20 May 2010
ORAL SUBMISSION TO THE STRATEGY AND POLICY COMMITTEE OF THE WELLINGTON CITY COUNCIL RELATING TO THE PROPOSED AMENDMENT TO ITS LIQUOR CONTROL BYLAW
NZCCL acknowledges that the existing Bylaw relating to the Wellington central area was first enacted in 2003, and there have been 2 subsequent amendments which incorporated 4 further areas within the bylaw. The basis of this submission contains comments of a conceptual and practical nature, followed by some observations about perception and then a brief summary and a final remark.
The idea that banning an activity thereby causes it to cease is close to illusory. As the Council acknowledges in its Summary document “the problem may move to neighbouring suburbs”. The same logic means that with a city-wide ban the problem merely moves to another area, such as Petone or the Hutt Valley. At best, a ban merely moves the activity or conduct to another location, and at worst it is simply ignored. Of course, there are consequences when a ban is ignored, and that is ostensibly the thrust of this proposed amendment to the existing Bylaw. Moreover, while the data indicates that for the majority of those who committed an offence in a public place their last drink was in a public place, there is no indication that the majority of their prior drinking occurred in a public place. It is equally, if not more. likely that those persons were “primed” in one or more private locations.
A ban is also an easy option and saves having to determine the actual cause of the undesirable activity or conduct and, in turn, specifically addressing that cause. We accept that the task of identifying the cause can be a taxing exercise, and that the subsequent task of either removing the cause or of promoting a more desirable form of activity, is probably even more taxing.
There are 3 practical comments -
First, NZCCL urges that any extension to the existing Bylaw be made only when there has been a clearly demonstrable need in terms of S.5 of the Bill of Rights Act 1990. To propose an extension that encompasses the entirety of the city is breath-takingly audacious, and most likely to be ultra vires. It is comparable to using a sledge hammer to crack a peanut. The documentation indicates that some communities have requested a liquor control bylaw for their area, but they represent only a minority of those suburbs that are currently free of any liquor ban. The proposal seeks to remove, on a pre-emptive basis, a freedom which currently exists for the citizens of and visitors to Wellington.
Second, any extension will automatically extend the power of the Police, without warrant, to search a vehicle that is in, or is entering, a public place within the extended area. The extent of the proposed liquor free area is such that the Police can legitimately endeavour to search any vehicle anyway in the city at any time. It is small comfort to hear that this power is unlikely to be exercised indiscriminately – the mere fact of its existence is a clear indicator that this can occur when someone considers that the particular circumstances justify that approach.
Third, there is a need for clarity and further information in the current bylaw by incorporating into any extension, and if no extension, then to the existing bylaw two components – (a) amending the paragraph relating to S.170 of the Local Government Act 2002 to set out in full the wording of Ss. (1), and (b) adding a new paragraph excluding unopened liquor where there is no opened liquor in the vehicle or the container. In the latter situation, it is appropriate to issue a warning that none of the liquor is to be consumed in a public place where there is an existing liquor ban.
The proposal appears to be based on an assumption that the public consumption of liquor inevitably leads to alcohol-related disorder and harm. However, there are likely to be far more occasions where the consumption of liquor in public places has no adverse consequences. For example, a couple of bottles of wine at a picnic at the beach or in a park, or a few beers after a game of touch rugby at Anderson Park or at a barbeque at Makara – all of which will be prohibited if this proposal goes ahead in its current form. As well, those activities are usually rather spontaneous which means that there is minimal scope to apply for and obtain written permission beforehand.
The Council espouses a vision that Wellington is a safe, healthy vibrant city for people to live, work and play. While “there is no intention to spoil the fun” is a sensible and practicable approach on the part of the Police, it does sit incongruously alongside the stark wording of a city wide liquor ban. It also creates the impression that there are two standards - between the law as it is written and the law as it is applied. While widening the liquor ban may result in citizens and visitors feeling safer, but what evidence is there that it actually makes them safer.
Indeed, the proposal to extend the liquor ban city wide and the capacity to search a vehicle, without warrant, might well lead to a perception that the Council is willing to limit significantly the freedom of its citizens and visitors.
The NZCCL submission is that Council -
* extend the liquor consumption ban only where there is a significant and demonstrable need to do so, and on an area by area basis; and
* amend the existing Bylaw to incorporate more detailed wording of S.170 (1) of the Local Government Act 2002, and to exclude unopened liquor where there is no other opened liquor in the vehicle or in the container.
In regard to the search of a vehicle, without warrant, it might be said that if a person has nothing to hide then the person has nothing to fear. From a civil liberties perspective that observation, while superficially attractive, is actually based on an unstated and far less attractive assumption, viz. that a person in authority has a right to determine which vehicle is to be searched. That indeed is an erosion of civil liberties.