LOCAL BODIES, FREEDOM OF EXPRESSION, BEGGING BANS AND HOMELESSNESS
1. Recently a number of territorial authorities including Wellington City
Council and the Auckland Super City are considering amending their bylaws to further target begging and by extension those who are homeless. Bylaws address in part the use by citizens of public places within the area controlled by the territorial authority. The citizens of Wellington, like all cities comprise a diverse mix
of people and types. Some of our citizens are also homeless.
2.
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 (see e.g. Anderson 1923, Bogue 1963).
3.
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’
(Fairhead 1980) 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.’
4.
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.
5.
They occupied
space in police cells, often soiling them, tended to take up more police time
than other offenders … and often demanded almost constant attention; and they
frequently required medical attention which incurred additional cost’ (Fairhead
1980: 29).
6.
However, in
recent years, such people have assumed a much more problematic public presence,
along with a range of other street people.
This relates to local councils pursuing entirely admirable policies of
‘reupholstering’ urban domains, particularly city centres (and frequently
gentrifying the former skid-row locations), with a view to ensuring that, as in
the case of 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).
7.
In addition in
enforcing certain bylaws territorial authorities often work in conjunction with police, such that
on a general list day in the District Court, some member(s) of the homeless
community will always be appearing, either in relation to a breach of liquor
ban or some other minor public order type of charge.
8.
As a lawyer who
regularly appears in the District 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
9.
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.
10.
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”)
11.
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)).
12.
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.
13.
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.
14.
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
15.
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.
16.
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.
Some Legal Issues Re Freedom of
Expression
17.
Forcing people to obtain a permit prior to
speaking, preaching or undertaking any other public performance is a blatant
fetter on a person’s section 14 BORA right to freedom of expression.
18.
The need for prior consent from
the Council before undertaking preaching, playing an instrument or distributing
any written material etc is so broad as to be positively dangerous.
19.
The requirement of a permit amounts to a form of censorship through license which
makes impossible the free and unhampered freedom
of expression through speech or the distribution of pamphlets and strikes at the
very heart of BORA guarantees. It is a fact of history that numerous small
groups and individuals often must rely on the distribution of circulars. The
hand distribution of religious tracts is an age-old form of missionary
evangelism — as old as the history of printing presses and has been a potent
force in various religious and political movements down through the years. In
this sense the bylaw unfairly targets the poorly financed causes of little
people. Individuals or groups with ready access to funds can afford to
advertise in the print media of television unimpeded by the draconian
requirements of having to request permission from their territorial authority.
20. To impose a blanket requirement for any public performance, lecture, busking, singing,
preaching, or playing of any instrument, or the distribution of written
material to only occur with prior Council consent, is too broad. It may be
argued that such a requirement is necessary for health and safety or other
reasons but individual's right to freedom of expression must be considered. The requirement applies to non-commercial
canvassers as well as salespeople and covers not only religious causes, but
extends to include all political activity as well as a child seeking
sponsorship for the 40 Hour Famine, in short the requirement of prior
permission covers all types of activity regardless of size or duration would on its face be too blunt a tool. It
would seem to extend to ‘residents casually soliciting the votes of
neighbours,’ to enlist support for employing a more efficient garbage
collector."
21.
It is offensive — not only to
the values protected by the BORA, but to the very notion of a free society —
that in the context of everyday public discourse a citizen must first inform
the government of her desire to speak to her fellow citizens and then obtain a
permit to do so.
22.
It should not be a requirement
of free speech that the speaker has to disclose his or her identity. A person
advocating any cause should not feel any compulsion to reveal their identity to
anyone. The need to disclose one’s identity to a Council official prior to
engaging in free speech may act as a deterrent to the exercise of the free
speech.
23.
In this sense the proposed
bylaw impinges upon the right to engage in anonymous speech. The requirement that a person must be
identified in a permit application filed in the Council office necessarily
results in a surrender of that anonymity and may preclude such persons from canvassing
for unpopular causes.
24.
In addition to chilling free
speech by removing the option of anonymous speech, the proposed bylaw would
effectively ban a significant amount of spontaneous speech by interposing the
registration and permit requirement between the decision to speak and the
actual speech itself. Even a spontaneous decision to go across the street and
urge a fellow citizen to vote against the current Council or the traffic bypass
could not lawfully be implemented without first obtaining Council’s permission.
Further some persons might, based on religious or idiosyncratic secular views,
choose not to speak at all rather than register.
25.
The right to anonymity,
especially cherished by speakers advancing unpopular causes, can often be
neglected. But it remains just as important today as ever, when the inclination
of the powerful — especially government officials and politicians — to
retaliate against those who would criticise them seems to be on the rise.
26.
