Local Government (Freedom of Access) Amendment Bill

I stand to finish my contribution to the ironically titled Local Government (Freedom of Access) Amendment Bill. I’ve only got about two minutes left, as you note, to articulate the rationale behind the Green Party’s opposition to this bill. My contribution today to this debate builds on that which I spoke of on the evening of our last members’ day, across the sands of time, on the evening of 31 January. This House rose in the middle of the point I was making about my own member’s bill that had been voted down previously that day. My point related to Parliament’s fallibility. I was speaking to the fact that while 78 percent of New Zealanders were in support of growing and/or using cannabis for any medical reasons, such as to alleviate pain, only 39 percent of this Parliament in a conscience vote voted for that.

This is an example of the divergence of the views of our public and our Parliament. That is valid and it is fine and, arguably, also to a certain extent, healthy. However, it is only healthy so long as the public can express their difference of opinion with this House and seek to push us as their representatives to update our views.

Historically, an incredibly effective way of voicing this difference of opinion, of mobilising for change, and of generating public discussion, is through protest, which brings me back to this bill. This bill fundamentally, systematically reduces the power of the public. It reduces citizens’ ability to collectivise, to congregate, and to make their voices heard.

I want to make it abundantly clear that this proposed piece of legislation will also have a disproportionate effect on Māori protest, of which we have a rich history. In 1977, Ōrākei Māori Action Committee occupied Bastion Point for 506 days, more than 200 protesters ended up being arrested, and 10 years later the Waitangi Tribunal supported Māori claim to the land and the Government supported it.

💬 Barbara Kuriger: I raise a point of order, Mr Speaker. Just checking the time.

ASSISTANT SPEAKER (Adrian Rurawhe): It’s not working. The member has 24 seconds remaining.

CHLÖE SWARBRICK: None of this is to neglect the rest of Aotearoa’s illustrious history of protest, political pressure, and eventual progress. The suffrage movement, women’s fight for the right to vote; the Springbok Tour; homosexual law reform; the Vietnam War—this country, as we know it, was built on protest. The Green Party of Aotearoa New Zealand fundamentally opposes this bill.

Thank you for the opportunity to stand and speak on this bill, which has already been mentioned as being an interestingly named one—“Freedom of Access”, when it’s exactly the antithesis of that. This bill has three main things that it sets out to achieve. First of all, people who obstruct enforcement officers or fail to give their correct name and address can be arrested without a warrant. It also widens the scope in which an enforcement officer can remove and seize property.

Let’s look at the background of this bill. In 2007, we had an international movement by the name of Occupy, and this bill, which was first brought to the House under the name of the member Mike Sabin, was drafted in response to a series of occupations we saw across New Zealand. We saw them in Aotea Square, Christchurch, Dunedin, and also here in Wellington. It was part of a global protest movement after the Occupy Wall Street occupation happened. It was a protest that brought global attention to its cause, and that cause was economic inequality. It was part of the public response to the global financial crisis, which left many people without money. It was part of the public protest around the subprime mortgage crisis, which left many people homeless. It was part of a global push to protest against economic inequality.

So let’s get this straight: the National Party’s response to New Zealand’s participation in a protest about corruption, about the perceived undue influence of corporations on government, is to increase the powers of authorised officers to seize property and to arrest people who don’t give their correct name and address. If I have ever seen a piece of legislation that shows the true colours of the National Party—in terms of their inability to understand inequality, their inability to understand the rights of New Zealanders to protest, and the sheer out-of-touch nature of what this National Party shows.

But wait, there’s more—there’s more—and it’s not a set of steak knives. Local government powers are already able to do this. So what it’s trying to do is put in extra powers where the Local Government Act already provides for an offence to obstruct local council officers. Furthermore, the Local Government Act already enables officers to seize and obtain property in a public place that’s in breach of a by-law.

So here’s the final nail in the coffin: the only difference between the existing law and what this member’s bill provides is that it’s failed its New Zealand Bill of Rights Act vet. The member’s own colleague, the former Attorney-General the Hon Christopher Finlayson, has ruled as the Attorney-General that it is inconsistent with section 22 of the New Zealand Bill of Rights Act. Let’s have a look at what that says, in section 22: “[Everybody] has the right not to be arbitrarily arrested or detained.”—because this protects human dignity. So this bill attempts to override section 22 of the New Zealand Bill of Rights Act in order to do that.

So, to wrap up, let’s get down to the point that if there is economic inequality, if there is social unrest, people have a right to be able to protest, and that is why the Labour Party does not support this bill. We believe that people have a right to protest. This bill is an embarrassment to the National Party because it gives an insight into their true colours, the idea that you can sweep it under the carpet if it looks a bit messy. Well, that doesn’t wash here. If people want to protest, whether it be in Moutoa Gardens, Aotea Square, or outside my front door, there is a right for people in New Zealand to do that, and no two-bit, limp-wristed member’s bill is going to have a crack at section 22 of the New Zealand Bill of Rights Act. That is why I will not be supporting this member’s bill and nor will the Labour Party.

