The New Zealand Council of Civil Liberties made a written submission to the Wellington City Council about their intention to impose a city-wide ban on the consumption of liquor in any public places. Of particular concern was that this would give the Police the power to search any vehicle or container in the city without need of a warrant.
5 May 2010
The New Zealand Council for Civil Liberties (NZCCL) welcomes the opportunity to make a submission in relation to this proposal.
The current Bylaw prohibits the consumption and possession of liquor in certain designated areas. The original designated area (being the Wellington central area) was extended in 2007 and 2008 (where a total of 4 additional areas were included). This proposal seeks to extend those designated areas to include a further 17 suburbs, and its maximum effect is to encompass the entirety of Wellington City.
NZCCL notes that the commentary accompanying the proposal refers almost almost exclusively to the consumption of liquor, and that all the associated behaviour and harm is a direct consequence of the consumption of liquor.
NZCCL considers that the power to make bylaws authorised by S.147 of the Local Government Act 2002 was intended to have its application limited to those areas where there was demonstrable need, and that a proposal to extend that application on a city-wide basis is probably ultra vires.
NZCCL has considered both the Summary and the Statement documents and will address our comments to 3 aspects as follows –
1. a perceived change in emphasis from consumption and possession to possession and consumption, and a need for specific clarity in relation to possession of unopened liquor;
2. the width of the proposed extension; and
3. the impact of the power, without warrant, to search and seize liquor.
Where liquor has or is being consumed NZCCL accepts that other liquor, whether opened or unopened, is properly subject to the existing Bylaw. However, where there has been no consumption and no liquor opened, NZCCL considers that any intervention at that stage, apart from a reminder that no alcohol is to be consumed in the designated area, lacks legitimate justification and is little more than a heavy-handed intrusion into the freedom of movement of citizens. There is no statement, let alone evidence, that the possession of unopened liquor alone causes, or could cause, anti-social behaviour or the like. Clarity as to this particular situation needs to be ensured so that citizens are aware of what they are entitled to do rather than of what they are prohibited from doing.
2. NZCCL considers that a proposal to incorporate in one swoop a further 17 suburbs within the ambit of the Bylaw is a breath-taking abuse of power. Where there has been a demonstrable need an extension may be justified, but that is clearly lacking in respect of many of the additional suburbs.
NZCCL acknowledges that all citizens and visitors expect that, apart from exceptional and usually limited circumstances, they can in general move with freedom and with safety within their city. It is quite clear that the proposed extension to the existing bylaw (whether city-wide or limited) will restrict the rights and freedoms of every citizen and visitor. The comment that the proposed bylaw does not prevent activities but rather requires them to happen without liquor is rather glib, and ignores completely the widespread acceptance and use of alcohol in daily living, and the generally responsible attitude of the majority of citizens.
For example, a city-wide ban would make it virtually impossible for a family to have a glass of wine at a picnic or a group of young men to have a beer with their fish and chips after a game of touch rugby at a park. The proposal even extends to a barbeque with a few beers at Makara beach. These events often occur with minimal advance planning and there is really no scope to make an application for written permission which would clearly take some time to process as well as incur a cost. NZCCL considers that a majority of persons consume alcohol in a responsible manner when they undertake these kinds of activities, and to propose to ban them completely and over such a wide spread catchment area is heavy handed and unnecessary.
The extent to which the perception that the city will somehow both be safer, healthier and more vibrant as well as enable wider community use of public amenity because of an extended liquor ban is questionable. It appears that more people have complained rather than supported the status quo, but the number of people overall who have made any contact with the Council is likely to be a very small proportion of the citizens who live in the city. What is the reasoning whereby the Council is proposing to permit the perception of the limited minority to change the landscape for the significant majority? Further, how many of the Councillors have direct experience of adverse alcohol sourced ill conduct in their own residential area, and to what extent, if at all, have they become more fearful as a result?
3. The most significant area, from the perspective of NZCCL, is the potential impact of the power of the Police, without warrant, to search a container or a vehicle that is in, or is entering, a public place. S.170 of the Local Government Act 2002 requires the Police, before exercising a power of search, to inform the person in possession of the container or vehicle that they have the opportunity of removing the container or vehicle from the public place and then provide a reasonable opportunity to do so.
In practical terms it may prove to be extremely difficult for a person who has a container but no vehicle to be able to leave the entire city, so even being in possession of unopened alcohol may mean that it is seized (refer to earlier comments about unopened alcohol).
However, the extent of the proposed alcohol free area is such that the Police can legitimately endeavour to search any vehicle anywhere in the city at any time. There is no suggestion that the Police have or will exercise this power other than in an appropriate manner, but the fact that it exists provides scope for its potential misuse in the future.
NZCCL notes that the Police have provided assurances about the use of discretion and the type of behaviour they will focus on when using this tool. Further, Inspector Perry states “It is not the intention of officers to spoil the fun. Officers have and will continue to take a time, place and circumstance approach to enforcing liquor bans and generally, there would have to be a complaint, something sensible drinking was unlikely to attract.” Police enforcement guidelines will be revisited to ensure they clearly reflect this approach.
NZCCL considers that if the Council is minded to make any change to the existing Liquor Control Bylaws, it incorporate the Notes set out in Appendix 1 in both the Proposal and Statement documents, and in particular expand the detail relating to S.170 to state “before exercising the power of search in relation to a container or a vehicle, the Police inform the person in possession of the container or vehicle that the person may remove the container or the vehicle from the public place, and that reasonable opportunity to do so will be provided”. A further note that where there is only unopened liquor in the container or vehicle a warning that the liquor must remain unopened within the designated area also needs to be included.
NZCCL considers that –
1. any extension to the alcohol liquor ban is only justifiable where there is significant, substantive evidence. The width of the proposed ban and its extension on an arbitrary basis is unwarranted, and is also probably ultra vires;
2. clarity be provided where there is only unopened liquor in the container or vehicle, and in the manner in which the Police are to exercise their power under S.170 of the Local Government Act 2002; and
3. information be provided as to the discretion and the type of behaviour on which the Police will focus.
NZCCL wishes to make an oral submission.