About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation founded in 1952 which advocates to promote human rights and maintain civil liberties.
   
2. We wish to make an oral submission to the Committee.

Introduction

3. This bill limits rights of people who have committed no crime. People without homes who have nowhere to sleep need help and resources, not for Police to order them out of sight and to remain away from that area for up to 24 hours.

4. The Council strongly opposes this bill.  This bill is a wildly out of control attack on a liberty so central to the way in which our communities operate that few of us even know its name: New Zealanders have an inherent right to be in public. 

Right to be in Public

5. The people who wrote New Zealand’s Bill of Rights Act (BORA) never imagined that anyone would question that everyone has a right to exist in public. However, this right is a necessary precondition for many of the rights which are clearly described in BORA.

Freedom of Movement

6. BORA section 18 recognises everyone’s inherent right to freedom of Movement in law. The Council agrees with the Attorney-General’s conclusion that this bill grants Police the power to deny people the right to move through areas. Limitations on Freedom of Movement impinge on many other rights in BORA. Therefore the Council believes that if this bill were to become law then subsection 8F must include the following safeguards. 

Manifestation of Religion and Belief

7. As the Council detailed in our submission on the Policing Amendment Bill earlier this year, unless carefully drafted, limitations on Freedom of Movement usually limit our section 15 right to Manifestation of Religion and Belief.  This is obvious once considered: the specified area can be specified such that it blocks access to places of worship.

 Recommendation 1
Add new subsection 8F(3):
No offence occurs under this act, nor will any person be detained when a person subject to a move-on order enters the specified area for:
(a) the purpose of visiting a place of worship.

Right to be Healthy

8. The Council supports the Human Rights Commissioner’s belief that everyone has the right to be healthy.  That right ought to be more clearly expressed in primary legislation such as BORA. 
   
9. There is nothing in the bill limiting the specification of medical facilities as a specified area.  Therefore, people can be prosecuted under this bill for seeking life saving medical treatment, or indeed, for assisting others to reach medical facilities to save their lives.

Recommendation 2
Add section (b) to new subsection 8F(3):
the purpose of receiving medical treatment, providing medical treatment, or aiding others to reach medical treatment.

Good samaritans

10. Leading on from the right to be healthy is another safeguard which we would all support. This bill should not limit anyone’s ability to come to anyone else’s aid.  No one should die because another person was prevented by this bill from rescuing them from harm. 

Recommendation 3
Add section (c) to new subsection 8F(3):
the purpose of helping someone avoid injury or death.

Freedom of Peaceful Assembly

11. In order for a peaceful assembly to occur those attending need to be free to move through public places, and then to remain in the place where the assembly will occur.
    
12. BORA section 16, Freedom of Peaceful Assembly, was clearly considered by the drafters of this bill, who wrote section 8A(5):

A move-on order may not be issued to a person who is in a public place for the primary purpose of demonstrating support for, or opposition to, or otherwise publicising, a point of view, cause, or campaign;

13. Unfortunately, this is the wrong safeguard. It does not matter why the order has been issued if the order is in effect at a time when someone wants to protest. If the order interferes with their ability to protest then their right has been limited.

Recommendation 4
Add section (d) to new subsection 8F(3):
the purpose of taking part in a peaceful protest or industrial action.

Freedom of Expression

14. There was a time when all expression was done in person.  For some people this is still their primary way of communication. Freedom of expression also conveys the right to receive information. This would include attending public meetings, including government meetings.

Recommendation 5
Add section (e) to new subsection 8F(3):
the purpose of attending a public meeting.

Legal Counsel

15. BORA section 24 recognises everyone’s right to counsel. Like the previous restrictions, this bill would carelessly deny this right.

Recommendation 6
Add sections (f) and (g) to new subsection 8F(3):
the purpose of receiving or providing legal counsel
the purpose of attending any court or tribunal, whether as a party to the case, a witness, or an observer. 

Electoral Rights

16. BORA section 12 establishes that everyone has the right to vote.  This is done in person.

Recommendation 7
Add section (h) to new subsection 8F(3):
the purpose of voting in an election 

Employment Rights

17. Everyone has the right to seek employment and to be employed.

Recommendation 8
Add section (i) to new subsection 8F(3):
the purpose of being at or travelling to their place of employment, or for performing their normal employment duties.

Other enactments affected

18. Rounding off the list of reasons why freedom of movement should not be limited, are the countless other acts of parliament which from time to time compel every member of our community to be at a certain place at a certain time. 

Recommendation 9
Add section (j) to new subsection 8F(3):
the purpose of following any other order under any other enactment, or following the direction of an officer of the crown, or discharging duties as an officer of the crown.

Property Rights

19. The public rhetoric about this bill is about people without homes. However five of the six grounds for issuing an order under new section 8A(1) make no reference to how a person is housed. It is possible under this bill to deny people access to their own homes on such feeble grounds as “disorderly conduct.”

Recommendation 10
Add section (7) to new subsection 8A:
The public place specified in the move on order may not obstruct access to the person’s ordinary place of residence, or to any private property owned by the person or property where the person is welcome. Further the specified distance may not be set such that it denies access to any of these types of private property.

Liberty of the Person

20. BORA section 22, Liberty of the Person, comes closest to capturing our right to be in public. The entirety of section 22 is this sentence: “Everyone has the right not to be arbitrarily arrested or detained.”  There is considerable case law about the use of the word arbitrary here in New Zealand, and overseas as the same word is used in Article 9 of the International Convent on Civil and Political Rights. We’ll briefly summarise that case law as saying that detentions can be arbitrary even if they are expressly permitted by law. Grounds for deeming a detention permitted by law to be arbitrary include unreasonableness, a lack of necessity, inconsistency of application, and improper motivation.
    
21. This bill may well run afoul of liberty of the person, as it will rarely be possible to argue that moving-on a person was necessary. Indeed, that our country manages to survive today without this bill is proof that no specific instance of invoking this power will ever be necessary.
    
22. Further, there is every reason to believe that this power will be applied inconsistently.  There are plenty of unenforced and under-enforced laws.  Police have better things to do with their time.  If this power is enforced only occasionally then section 22 is being limited as the instances when it will be enforced as determined not by the actions of the individual receiving the order, but by the boredom of the issuing officer.

Supreme Law

23. The Attorney General has concluded that this bill can not be justified in a free and democratic society, and therefore has issued a section 7 report under BORA.
    
24. In a properly functioning democracy, that section 7 report would be the end of this bill. Unfortunately, our BORA is deficient. Despite the recommendations that BORA should override other laws, as equivalent laws do in almost every other country, BORA section 4 establishes that other laws override BORA.
    
25. The Council remains steadfast in our support for a Bill of Rights Act which is supreme law.

Conclusion

26. This bill limits seven BORA rights, property rights, our right to be healthy, and interferes with the proper functioning of government. Against these many and serious losses of liberty this bill proposes to control what at worst is a nuisance. This bill is completely unproportional and must not proceed.

Recommendation 11

Recommend that this bill does not proceed.

27. The Council thanks members of the Committee for their time and consideration of our submission.