Auckland Council v The Occupiers of Aotea Square DC Ak
| Jurisdiction | New Zealand |
| Judge | D M Wilson |
| Judgment Date | 21 December 2011 |
| Court | District Court |
| Docket Number | CIV-2011-404-002492 |
| Date | 21 December 2011 |
In The Matter of the Local Government Act 2002
and
In The Matter of an Application For An Injunction Under
[2011] NZDC 2126
CIV-2011-404-002492
IN THE DISTRICT COURT AT AUCKLAND
Application for an injunction to restrain the defendants from breaching the provisions of a bylaw governing the use of public places — respondents occupied Aotea Square in central Auckland as a protest to highlight political issues — relied onrights of freedom of expression, freedom of peaceful assembly and freedom of association under the New Zealand Bill of Rights Act 1990 as basis for occupation — whether Council had acted improperly by issuing proceedings without observing and alleged “duty to talk” to protestors — whether fundamental rights could be constrained by time — whether the bylaw was a justified limitation on freedoms enshrined in the Bill of Rights Act — use of R v Oakes test (Supreme Court of Canada).
Mr R S Burns and Ms Efwerson for the Applicant
Mr R Mansfield for the General Assembly of Occupy Auckland
Ms P M Bright representing herself
Mr Rainsfield associated person
Mr Minto for the Mana Party
Mr Carolan ofthe United Trade Union Party
JUDGMENT OF JUDGE D M Wilson Qc
On Saturday 15 October 2011 a protest march of about 3000 1 people woundits way up Queen Street in the City of Auckland to Aotea Square where a meeting was held about 4pm. Thestart of the occupation which has become known as “;Occupy Auckland” or “Occupiers Aotea Square” began when people started erecting tents at about 7 pm on the only grassed areas of the Square.
The occupation was inspired at least in part by earlier well publicised occupations of Wall Street in New York, San Francisco 2 and other places around the world.
The Occupy Movement is a global movement which its supporters see as arevolutionary wave of demonstrations and protests around the world sharing a number of common goals and values. The Global Occupy Movement shares “techniques of civil disobedience in sustained campaigns involving strikes demonstrations marches and rallies as well as the use of social media to organise communicate and raise awareness in the face of state attempts at repression and censorship” 3.
The Occupy Movement believes that the harsh reality the majority strugglewith on a daily basis is created and upheld by an elite bourgeoisie they call “the 1%” consisting of wealthy business people, bankers and individuals holding positions of power in local and national governments. In their view, the majority of the population, the “99%”, are denied freedoms, prosperity, and the trappings of modern life by the acceptance of a system which fails to benefit or reward the hard work of the majority 4.
Auckland is New Zealand's biggest city with a population in excess of 1.3 millionpeople. Aotea Square was established alongside the Auckland Town Hall as
Occupy Auckland gave no prior notice of intention to occupy Aotea Square and sought no consent from, or accommodation with, civic authorities, nearby occupiers or indeed the citizens of Auckland City in general. Occupy Auckland was of the view that it was exercising its rights to freedom of expression, peaceful assembly, and association under the New Zealand Bill of Rights Act 1990 and did not need to ask. The group has erected many tents and established the facilities of that occupation. There is a media tent, and marquees for the kitchen (which raises no concerns of health and safety), and the action space 5 for gatherings for entertainment, group discussion, peaceful assembly and protest.
The group on the whole has promoted itself with success as crime free, drugfree and alcohol free. It has sought to provide opportunities for reflection on the international economic system generally, and within New Zealand itself.
The police have regarded the occupiers as a peaceful protest group. On the evidence before me I accept that description as indeed does the Auckland Council.
From the start the three grassed areas have been dominated by tents. Estimates of the number of tents erected on the first day vary from 35 6 to 70 7. A number of the people associated with the Occupy Movement have camped there continuously. Others have come and gone. It seems that most tents have been empty
This aerial photograph of the Occupation was taken on 8 November 2011 8:
On 10 November 2011 there were 104 tents and gazebos on site. 9
The internal government of the Occupy Movement in Auckland developed gradually. It operates generally by means of general assemblies. It purports to be a leaderless group. Important decisions can only be made by general assemblies which have been held three times a week 10 in a form of “participatory democracy”.The approach is to initially seek 100% agreement 11.
The Auckland Council, while at all times specifically reserving its legal rights, from the outset recognised the right of Occupy Auckland to protest. It established an early dialogue with the occupiers to address the health and safety, water and toileting issues created by the Occupiers occupying a space which was not designed to cope with people camping there. The Council wished to negotiate and reach consensus with Occupy Auckland for an end to the Occupation. The dialogue on both sides was conducted in the main with mutual respect.
The General Assembly of Occupy Auckland formally acknowledged on 3 November 2011: “that for Auckland Council an exit strategy from Aotea Square is a priority.” 12
Initially Occupy Auckland;s web site indicated that the occupation would last 6 weeks. Then it indicated it would depart after the final of the Rugby World Cup which took place in Auckland on 23 October 2011. It did not. Then it said it would not depart before the general election on 26 November 2011 13, implying a review then. The occupation continues to this day.
On Friday 4th November 2011 Occupy Auckland published a Declaration of the Occupation” 14 which included the following phrase:
We are here, and here we stay, till we have finally roused the 99% from its long and troubled slumber.
It continued to invite further communication and liaison with Auckland Council officials including Natalie Verdouw, the Risk and Assurance Manager at the Auckland Council, and indeed the Auckland City MayorMr Len Brown. But there never was an agreement on an exit strategy.
Mr Edgerton (who prefers to be known as Chris Glen) a member of the Occupier's Council liaison team deposed on 6 December 2011:
Occupy Auckland has resolved to continue with its protest and remains committed to maintaining a peaceful and purposeful occupation. 15
He also affirms that while the Facebook page for the Occupy Auckland event limited the duration of events for six weeks, Occupy Auckland had no intention to set an end date. Alternate venues suggested by the Auckland Council of the large open green park places, Victoria Park and Albert Park, were rejected by Occupy Auckland as unsuitable and to an extent marginalising.
Auckland Council made formal requests to Occupy Auckland to meet compliance requirements relating to ongoing peaceful co-existence (never a problem apart from the odd drunken citizen), reasonable limits on noise, remaining liquor and drug free, meeting requirements of food safety, wastewater disposal, solid waste disposal, toilet usage and general safety, removal of all waste and the protection of the waterproof membrane beneath Aotea Square which prevents water damage and water leaking into the underground Civic Car Park.
The Auckland Council was created on the establishment of the Auckland Super City by the Local Government (Auckland Council) Act 2009. As from 1 November 2011, Aotea Square was vested in the Auckland Council, which holds legal title to it, 16 as successor to the Auckland City Council.
The Auckland Council has the power to regulate activity in Aotea Square because the Local Government Act 2002 gives it power to make bylaws to protect the public from nuisance, promote and maintain public health and safety and minimise the potential for anti-social behaviour in public spaces including Aotea Square which are under the control of the Council.
The Council has applied for an injunction in the District Court 17 to restrain the respondents from breaching the provisions of an Auckland Council bylaw governing the use of public places, in this case Aotea Square. Bylaw No. 20 — Public Places 2008 prohibits, amongst other things:
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(i)activity causing an unreasonable interference with the comfort and enjoyment of the public;
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(ii) damaging public property;
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(iii) overnight camping; 18
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(iv)...
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