I rise to speak to this member’s bill, which was first proposed by Jonathan Young. I wasn’t scheduled to do this, but I actually do have some knowledge in this space, based on my role in local government over many years. Actually, even the Hon Ron Mark will recall conversations where councils are pitted against public opinion, public use of land, and how they have to sort things out. The gentleman in the rear, Su’a Williams—that’s correct, isn’t it—will know as well. Anybody that’s in local government will know that, actually, this can be a problem. And I’m not limp-wristed and half-baked, as the previous member, Virginia Andersen, just said. This bill is actually a reasoned response when the public are concerned about something, and, actually, the law is not clear. If it was so clear, then police would’ve cleared a whole lot of things off properties in the past.

I want to remind members of this House how we would actually get to a position of using this law. I agree that everybody has a right to protest—no problem—and if you think of the Parliament out here, we have lots of protests here. We might actually have a lot more in the next three years, but we’ve had a few in the past. So people protest, but would we think it’s right that people can actually occupy outside? I bet there would be big debates in this House if people sought to occupy that on a permanent basis.

Actually, what happens—and a council is no different—is the public, who actually have public spaces, have a tolerance for protest but they do not have a tolerance for occupations, and what normally happens is they then lobby their local councillors. They say, “Actually, this isn’t right. This is our space, we want to use it. We don’t want it occupied. Can you do something about it, Mr Mayor?”—or Mrs Mayor, or Miss Mayor. Generally, what happens is the council will go and look at its legal rights, and, actually, its legal rights are unclear. Then the council will get legal advice, spend a lot of money—“What can we do?”—and find out it’s quite difficult.

I remind members of this House that the Dunedin City Council’s trespass order was controversial. It cost them a lot of money, it was legally unclear, and the police did not know how to act. Auckland Council also issued a trespass notice on 28 November 2011, which was immediately followed by an injunction. If it was so clear, nobody would even take an injunction, but it is a contested piece of law. Wellington City Council has also had a very similar example in 2012, which went through a whole injunctive process.

We’re not talking about stopping people from protesting. What we’re talking about is the public being able to exert its rights as the owners of that property, to make sure there aren’t occupations and structures and permanent things left there. Actually, as the bill is written, if the property or placard or some sort of fixture is there for more than five days in any 12-month period—in other words, that’s the level of permanency—this law allows for it to be removed. Actually, the member Mr Eagle, who’s in the Chamber now, will also be aware, in his local government role, that sometimes this can be difficult. And I acknowledge him for being here now.

We also say that, actually, if the law says that officers of the council can seize property and things with specified notice—and if you go and ask members of your community who have seen these things play out, who have seen hundreds of thousands of dollars spent on legal cases, you’ll see that, actually, what they want is to prevent occupations but to allow people to protest—and to stop wasting money on unnecessary lawyers’ costs.

So I commend Jonathan Young on bringing this to the House, and I actually think, rather than the previous speaker’s emotional terms about “limp-wristed” and “not working”, that this is actually a very reasoned response to an issue that arrives from time to time and which, actually, our community doesn’t like. I urge the opposition, who happen to be the Government at the moment, to support this bill.

Well, it’s my privilege to rise on behalf of New Zealand First and say a few words on this bill, which only requires a few words. I’d have to say that having been a mayor of a fine council in Carterton for some time, at first I looked at this bill and thought there might be some reason to support it. I thought, from the perspective of the constituents of the Carterton district, that if people were erecting buildings and camping and causing all sorts of troubles in Memorial Square, the people, the residents of Carterton, might object and might think that this bill could be useful.

But, on further analysis, one finds a couple of things. Firstly, the current law does give councils the power to remove people who are causing damage, who are interfering with other people’s right to passage safely, who are erecting illegal structures on the property, and that leads one to look a little deeper. It’s quite astonishing, when one looks a little deeper at the report from the Attorney-General. I’m looking at the bottom of page 4, 5—4? And I find the signature of the Hon Chris Finlayson, Attorney-General, July 2017. So I thought to myself, having worked very closely with the Hon Chris Finlayson as the Minister for Treaty of Waitangi Negotiations—I was in the capacity of the lead negotiator on a Treaty settlement—why, I found him to be a very honourable chap, a very accurate chap, very well read—

💬 Hon Ruth Dyson: Modest.

