Local Government (Freedom of Access) Amendment Bill

I move, That the Local Government (Freedom of Access) Amendment Bill be now read a first time. I nominate the Justice Committee to consider the bill.

I’d like to begin by acknowledging the member who introduced this bill into the ballot and, should it progress through further stages, will be in charge of the bill: Mr Jonathan Young, MP for New Plymouth. He has put a great deal of effort into addressing issues that he has both seen within his own electorate and observed across New Zealand. This is a delicate sort of a measure that seeks to strike a balance around the often competing rights between parties in the exercise of democracy.

Freedom of speech is a critical foundation of our democracy and it must be protected. In The Friends of Voltaire, Evelyn Beatrice Hall wrote, “I disapprove of what you say, but I will defend to the death your right to say it.” Those words speak to the very essence of freedom of speech—that such freedom is neither bound nor constrained in its exercise by the agreement to it by others. That essence notwithstanding, there are times when, in the pursuit of one’s goals, people can step, and have stepped, beyond the line where their pursuit of freedom has impinged upon the freedom of others, and that is what this bill is about. This bill seeks to better balance the rights of councils to protect property from being interfered with and to ensure that communities have freedom of access to lands that councils are responsible for administering, while ensuring the rights of members of the public to express their opinions in the form of protests and demonstrations on such land.

The New Zealand Bill of Rights Act 1990 guarantees citizens the rights to seek, receive, and impart information and opinions of any kind in any form, and the right to freedom of peaceful assembly. Those rights can be limited only if doing so is demonstrably justified in a free and democratic society. The exercise of such rights by protesters who erect structures and tents on council-administered land has been seen by some councils as akin to camping, something that not only prohibits the freedom of others to access the affected areas but also may present a health hazard. Such councils have, in some instances, resolved that that should not be permitted behaviour through by-laws.

Unfortunately, there is some ambiguity in the enforcement of such by-laws and trespass notices, particularly in instances where freedoms of speech and peaceful assembly are involved, and I will offer a couple of examples. Firstly—

💬 Matt Doocey: I raise a point of order, Mr Speaker. Can I just raise a procedural matter? I’ve just been advised by the Clerk around where this member’s bill will go. We’ve got an issue that the speaker at the moment—if he sits down without correcting this issue, it’s very hard to unwind, so that’s why I’ve taken this point of order now. I just want to clarify from the speaker whether this member’s bill will go to the Governance and Administration Committee, which the Clerk has been advised, or the Justice Committee, which he instructed at the start of his contribution.

Speaking to the point of order, may I have, please, a moment just to confer with my colleague, which may help to resolve this matter?

ASSISTANT SPEAKER (Adrian Rurawhe): Again, I’ll take some advice.

I’d just like to confirm for the House that the committee that I have nominated in my speech is the committee that is intended.

ASSISTANT SPEAKER (Adrian Rurawhe): Can you repeat that?

The committee that I nominated for consideration, which was the Justice Committee, is the committee that is intended.

ASSISTANT SPEAKER (Adrian Rurawhe): The member will need to seek a point of order to change the original statement.

No, I said it in the speech.

💬 Matt Doocey: That is the original—the Clerk just raised it.

ASSISTANT SPEAKER (Adrian Rurawhe): Sorry.

Thank you, Mr Assistant Speaker. So, again, on the example—the Dunedin City Council issued a trespass notice against Occupy Dunedin participants in early November 2011. The police issued—

💬 Hon Ruth Dyson: Is Governance and Administration poorly chaired? Is that the problem with it?

Well, I don’t trust the chair of that committee, Ms Dyson! We need impartiality in this matter. Dunedin City Council issued a trespass notice against Occupy Dunedin participants in early November 2011. The police issued a statement the following day, and I will quote, “Any power to trespass people protesting in a public place must be exercised reasonably and balance rights and freedoms. These are the issues we are currently working through with the council.” The area commander said that. He also said, “We understand the wider community’s frustration and recognise the competing interests who use this space. However we live in a democracy and we need to be sure that any power to trespass people protesting in a public space is exercised reasonably and lawfully.”

