Saturday, 30 July 2011

Rugby World Cup & the Homeless

The Auckland City Council has recently hired a Security Firm for $20,000 to move homeless people on from the central city area during the Rugby World Cup. Palmerston North City Council was reported moving to rid it's street of beggars before the same event. Evidently New Zealand now exists for some people, but not others. To my mind these actions speak of the widening gulf that exists in our society between the haves and the have-nots.

Every local territorial authority has bylaws relating to the use by citizens of public places within their area. The citizens of Auckland and Palmerston North, like all cities comprise a diverse mix of people and types. Some of their citizens are also homeless.

Like most large cities of the English speaking world, vagrants and their associated social problems, including alcoholism, have been a regular feature during the development of modern society. Until recently, their public presence has been fairly unproblematic, with the police tending to use informal measures to deal with them, preferring to ask them to ‘move on’ rather than invoke formal procedures of arrest, prosecution and so on where they had done nothing other than have a public presence. Earlier research found that the police tended to adopt a ‘peacekeeping’ rather than law enforcement approach to such people. As Bittner (1967: 714) put the matter, ‘peace keeping procedure on skid-row consists of three elements. Patrolmen seek to acquire a rich body of concrete knowledge about people by cultivating personal acquaintance with as many residents as possible. They tend to proceed against persons mainly on the basis of perceived risk, rather than on the basis of culpability. And they are more interested in reducing the aggregate total of troubles in the area than in evaluating individual cases according to merit.’

The way in most cases to reduce the ‘total of troubles in the area’ was to ask their skid-row customers to periodically move on, pushing any risks they posed out of sight. Arrest followed by prosecution might simply add to the ‘total of troubles’, solving nothing, wasting valuable police time and resources in a process that became, as it were, a ‘revolving door’ for all concerned: ‘drunks were a drain on resources which could be used more productively.'

Added to this now is the desire to 'put on a good face' for the global audience watching the Rugby World Cup. There is after all, no poverty in New Zealand? Hence as with India and the Commonwealth Games we are to be treated to local councils pursuing policies of ‘reupholstering’ urban domains, particularly city centres (and frequently gentrifying the former skid-row locations), with a view to ensuring that, as was the case in Wellington, ‘the city must be walkable, clean and safe, with people living, working and spending leisure time in the city’ (Statement of Proposal, Liquor Control Bylaw: 2).

We will see Police enforcing certain bylaws, such that Courts will become conduits for, some of the homeless community who will always be appearing, either in relation to a breach of liquor ban or some other minor public order type of charge during the Rugby World Cup as a result of theses purging sweeps.

As a lawyer who regularly appears in Court on behalf of clients I have begun to question whether the courts of criminal justice are the appropriate forums to address the issues around street people.

General Principles
The Local Government Act 2002 makes it a requirement that all bylaws have to comply with the BORA. In this sense a limit on a fundamental right will only be upheld if it survives section 5 BORA scrutiny. To qualify as a justified limitation, any inroad into a BORA right must be (a) prescribed by law and (b) reasonable and demonstrably justified in a free and democratic society. Once a prima facie BORA infringement has been identified it is up to the local body promoting the infringement to prove that the section 5 requirements are met.

BORA rights are rights not privileges to be granted by officials. A right may be regulated, but only in ways authorised and in accord with section 5 BORA described above. There is the further requirement that any restriction on a BORA right only restrict that right to the least degree possible consistent with the demonstrably justified limitation being pursued.

Section 6 - Interpretation consistent with the New Zealand Bill of Rights Act 1990 (“BORA”)
Recent judicial pronouncements demonstrate that the courts are utilising the direction in Section 6 of the Bill of Rights Act to accord preference to meanings of enactments that are consistent with the rights and freedoms contained in the Act. In Baigent’s Case for example, the Court of Appeal applied Section 6 in conjunction with sections 3 and 21 of the Bill of Rights Act when interpreting Section 6(5) of the Crown Proceedings Act 1950 determining whether proceedings could be brought against the Crown for a search in bad faith by the police. The Court concluded that “[i]t is consistent with that affirmed right [right to be secure against unreasonable search and seizure] to interpret s 6(5) of the Crown Proceedings Act as not protecting the Crown from liability for the execution of a search warrant in bad faith” (Baigent’s Case [1994] 3 NZLR 667, 674 per Cooke P (as he then was)).

In Moonen v Film and Literature Board of Review (1999) 5 HRNZ 224, 234 the Court of Appeal stated that “where an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred to any other. Thus if there are two tenable meanings, the one which is most in harmony with the Bill of Rights must be adopted” (Moonen para [16]). When considering the meaning of the words “promotes or supports” in Section 3 of the Films, Videos, and Publications Classification Act 1993 the Court emphasised that a Bill of Rights consistent approach was required and that those words had to be given such available meaning which impinges as little as possible on freedom of expression.

