Schubert v Wanganui District Council

• Jurisdiction: New Zealand
• Judge: Clifford J
• Judgment Date: 03 March 2011
• Neutral Citation: [2011] NZHC 48
• Docket Number: CIV-2010-483-230
• Court: High Court
• Date: 03 March 2011

Under Part 1 of the Judicature Amendment Act 1972

In the Matter of a decision made pursuant to the Wanganui District Council (Prohibition of Gang Insignia) Act 2009

Between

Philip Ernest Schubert

Applicant

and

Wanganui District Council

Respondent

[2011] NZHC 48

CIV-2010-483-230

IN THE HIGH COURT OF NEW ZEALAND

WANGANUI REGISTRY

Application for judicial review of the Wanganui District Council (Prohibition of Gang Insignia) Bylaw 2009 — applicant member of Hells Angels — bylaw prohibited the wearing of gang insignia in the wider Wanganui urban area — bylaw made under Wanganui District Council (Prohibition of Gang Insignia) Act 2009 which allowed the defendant to ban gang insignia in specified places — whether bylaw was ultra vires — whether bylaw was a disproportionate restriction on the right to freedom of expression under s14 New Zealand Bill of Rights Act 1990 — if yes, could it be saved by s4 New Zealand Bill of Rights Act 1990 (other enactments not affected).

Appearances:

D Webb and S Rollo for the applicant

H Wilson and H Brown for the respondent

JUDGMENT OF Clifford J

CONTENTS

Overview of legal issues	[1]
Background	[5]
Is the Bylaw in breach of s 5(6) of the Wanganui Act?
Section 5(6)	[18]
The Bylaw	[24]
The interpretation of s 5(6)	[31]
NZBORA
General NZBORA considerations	[59]
Is the Bylaw a disproportionate restriction on the right to freedom of expression in breach of NZBORA?	[95]
Is the Bylaw nevertheless intra vires the Wanganui Act, and therefore saved by s 4 of NZBORA?	[131]
Result	[167]
Costs	[170]

Introduction

1 The Wanganui District Council (Prohibition of Gang Insignia) Act 2009 (“the Wanganui Act”), a local act, enables the Wanganui District Council (“the Council”) to make bylaws specifying public places in the Wanganui district (“the District”) as places where persons may not display gang insignia at any time. 1 On 31 August 2009 the Council made the Wanganui District Council (Prohibition of Gang Insignia) Bylaw (“the Bylaw”).

2 Mr Schubert, the applicant, is a member of the Hells Angels motorcycle gang, which he describes as a club. He applies for judicial review of the Bylaw.

3 Mr Schubert focuses his challenge on the geographic extent of the prohibition on the display of gang insignia introduced by the Bylaw. Mr Schubert says that, contrary to s 5(6) of the Wanganui Act, the Bylaw in effect specifies all public places in the District as places where persons may not display gang insignia. The Bylaw is therefore ultra vires (ie not authorised by) the Wanganui Act. Further, the Bylaw is, in terms of s 5 of the New Zealand Bill of Rights Act (“NZBORA”), for the same reason, a disproportionate restriction on the right to freedom of expression. The Wanganui Act does not mandate such a breach of NZBORA. The Bylaw is therefore not authorised by the Wanganui Act for that reason as well. Even if the Bylaw is authorised by the Wanganui Act, the Council erred in law when it made the Bylaw as it failed to consider the values of NZBORA. The Bylaw is also invalid in terms of s 17 of the Bylaws Act 1910. For all or any of these reasons, this Court should declare the Bylaw invalid.

4 The Council's position is that the Bylaw is authorised by the Wanganui Act. The Bylaw does not, in effect, specify all public places in the District as ones where persons may not display gang insignia. Nor is the Bylaw – in terms of its geographic coverage – a disproportionate restriction on the right to freedom of expression in breach of NZBORA. However, even if the Bylaw was for that reason an otherwise

disproportionate restriction on that right, Parliament mandated that outcome when it passed the Wanganui Act. Therefore, if the Bylaw otherwise breaches NZBORA, it is still authorised by the Wanganui Act and, as regards NZBORA, is “saved” by s 4. Finally, the Council was not required to consider the values of NZBORA when it made the Bylaw. But if it was, it did

Background

5 Considering Mr Schubert's various grounds of challenge to the Bylaw necessarily involves discussing the background to the Council's promotion of the Wanganui Act, and its making of the Bylaw. An important part of that narrative is the Council's concerns, over time, at the negative impact gang activities have had on Wanganui and its citizens. The Council's attention was drawn relatively early on in that process to the relevance of NZBORA. Consideration of Mr Schubert's challenges also necessarily involves close analysis of the terms of the Wanganui Act and the Bylaw, and their legislative history. Parliament's consideration of the implications of NZBORA for the Wanganui Act, both as originally introduced and as enacted, and for any bylaws made under the Wanganui Act, is an important part of that analysis.