In a similar vein—around the same time, actually—there was also an Occupy protest in Wellington. A protest that was supposedly to last only a week lasted for over 100 days and took over one month to resolve after the Wellington City Council issued the first notice to have those particular protesters move on. The real point here is that the uncertainty of the application and enforcement of law, particularly council by-laws and trespass notices, in this area impedes authorities maintaining the balance of rights and freedoms for all parties.

The purpose of the bill is to ensure communities have freedom of access to land that councils are responsible for administering by preventing persons from obstructing, impeding, or preventing an enforcement officer or local authority agent from carrying out their statutory functions, duties, or other tasks required of them, including by refusing to provide particulars or providing false or insufficient particulars, and to widen the scope in which any enforcement officer may remove or seize property.

It is important to note, despite interjections from across the other side, that this bill does not infringe on the right to peacefully protest. It ensures the right of members of the public to express their opinions in protests and demonstrations but enables councils to prevent protests from becoming long-term, live-in occupations where tents and structures impede the use of the land by other citizens, potentially causing property damage and health hazards.

I do note that the Attorney-General has issued a report that concluded that the bill does appear to have some inconsistency with section 22 of the New Zealand Bill of Rights Act, “Liberty of the person”, such that cannot be justified under section 5 of the Act, on the basis that the power to arrest is arbitrary and that it appears to be without reasonable cause. The Attorney-General says, “In the absence of judicial supervision, for example through issuing a warrant for arrest, [he] cannot conclude that appropriate safeguards exist to mitigate against disproportionality.” I would also note that the Attorney-General goes on to say that the inconsistency could be remedied through limited amendment to the bill. This is clearly an area that the select committee could, and should, investigate further.

In conclusion, the bill seeks to address a delicate balance between the right to protest and the right for citizens to enjoy their public environment in a safe and peaceable manner. This will be an interesting bill to work through should it go to select committee, and I would expect and trust that we would receive a wide range of views at that committee. I ask that parties across this House will send this bill to the select committee so that New Zealanders can have their say. I commend this bill to the House.

In taking a call on the Local Government (Freedom of Access) Amendment Bill, I want to set out quite clearly that Labour does not support the progression of the bill or the ideas promoted in it. It’s unnecessary. Councils already have sufficient powers under the Local Government Act to address the concerns that this bill aims to try and alleviate. The bill allows police officers to arrest people that obstruct council enforcement officers, without a warrant. However, the Local Government Act already makes it an offence to obstruct council enforcement officers, but with the appropriate protections of the warrant process before an arrest can be made.

The sponsoring member of the bill, Brett Hudson, has highlighted some of the issues that the former Attorney-General had raised in relation to consistency with the New Zealand Bill of Rights Act, and I think, should it have the hope of going further, it is wise for the select committee to consider that advice.

It’s of interest that this bill isn’t going to the Governance and Administration Committee, which is where local government bills would normally go, so I wonder why that decision has been made in particular. Also, given that there are provisions within the existing Local Government Act available to councils, I think the justification for this bill would have to be more strongly put or we would need to see evidence, were this to go to select committee, through the submission process, that councils felt that there was sufficient need for powers to be extended. I certainly think that the bill is a retrograde step and, again, question the necessity of it.

If the bill was drawing on the Occupy protests that did occur around the country, and I know that reference was made to events in Dunedin—I happened to be in Auckland when Occupy protests were being conducted in Auckland. They were quite peaceful affairs, and they were actually quite festive. They didn’t hamper or hinder the public from being able to access parts of Aotea Square, and, in fact, what the protests did do was educate the public, as they passed through the area of protest, about the concerns of that particular group. It is important that New Zealand protects freedoms of speech and freedoms of protest, while maintaining a strong view around keeping lawful protest. Again, there are ways in which local government, within its own bylaw-making system and offence infringement provisions, can address the types of concerns that have been outlined by the sponsoring member.