Modest, he is too—very modest. But a person who does understand law—probably why he ended up as the Attorney-General, probably. And what does he say about this bill? Well, in a nutshell, at the bottom of his four-page, three-page, four-page document, it says, “Conclusion. [24.] For the reasons set out in paragraphs 5-14,”—that’s not insubstantial, is it—“I conclude the Bill appears to be inconsistent with s 22 of the Bill of Rights Act and that the inconsistency cannot be justified under s 5 of that Act.” Now, if the member who’s tabled the bill, the member who’s put this bill up, is doing so contrary to the advice of one of his senior former Cabinet members, then why would he put it up? Why would he put this bill up? So one does not have to—

💬 Chris Bishop: If that’s your standard, vote against the teacher bill.

Oh, Snapchat. Did I hear Snapchat? It wasn’t my phone; it’s turned off. But—

💬 Chris Bishop: You’re a grub, mate.

Ha, ha! Look, I only say that probably the grubby thing behind this bill, Mr Bishop, is the intent.

So when one thinks of Moutoa Gardens, when one thinks of Bastion Point, what does one see in common? What does one see in common? Well, protests—Māori protests over land. I have my deepest suspicions that this bill is not necessarily targeted in the way this member would have us believe it’s targeted; it’s targeted at something else, in which case I would remind the House of this. Freedom of right of expression and of peaceful protest is something that’s ingrained in this society and in this House. We support people’s right to protest and demonstrate. And if they are so disempowered that they feel the need to stand and occupy land to make their point, then we defend that right. We only put on that a couple of caveats: that they harm no one, they harm no one’s property, and that they peacefully demonstrate and make their point known.

Actually, if I was to come right the way back to Carterton and consider again the situation I might envisage occurring in Memorial Square, you know what I think would happen? Most Carterton people would defend someone’s right to express their view peacefully, if they felt that that was the only way they could be heard. Thank God, it never happened under my time as a mayor. We led a very peaceful, law-abiding, loving, caring district and the council was much loved. I guess that was reflected in the fact that I got re-elected unopposed, unlike some people who had to fight tooth and nail and for their sins ended up here in Parliament, Mr Yule—and probably regretting every moment of it now. But I would have to say to the member who tabled this bill, “Nice try. We know what’s behind it. We don’t support it.” Thank you.

I call Brett Hudson on behalf of Jonathan Young, in reply.

Thank you, Mr Assistant Speaker. It’s a pleasure to speak on behalf of Jonathan Young in this reply. It is an opportunity just to correct some of the terminological inexactitude that has been heard in this House from members opposite.

First of all, this bill does not prevent protest. It does not prevent freedom of expression. It does not even prevent freedom of access—particularly because this is about council-owned land—to make such a protest. It’s quite interesting, listening to the parties opposite, particularly the red and the green parties, which clearly evidence in what they say that when they think of rights, human rights, with respect to these activities, the only rights they consider are the rights of protesters. The rights of other law-abiding citizens to go about their lives and also to have access to those public spaces, to use those amenities and not to have their rights unduly impeded, is not something that is considered at all by the members opposite. That’s a real shame, because while we absolutely support the right of freedom of expression, like any right it is balanced by the rights for all New Zealanders, not a particular group.

There was a point made that apparently the law already covers this stuff. It would be wonderful if, in practice, it did, but both the inaction and previous statements by the police show evidence that they themselves are concerned about the powers and how they should exercise them under the current law, particularly when it comes to the removal of temporary structures that have been erected as part of that protest action. So the law needs clarification at least, and this amendment bill is one way, and a good way, in fact, to do that.

The other point that Mr Mark made about the very honourable, quite frankly, Christopher Finlayson in his previous role of Attorney-General and his commentary on this bill—a couple of points. First of all, the bill has got to go up before the Attorney-General gives a New Zealand Bill of Rights Act finding on it, so you can’t do it before the bill goes up. Secondly, while he did in fact find at the time that he couldn’t justify, under the New Zealand Bill of Rights Act, the arbitrary power of arrest, he pointed out that it was a very simple means and amendment to address that, and the select committee could do just that.

The second point, which is absolutely relevant to the arguments that have been made about the right of protesters for their freedom of speech, is in that opinion he states very clearly that the removal of the property does not significantly inhibit the expression of the protesters. So permitting the police to remove temporary structures that have been erected for five days or more does not inhibit that freedom of expression—a very clear statement from the Attorney-General. So those that have stood in this House trying to say that his findings somehow completely undermine the value of this member’s bill are simply incorrect.

The bill simply seeks to ensure that there is a balance in the execution of responsibilities by councils to be able to not only permit and support the freedom of expression of people and protest but also to acknowledge that they have a duty to care for the rights of other citizens who are not participating in the process, and that it’s important that they are able to strike an adequate balance and to have the authority to execute upon that balance.

This is a very good member’s bill. I commend Jonathan Young for bringing it to the House. There is still time for members opposite to reconsider and to give their support for this to go to a select committee, where it can be properly scrutinised, where elements such as those the Attorney-General raised can be looked at and addressed, so a bill that is in an even better shape could be returned to the House for consideration in a second reading debate. I call on members of both sides of the House to do that. I commend this bill to the House.