6 I do not think it is necessary to go into those matters in great detail at this point. However, a relatively brief description of the background to the Wanganui Act and the Bylaw provides context for the more detailed discussion which will follow.

7 I draw that description and relevant other parts of this judgment from the affidavit material provided by the parties.

8 Mr Michael Laws, the Mayor of Wanganui at the time of the making of the Bylaw, provided an affidavit which set out a full narrative of the background to the Bylaw, and appended extensive material taken principally from the minutes of relevant Council meetings. In addition, Inspector Duncan McLeod, the Wanganui Police Area Commander, provided an affidavit which dealt with similar matters from the point of view of the Police.

9 For the applicant, two affidavits were provided by Mr Jarrod Gilbert, a sociologist studying towards a PhD on the rise and development of gangs in New Zealand. Mr Gilbert's affidavits provided a range of information relating to gangs, their traits and characteristics, in particular as to the significance and role of gang insignia. Mr Gilbert also provided views on gang violence generally, gang clashes and issues relating to the intimidation and harassment of the public by gang members.

10 By 2005, the Council and the wider Wanganui community had, understandably in my view, been concerned about the adverse impact of gang activity for a number of years. Surveys conducted by the Council and local entities showed that gang issues, “intimidation by gangs” and “the influence of gangs”, were significant issues for the youth of the town. In that year the Council began considering options for dealing with the apparent gang problem. An important Council meeting was held on 10 March 2006. That meeting was called to consider the introduction of a bylaw to help address gang related issues. At that meeting the Council was briefed by Police on gang related arrests and activity in the District. There had, during the past two weeks, been serious confrontations between the Hells Angels and Mongrel Mob gangs. Gang confrontations had taken place at two suburban service stations and at the Wanganui Hospital. People in the central business district had been intimidated by gang members' behaviour. At that meeting, and as Mr Laws puts it in his affidavit, “it was resolved that the Council was to draft a bylaw banning gang regalia from the Central Business District and all other public places in the Wanganui District”. A number of councillors were wary about the use of the phrase “all other public places.” The minutes of that meeting record that “public places are defined and could be parks, reserves and beaches with congregations of the public on lawful business”.

11 In April 2006 a draft bylaw was presented to the Council and approved. I was not provided with a copy of that draft bylaw. At that meeting, Mr Laws said that “public places had been defined and were the parks and reserves owned by the Council, shopping precincts in Wanganui – Aramoho, Gonville, Springvale and Wanganui East”.

12 In December 2006 the Council resolved that the proposed bylaw, prohibiting the wearing of gang patches in the Central Business District and other public places, be added to the Council's referendum for 2007.

13 In February 2007 the Council decided that, rather than promulgate the bylaw under the Local Government Act 1974, it would support the introduction of a local bill to give the Council such bylaw-making powers. Mr Laws explains in his affidavit that that decision was “taken to ensure that arguments that the proposed bylaw might infringe on the rights protected by the New Zealand Bill of Rights 1990 (the “NZBORA”) were appropriately addressed”. At that point the Bylaw was described as “a bylaw to prohibit the wearing of gang insignia in public places, including the Central Business District, parks and other recreational areas”.

14 A local bill was drafted. 2 The Wanganui District Council (Prohibition of Gang Insignia) Bill (“the Bill”) was introduced to Parliament by Wanganui MP, Chester Burrows, on 20 November 2007. This initiative was supported by the Wanganui Police, the National Police Headquarters, and the New Zealand Police Association. The Bill had its first reading on 2 and 16 April 2008.

15 On 20 February 2008 the Attorney-General reported to Parliament, pursuant to s 7 of NZBORA, that the Bill constituted a limitation on the right to freedom of expression that was not reasonably justifiable.

16 The Law and Order Select Committee considered the Bill in 2008. It reported the Bill back, with amendments, to Parliament on 29 September 2008. The Wanganui Act received assent on 9 May 2009.

17 The Bylaw was released for public consultation in June and July of 2009. A Council subcommittee considered submissions in July and August, and on 31 August the Council accepted the recommendation of that subcommittee that the Bylaw be introduced. The Bylaw came into force on 1 September 2009.

Is the Bylaw in breach of...