Rotorua District Council proposal to ban serial offenders from the CBD

The Rotorua District Council has resolved, I understand, to ban serial offenders from its CBD. The details of the proposal are somewhat sketchy (I am awaiting a LGOIMA request for the Council reports) but it appears the proposal is to delegate to the Police the power to issue trespass notices on their behalf. I’ve been reflecting on the propriety of such an approach. The principal question is whether such an approach is Bill of Rights consistent. The ability for public bodies to issue trespass notices in relation to public land has been addressed, to a certain degree, by the courts. The courts have indicated that any power to issue trespass notices in respect of public places is tempered by the Bill of Rights. That is, the issuing of a trespass notice must not amount to an justified limitation on a person’s freedom of movement protected under section 18(1) (“(1)Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand”) and freedom of peaceful assembly under section 16. The High Court in Police v Beggs [1999] 3 NZLR 615 said:

The statutory right given to the occupier to warn, in circumstances where the act of warning is being performed by a person or body performing a public function, may limit the right of assembly in s 16 of the Bill of Rights. The power or right to warn can be given a meaning consistent with the s 16 right of assembly by application of the standard of reasonableness. Because such an act limits the rights and freedoms contained in the Bill of Rights, such limitation must be reasonable in terms of s 5. The exercise of this statutory power can be resorted to only when reasonably necessary. … What this case involves is determining and applying the proper test to the exercise of the power of a public official … to warn, because the warning limits rights and freedoms contained in the Bill of Rights. ... Our view is that the exercise … of the power under s 3 of the Trespass Act must be reasonable, both in the manner of its exercise and in the prevailing circumstances.

In the local government context, the District Court quashed trespass notices issued to vagrants in Glover Park in Wellington on the grounds that insufficient consideration was given to the Bill of Rights and the notices were not Bill of Rights consistent (Police v Ngeru and Others (02.08.2004, Wellington District Court, CRI 2004-085-2534, Judge Davidson). In short, although a power may exist for local authorities to issue trespass notices in respect of public spaces (or to delegate that power to another body such as the Police), any notice must be Bill of Rights consistent. (Personally, I have significant doubts about whether, in principle, trespass notices ought to be issued in respect of public spaces, particularly those which are genuinely public spaces, not just publicly owned private spaces – but that point needs further examination.) On the question of whether this measure is Bill of Rights consistent, I have been in two minds but ultimately I think the proposal is not consistent with the Bill of Rights.

Clearly there is a prima facie infringement of the freedom of movement. (I differ from others who contend the proposal violates the protection against retrospective criminal penalties. See my previous analysis of retrospectivity in the context of taxi drivers and sex crimes.)

The infringement must be a reasonable limit on that right within the meaning of section 5 of the Bill of Rights, that is, it must be necessary, suitable and appropriate. In the words of the Court of Appeal in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9:

In determining whether an abrogation or limitation of a right or freedom can be justified in terms of s 5, it is desirable first to identify the objective which the legislature was endeavouring to achieve by the provision in question. The importance and significance of that objective must then be assessed. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledgehammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective. Of necessity value judgments will be involved. In this case it is the value to society of freedom of expression, against the value society places on protecting children and young persons from exploitation for sexual purposes, and on protecting society generally, or sections of it, from being exposed to the various kinds of conduct referred to in s 3 of the Act. Ultimately, whether the limitation in issue can or cannot be demonstrably justified in a free and democratic society is a matter of judgment which the Court is obliged to make on behalf of the society which it serves and after considering all the issues which may have a bearing on the individual case, whether they be social, legal, moral, economic, administrative, ethical or otherwise.

In this case, there is a clear objective (suppression of criminal offending from a core group) and there is a rational relationship between the objective and the measure (that is, removing repeat offenders from the area in which they have traditionally offended is rationally connected to the objective of reducing that crime committed by that group). However, I think ultimately the measure is disproportionate to the objective. While there is a degree of narrow tailoring of the measure to the objective (more so than in the Wanganui gang patches ban proposal), I think the fundamental nature of the public space in question, ie roads (including footpaths), mean that the negative effect of the measure outweighs its positive benefits. The fundamental right of people to pass and repass on roads has been recognised by the common law and is augmented by the statutory provisions in local government legislation. 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. For this reason alone, I think the proposal therefore fails the Bill of Rights consistency test. Trespass notices are just too blunt a tool to address the problem.

If, however, the measure was undertaken by a bylaw and focused not on the passing through public spaces, but instead the *loitering* in public spaces by repeat offenders, I think there is then a stronger case for Bill of Rights consistency. I still have an open mind on whether a more tailored solution is permissible.

Apart from Bill of Rights consistency, I have a number of additional concerns about this type of regulation:

It seems to me that this type of regulation is more appropriately addressed through a Council’s law-making powers, ie through a bylaw. These processes more explicitly provide protection mechanisms to ensure appropriate regulation (such as public participation and a Bill of Rights vet). They also allow greater harmony with the other provisions governing the regulation of roads.

The decision appears to have been made without any public participation. If a coercive measure such as this was adopted through a bylaw, such consultation would be required. In any event, I wonder whether a decision such as this triggers the Council’s own policy on significance (proposals which are significant are required to be included in the Council’s long term Council community plan – which ensures public participation). The Council’s own policy requires the Council to consider, amongst other things, the following when assessing whether a proposal is significant and ought to be subject to public consultation:

The parties who are likely to be particularly affected by, or interested in, the issue, proposal, decision or matter and the likely impact/consequences of the decision from the perspective of those parties (including if the decision is likely to affect a large number of residents and ratepayers to a moderate or greater extent; or a small number of residents and ratepayers to a large extent);

I would have thought this proposal triggers the latter threshold. NZ Herald: Rotorua council votes to ban criminals from city centre National Radio: Vote To Ban Repeat Offenders