I don’t recommend that the bill progress to select committee. I do hope, as the debate continues tonight and people put some rationale around the justifications of a need for measures of the sort promoted, that we get a bit more information as to the motivations. I recall two other significant protests, of which one was at Moutoa Gardens, that I can remember. In my recollection, again, it raised within the national sentiments some very strongly held views. People who went there went to try and understand what the issues were, and were educated along the way. Did it pose a personal threat or liability against the public citizen? No, and for those who attempted to go there with a genuine view to understand what the issues were, I think they were probably better educated about what was of most concern at the time.

So I didn’t want to take too long a call, except to say that, again, if we read the full consideration of the former Attorney-General, the Hon Chris Finlayson, and the advice that he provided on the bill, again one would want to question why a member from his own team would continue to sponsor a bill of this nature. On that basis, again, I reiterate, Labour doesn’t support the bill. We think that there are enough provisions available to local government to enable them, both on an offence and infringement and a bylaw-making regime, to be able to address the issues and the concerns that are motivating the sponsor to introduce a bill like this tonight.

Thank you, Mr Assistant Speaker. It’s a pleasure to speak on this Local Government (Freedom of Access) Amendment Bill. It’s in the name of Jonathan Young, who unfortunately can’t be here tonight to speak on this bill himself. As I’m sure all members will know, having a bill pulled out of the ballot and having the opportunity to speak on the first reading is a great thrill and an honour, and I’m sure he’s very disappointed to not be here. However, Mr Hudson ably stepped up and did the job for him in that first reading speech. I’m disappointed to hear that the Labour Party are not going to be supporting this bill. I think we differ in that I believe there is a need for this legislation.

Of course, freedom of speech is a basic tenet of our democracy, and we all, I think, agree with that. Having your right of freedom of speech and freedom of expression is always going to be difficult as to where you draw the line. I think one of the civil rights and political rights—one definition I’ve found in here is “The dual aspect of freedom of expression both acknowledges individual rights (that no one be arbitrarily restricted in expression) and implies a collective right to receive any information whatsoever and have access to the thoughts expressed by others. Expression need not be in words and may include symbolic expression, including actions and physical conduct.”

Obviously, some of those people that want to occupy public spaces are the case in point of what we’re talking about here. We’re not talking about, in this bill, stopping people from actually going through those processes, and there have been quite a few decisions. I’d like to quote Brooker v Police from 2007. Chief Justice Elias from the Supreme Court ruled, “A tendency to annoy others, even seriously, is insufficient to constitute the disruption to public order which may make restrictions upon freedom of expression necessary.” I can’t disagree with that, really. In R v Valerie Morse from 2009, in the Court of Appeal, Justice Glazebrook said, “it can only be in exceptional and extreme cases that the right of freedom of expression (and particularly the right to protest) can legitimately be curtailed through the medium of the offence of disorderly behaviour, at least when it is exercised in a reasonable manner.” I can’t disagree with that, either.

However, having these protests where people occupy land for public spaces for an extended period of time creates a health issue on occasion, and it does impinge on people’s right to actually enjoy those public spaces. If we look here in clause 5, which seeks to amend section 164 of the Local Government Act 2002, “Seizure of property not on private land”, after section 164(1) it would insert “An enforcement officer may seize and impound property that is not on private land if—(a) the property has been erected, placed, or fixed for longer than a period totalling 5 days in any given 12-month period; and (b) that erection, placement, or fixture was not done with the necessary consent; and (c) before seizing and impounding the property, the enforcement officer—(i) directed (orally or in writing) the person to whom the enforcement officer reasonably believed the property belonged to, to remove [that] property;”.

It goes through several more. We’re not talking about going up 10 minutes after the protest has formed and dealing with it. It’s in fact a very good go—if people have the opportunity to spend five days there, be warned to remove their property, and they don’t do it.

💬 Hon Andrew Little: What an appalling argument. What an appalling bill.

I think this is an excellent bill—

💬 Hon Clare Curran: Why not three days or 10 days?

—and I’d actually question the motives of what I’m hearing chirping from the other side, from a couple of squeaky wheels over there. They really don’t understand the issue.

💬 Hon Andrew Little: You don’t get to tell people how to exercise their rights.

