

As for civil sanctions not being "penalties", those things are punishments - its just that private bodies (and government departments acting as such - e.g. as employers rather than in the exercise of a public function), aren't subject to BORA limits. But this isn't a private body we're talking about - it's local government - and they're doing so ostensibly for the very public purpose of maintaining law and order. Trying to draw a distinction here between civil and criminal "sanctions" is both bogus, given the purpose and effect (the orders will result in a significant limitation of liberty), and smacks of an attempt to make an end-run around the proper limits of justice.

Posted by Idiot/Savant : 8/04/2006 11:23:00 PM

Government Departments acting as employers are required to abide by BORA. The "public function" test only applies to bodies under s 3(b), not s 3(a) of BORA.

Media reports have been anything but consistent - I was basing my argument on the fullest look the Herald took at the matter:

"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.

They would not be retrospective and would last three months."

But, you're right, who knows, really?

Even if I'm wrong about the particular form this proposal takes it does not breach s 26(2) of BORA. It is not retrospective. It only applies in the future. It does not change the past.

Moreover, the Court of Appeal has noted "[section 26(2)] is referable only to penalties imposed as part of the criminal process." Issuance of a trespass order is not a part of the criminal process (just like how proceedings before the Law Society (BORA-bound) for a lawyer convicted of fraud are barred).

I disagree that the distinction is bogus. We just have quite enough (BORA right to freedom of movement, general principles of administrative law etc.) to attack this proposed exercise of power without resorting to legally indefensible arguments.

Posted by Graeme Edgeler : 8/05/2006 01:18:00 AM

Hi Graeme; the council regulation will be ultra vires the empowering legislation, when the legislation is given a BORA consistent meaning, if such a meaning is possible. Nothing in the empowering legislation expressly allows the council to impede the BORA right to free movement, so the bylaw is a waste of time and money, as the council do not have authority to so act.

Further, the test for justification is that the limit to the right must be the absolute minimum limit required to obtain the desired objective. In this case there is so many alternatives that do not trample on rights that the notion that this regulation has teeth is laughable.

I do not necessarily agree that it constitutes retroactive punishment, and I fail to see how it is relevant anyway, given the lack of council power to breach such rights.

Dean's argument, while strong, focuses on Moonen and Beggs, which concerned clashes between the BORA an ordinary legislation. Here, the clash is between the BORA and delegated legislation, and I think Drew v A-G is more analogous. In Drew it was held that Prison authorities had no right to deny legal representation to prisoners facing disciplinary proceedings, despite prison regulations expressly stating they could, as the legislation did not expressly authorise regulations that breached the BORA right to natural justice. The same is true in this case, yet regarding free movement.

Posted by james cairney : 8/05/2006 09:48:00 AM

James - The council has not proposed a bylaw or regulation. It is rather asserting it has a power under the Trespass Act to issue trespass notices over areas it owns (which it clearly does), and that the areas it owns for the purposes of the Trespass Act include the roads and footpaths in the CBD (which is not clear, but arguable).

The resolution of the council was to devolve to police the power to grant Trespass notices on its behalf, in relation to a limited set of people, over a certain area. I cannot see how this would breach BORA. The Trespass Act does not breach BORA, because there is a BORA-consistent interpretation to it - that trespass orders cannot be issued in circumstances that would amount to an unjustifiable limitation on a person's rights.

This is where Beggs is relevant. The Speaker had devolved to the police the power to issue trespass orders, but that didn't mean they could issue trespass orders in breach of the Beggs et. al.'s right to peaceful protest. This is how I see any BORA argument unfolding in this case - if the council is the lawful occupier of the CBD, then it's decision to devolve its power to issue trespass orders will be BORA-consisten, but just cannot empower the police to issue BORA-inconsistent trespass notices on its behalf.

A bylaw making it illegal for a person with five dishonesty convictions to be in the CBD would definitely be ultra vires - and you don't need Drew - s 155(3) of the Local Government Act is enough.

Posted by Graeme Edgeler : 8/05/2006 10:25:00 AM

"Muerk: if these people are such recalcitrant criminals who are guaranteed to offend, then the police should have no trouble building a case, proving it beyond a reasonable doubt, and securing a conviction, neh?"

True. But they would have to commit a crime first. I assume the creators of this plan want to prevent crime, rather than have police mop up after it occurs.

Personally, I'm divided on this issue. I certainly acknowledge your points but it seems "common sense" to me that banning people who are obviously serial criminals from the CBD will drop crime in the area.


Posted by Muerk : 8/05/2006 11:36:00 AM

Graeme; firstly I apologise, my understanding was that this was a proposed regulation. You are therefore correct, that the council does have a prima facie right to issue notices, as per Beggs.

Still, the notion of trespass notices- for roads- leaves (in my opinion), room for only one conclusion. That is, the council, as occupier, has not exercised the power in a BORA consistent manner. This requires a balancing act, and the council must show the infringement of the right to free movement was the minimum limit necessary to achieve their goal, I argue that that would never be the case.

Posted by james cairney : 8/05/2006 01:02:00 PM

The whole idea is ridiculous however one looks at it.

Who defines the CBD? Probably the council via the District Plan i smy guess. What if the Council decides to enlarge the boundaries of the CBD so as to push these people out even further?


Posted by Gooner : 8/06/2006 05:37:00 PM

"and that the areas it owns for the purposes of the Trespass Act include the roads and footpaths in the CBD (which is not clear, but arguable)."

Graeme, James,

The legal discussion above confuses me.

Can you please break this down into parts.

1) I can, legally, issue a trespass notice banning Peter Cresswell and David Farrar from my property.

2) Can I do so legally without any reason?

3) Can the Auckland City Council legally issue a trespass notice banning Peter Cresswell & David Farrar from any roads or footpaths within Auckland city?

4) Would they be acting legally if they did so without any good reason?

I know it's illegal for them to do so for the _wrong_ reason - they couldn't, for example, attempt to ban all Maori from being in Auckland. So is this about their legal powers to run people out of town, or about whether this counts as "the wrong reason"?

Posted by Icehawk : 8/17/2006 09:25:00 AM

Icehawk - only just noticed your question:

1) Yes.
2) No. You would need to have reasonable cause to believe that PC and DPF were likely to commit a (civil) trespass on that property in the future.
3) No-one quite knows - I argue yes (but subject to 4, below), others argue no. Certainly councils can issue trespass notices over council buildings, and places like public parks.
4) No they would not. They would need a very good reason.

Posted by Graeme Edgeler : 8/21/2006 04:03:00 PM