In order to maintain the basic norm of freedom
in our society, we must be ever vigilant of government efforts to regulate the
citizenry in anticipation of
potential unlawful conduct, rather than in response
to such conduct. Nowhere is that more true than in the area of speech, where
history has proven that the government’s motives are often less than pure, and
that petty bureaucrats will abuse any mechanism for controlling speech if given
half a chance. As a matter of principle a requirement of
registration in order to make a public speech would seem generally incompatible
with an exercise of the rights of free speech and free assembly. A requirement that one must register before
he or she undertakes to make a public speech to enlist support for a lawful
movement is quite incompatible with the requirements of the BORA.
Begging and the Right to Freedom of Expression
27. Current moves for example in Auckland to consider banning begging is inconsistant with section 14 BORA. 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.
28.
As a first principle I consider that the proscription and criminalisation
of begging constitutes an infraction of the fundamental human right to freedom
of expression.
29.
Such restrictions 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.
30.
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. (7)
[emphasis added]
31.
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.
Human Rights Violated by Camping Provisions
32.
A number of territorial authorities have restrictions on so-called camping. Such
restrictions impact upon the homeless and breach rights to freedom of
expression, movement and constitute a form of treatment/punishment that is
cruel, degrading, disproportionate and severe in terms of section 9 BORA. The
provisions are also offensive to New Zealand’s obligations under the
International Covenant on Civil and Political Rights (“ICCPR”).
Right to be Free from
Cruel, Inhumane or Degrading Treatment or
Punishment (s9 BORA and ICCPR)
33.
Pursuant to art 7 of the ICCPR,
no person shall be subjected to torture or to cruel, inhumane or degrading
treatment or punishment. According to the HRC, the aim of art 7 is to ‘protect
both the physical and mental integrity … and
the dignity’ of the human person by prohibiting not only ‘acts that cause
physical pain, but also acts that cause mental suffering’. The Human Rights Committee (“HRC”)
recognises that the issue as to whether treatment or punishment is proscribed
by art 7 is contingent upon the nature, purpose and severity of the treatment
having regard to the conduct being punished.
34.
Laws that target or disproportionately impact upon activities associated
with the state of homelessness — such as laws that criminalise sleeping/camping
or storing belongings in public space — violate the right to be free from
cruel, inhumane or degrading treatment or punishment. Such laws discriminatorily affect
homeless people on the grounds of their housing status and the necessary
location of their conduct, not on the basis that their behaviour itself is
reprehensible and therefore ought to be criminal. In so doing, these laws violate common
standards of decency and constitute punishment that is disproportionately
severe to the ‘crime’.
35.
Further a number of the homeless are alcoholics and or suffer from a
range of illnesses including mental illness. To enact bylaws, which will lead
to arrest and subsequent fining of people who have no means to pay, and which may
ultimately lead to their imprisonment is both cruel and unusual. Often with
such people it is the location, rather than the nature, of the conduct that
renders it unlawful. For example a homeless person could not be charged with
sleeping, drinking, swearing, urinating or littering in a conventional home.
36.
The impact of prohibiting the performance of essential human acts in
public on those experiencing homelessness is cruel, unusual and degrading. As
critical social theorist and lawyer Jeremy Waldron opines:
If urinating is prohibited in public
places (and if there are no public lavatories) then the homeless are simply
unfree to urinate. These are not altogether comfortable conclusions, and they
are certainly not comfortable for those who have to live with them.
Waldron goes on to say:
Though … there is nothing particularly
dignified about sleeping or urinating, there is certainly something deeply and
inherently undignified about being prevented from doing so. … We should be
ashamed that we have allowed our laws of public and private property to reduce
a million or more citizens to something approaching this level of degradation.
37.
The impact of fining homeless people for breaches of public space
regulations is also cruel, unusual and degrading. As the United States Supreme
Court analogised in Robinson v California,
imprisonment and fines do not, in the abstract, constitute cruel and unusual
punishment, but ‘[e]ven one day in prison would be cruel and unusual punishment
for the “crime” of having a common cold.’
38.
Moreover, in relation to the homeless fines do not serve the principle purposes of sentencing — namely,
deterrence and rehabilitation. They are neither commensurate with, nor
justified by, the nature and gravity of their conduct, nor their culpability
and degree of responsibility for their conduct, in light of their homeless
state. In fact, fining a homeless person for his conduct exacerbates the underlying causes of his poverty, disengagement, depression and frustration.
This is particularly the case when the homeless are specifically targeted for
the selective enforcement of laws.
39. Rather than punishing homeless
people for acts that they necessarily perform in public, it is imperative that
we, as a community, develop humane responses. Such responses could not only
afford homeless people greater dignity and respect, but could also address
legitimate concerns (such as sanitation in the case of a person who urinates in
public) through constructive responses (such as the provision of adequate and
accessible public restrooms).
HRC, CCPR General Comment 20: Replaces General
Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment,
[2].
See generally National
Coalition for the Homeless, US, Illegal
to be Homeless: The
Jeremy Waldron, ‘Homelessness
and the Issue of Freedom’ (1991) 39 UCLA
Law Review