I really would actually counsel the gentleman to try and calm himself a little bit. So it is with that I take great pleasure in commending this bill to the House. Thank you.

Ngā mihi nui o Te Tau Hou Pākehā. Happy New Year, Mr Assistant Speaker, and it’s my pleasure to take a call on this bill. Can I start by saying that local government is a bit of a strange beast, and usually—and in my experience—local government is used to getting hospital passes from central government, be it psychoactive substances or the Easter trading hours. But this bill, however, isn’t one of these strange beasts. This is strange in the sense that the title, the Local Government (Freedom of Access) Amendment Bill is misleading, and the word I was thinking of when having a quick read through this is that it’s actually deceitful. It’s deceitful in that it’s anti-freedom: anti-freedom of speech and anti-democracy. It’s anti-protest, but most of all, and the crux of this, is it’s anti-occupation, and I think what this is really about is an attack on a particular type of protest, and that is occupation.

Look, I was told, and I won’t say by who—but this even originated from Nelson, that beautiful, sunny, I guess, holiday town, or city, as they would like to call it. But it originated out of there, and when I got it told to me, I then quickly thought about other occupations, and Minister Mahuta has talked about Moutoa Gardens and Pākaitore from the mid-1990s. What would New Zealand be like if they couldn’t have the opportunity to express their concerns? No Occupy movement. So a global movement, yes, came to New Zealand in 2011 or thereabouts, and I’m even thinking, you know, the five days—well, it seems a long period of time, but, in fact, when you’ve had lifelong issues, five days is simply nothing.

I want to reflect on Wellington City Council, for example, where the Occupy movement was. And, yes, I think this was more about that people just didn’t want to see this side of life; they didn’t want to really confront the issues. But isn’t it interesting when an urban local authority like Wellington managed it in a way where those people were there for nearly a year, if not more? I couldn’t find the exact reference, but my point is this: was Wellington as a city worse off by having a group of people—and there were roughly 20 at the end there, in 2012—who, yes, occupied a piece of grass on civic land, on public land there in our Civic Square, because they wanted to get across a certain point. How was Wellington, for example, impacted by that? Was it any worse off? Did it look a bit ugly? Yeah, it did. From a branding perspective, you know, there were things not quite right, but the city didn’t lose any jobs over it, the GDP didn’t drop, we didn’t lose any major conferences or venues. In fact, people were proud of Wellington when they knew that it had reached little old New Zealand—the Antipodes, dare I say it—and they were given the opportunity to make their point.

So I’m a little miffed around what the real purpose of this bill is. I think it’s just something that people just don’t like seeing. A couple of comments were made about, “Ew! We don’t want to see that.”, but, actually, when we look back at the history of Aotearoa New Zealand, we are a country that’s been built on protest, that’s been built on giving people the opportunity to have their say, and I’m proud to be part of a party that’s going to say, “No, this is inappropriate, considering the Local Government Act already gives officials the power to do what they need to do.” And we will continue to see the not so nice. It doesn’t look good. But the fact is, and the point is, that their messages about lifelong issues, for some of them, will be able to be articulated and communicated in public spaces. So I support this bill, as does our party. Kia ora.

Thank you, Mr Assistant Speaker. There are three reasons that I do not support the member’s bill. First of all, the title is rather misleading. It is not about freedom of access. Instead, it gives additional powers to councils and enforcement agencies to stop and remove protests on public land lasting longer than five days. So it is not about freedom of access; it is about how to stop freedom of access.

Secondly, and more importantly, the bill appears to be inconsistent with section 22 of the New Zealand Bill of Rights Act 1990, which is about liberty of the person, and cannot be justified under section 5 of that Act, according to a report by the Attorney-General at that time, the Hon Christopher Finlayson QC. The Attorney-General’s report says the power to arrest without warrant “is arbitrary, in that it appears to be without reasonable cause. It is unclear why this power is required, as it does not appear to be directly linked to the overall purpose of the Bill”.