The Court of Appeal went a step further in the recent decision of R v Poumako [2000] 2 NZLR 695, 702:
The meaning to be preferred is that which is consistent (or more consistent) with the rights and freedoms in the Bill of Rights. It is not a matter of what the legislature (or an individual member) might have intended. The direction is that whenever a meaning consistent with the Bill of Rights can be given, it is to be preferred.

While remaining within the appropriate realm of statutory interpretation, the courts continue to ensure a level of protection for human rights in New Zealand similar in large measure to that achieved in jurisdictions where a Bill of Rights or its equivalent has the status of superior law.

Compliance with the Bill of Rights Act
The legislation passed by a local body authority is subordinate legislation. Whereas Parliament is able to pass legislation despite a report from the Attorney General under Section 7 of the BORA indicating a conflict with BORA. Local bodies do not enjoy this power, Parliament has expressly stated that this is so in section 155 of the Local Government Act 2002.

Section 5 of the BORA provides that the rights and freedoms contained in the Act may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. In determining whether a limitation is “demonstrably justified”, the Court of Appeal in its above mentioned Moonen decision set out the test to determine whether or not a limitation is “demonstrably justified” (Moonen para [18]):
(i) Identify objective that the Legislature was endeavouring to achieve by the provision in question.
(ii) Assess the importance and significance of that objective.
(iii) The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective.
(iv) The means used must also have a rational relationship with the objective.
(v) In achieving the objective there must be as little interference as possible with the right or freedom affected.
(vi) The limitation involved must be justifiable in light of the objective.

The Legal Issues Re Freedom of Expression

Forcing people to move on, from a public space, because they have no private space of their own, or because they ask for alms is to my mind offensive and is a blatant fetter on a person’s section 14 BORA right to freedom of expression.

Begging and the Right to Freedom of Expression
Pursuant to section 14 BORA all persons have the right to freedom of expression, including the right to seek, receive and impart information through any media, including orally, in writing or in the form of art.

As a first principle I consider that the proposed proscription and criminalisation of begging to constitute an infraction of the fundamental human right to freedom of expression.

Such restrictions would violate the right to freedom of expression in two basic respects. First, the proscription of begging renders peaceful verbal or written communication unlawful. Anti-begging provisions apply whether a person adopts passive begging techniques (such as sitting or standing in one spot with a cup, a hat or a sign) or more active begging techniques (such as approaching passers-by and entreating them to donate money). In each case, it is the act of expressing a need for money, rather than the conduct associated with that expression, that is the target of anti-begging provisions.

Second, anti-begging provisions infringe the right to freedom of expression in that they proscribe the imparting (and, by extension, the receiving) of communications regarding the way in which society treats its poor and disenfranchised. In many cases, begging amounts to an expression of poverty, alienation, homelessness, dislocation and the effects of inadequate social security, public housing and public health systems. In the US, many anti-begging provisions have been struck down or narrowed on the basis of inconsistency with the First Amendment right to freedom of expression: see, eg, Benefit v Cambridge, 424 Mass 918 (1997) per Greaney J:
"We conclude that no compelling State interest has been demonstrated that would warrant punishing a beggar's peaceful communication with his or her fellow citizens in a public place. (6) As one writer on the subject has observed: "At the least, for some panhandlers, begging is a way to augment their meager sources. For a few, it may be their only source of income. Panhandling is therefore close to the center of the personal liberty of some people in contemporary American society." Munzer, Response to Ellickson on "Chronic Misconduct" in Urban Spaces: Of Panhandlers, Bench Squatters, and Day Laborers, 32 Harv. C.R.-C.L. L. Rev. 1, 11 (1997). The statute intrudes not only on the right of free communication, but it also implicates and suppresses an even broader right -- the right to engage fellow human beings with the hope of receiving aid and compassion. The streets and public areas are quintessential public forums, not because they are a particularly convenient platform for expression, but because they are the necessary, essential public spaces that connect our individual private spaces, from which we legitimately may exclude others and likewise be excluded, but from which we almost all must inevitably emerge from time to time. If such a basic transaction as peacefully requesting or giving casual help to the needy may be forbidden in all such places, then we may belong to the government that regulates us and not the other way around."

The criminalisation of begging denies to persons who beg a form of expression that may be necessary for survival. It also denies the truly poor the right to impart, and society the right to receive, information regarding poverty, inequality, structural inadequacies and the need for urgent social reform. By silencing people who beg, anti-begging provisions stifle debate about social policies regarding the poor.

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