Wednesday, 3 July 2013



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’.[1] 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.[2]

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. [3] 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.[4]
         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.[5]

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.’[6]

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).

[1]  HRC, CCPR General Comment 20: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment, [2].
[2] Ibid [4]
[3] See generally National Coalition for the Homeless, US, Illegal to be Homeless: The
Criminalisation of Homelessness in the United States (2001) 37.
[4] Jeremy Waldron, ‘Homelessness and the Issue of Freedom’ (1991) 39 UCLA Law Review
295, 315.
[5] Ibid 320.
[6] 370 US 660, 667 (1962).

1 comment:

  1. Good on you Michael!

    I intend to challenge the corporate-controlled Auckland Council directly through the 'Public Forum' process, and remind them that High Court Judge Ellis ruled they had gone too far, when she quashed the injunction that was used to force peaceful Occupy Auckland protestors from Aotea Square. (Her Judgment, and other related Court documents can be found on

    (I was one of the 2 successful Appellants, (in my own name).

    Some information here may be helpful to you, if you haven't already seen it?

    Kind regards,

    Penny Bright
    'Anti-corruption / anti-privatisation' campaigner
    2013 Auckland Mayoral candidate