Thirdly, the bill in question is unnecessary as councils already have sufficient powers under the Local Government Act to attend the concerns this bill seeks to address. The bill allows police officers to arrest people that obstruct council enforcement officers without a warrant. The Local Government Act already makes it an offence to obstruct council enforcement officers, but with the appropriate protections of the warrant process before an arrest can be made.

Also, councils already have the necessary power under the Local Government Act and are able to seize and retain property that is in a public place in breach of a by-law. So, therefore, I do not recommend that this bill be progressed.

I rise to speak on the Local Government (Freedom of Access) Amendment Bill, first reading. I would like to support the bill to go to the select committee. New Zealand is a democracy, and we are very proud of being New Zealanders here. Now, a democracy means government by people. For that reason, people have the right to protest, and freedom of expression is a core foundation of democracy. So we all understand that.

Also, democracy means a state of society characterised by formal equality of rights and privileges. So that means that while we are trying to protect the freedom of expression, at the same time, we need to make sure the rights and privileges of other citizens can be protected. So protesters should also respect other citizens’ rights and privileges. This bill is an effort to somehow have a better balance—a better balance—between people’s rights to protest and demonstrate on council land and the right of councils to protect their property and to ensure that communities have freedom of access to their land.

So this is needed because, at the moment, our law is not clear enough for people to reach that kind of balance. There is some confusion, even for police, over people’s rights to use public land for different purposes. For instance, the New Zealand Police made it clear that they do not have a clear position on enforcing council by-laws that may also appear to be repressing peaceful, democratic protests. Now, many councils have by-laws preventing unlawful erection of tents, fences, and structures on council-owned land, so these by-laws can be hard to enforce because it is not clear how to strike the balance, as I mentioned above.

The honourable member Brett Hudson mentioned Occupy Dunedin in 2011, and I looked online, actually: the protesters occupied the Octagon for 66 days. So events like this, while they were exercising their rights as citizens of New Zealand, at the same time, could cause some issues, not only in terms of safety but also in terms of health issues. So this bill specifies the conditions to seize and impound property that is not on private land.

For instance, here it says that “An enforcement officer may seize and impound property that is not on private land if—(a) the property has been erected, placed, or fixed for longer than a period totalling five days in any given 12-month period; and [also] (b) that erection, placement, or fixture was not done with the necessary consent;” and some other conditions. So, by doing so, this bill actually widens the scope in which an enforcement officer may remove and seize structures that have been erected on council property.

So, basically, this bill is an effort—a good effort—to try to strike a better balance between the right to protest, to protect freedom of speech, and, at the same time, to protect the rights and privileges of other citizens. So I commend the bill to the House. Thanks.

E Te Māngai, tēnā koe. Tēnā koutou e Te Whare. It is my pleasure to stand and talk on this bill, the so aptly—and rather incorrectly—named Local Government (Freedom of Access) Amendment Bill. The reason that it is such a pleasure to stand and speak to this bill in its first reading is that it was fascinating to hear Brett Hudson, the National Party MP, introducing this piece of legislation into the House by asking members to vote it through to select committee, where we could hear our concerns borne out.

Now, on that point, you know, I’m not renowned for my memory, but that strikes me as an argument that I do remember using earlier this evening with regard to my own member’s bill. That itself was a conscience vote, and I think where it is important that we do see those concerns borne out in select committee is where we have those concerns, where we are unsure about where legislation should be progressing. But on this point, on the point of the right and freedom of protest, I am not unsure, and nor is the Green Party of Aotearoa New Zealand. Aotearoa New Zealand was built on protest, and so too was the Green Party of this country. There are a number of different examples throughout our history that have seen our democracy be strengthened by way of people’s ability to protest, to voice their dissent, to organise and congregate in collective action—to occupy.

Long story short, there is a difference between Crown law and natural justice. Governments do not always get it right, and, in fact, they sometimes make a real pig’s breakfast of it, and we all need to play catch-up as soon as we hear those issues from the people in this country that we seek to represent. I think a great example of that, really, is the vote experienced earlier today on my member’s bill, where we found that 78 percent of New Zealanders are in support.

Debate interrupted.

The House adjourned at 10 p.m.