An Auckland University law professor says a new Queenstown Lakes District Council bylaw curbing public protest may flout the Local Government Act.
Dr Kenneth Palmer was asked to look over the proposed “Control of Trading and Obstructions in Public Places” bylaw.
Despite calling the bylaw “more permissive”, QLDC has slipped the word “demonstrations” into a list of activities such as street vending, busking and events.
All activities would require council permits – including demonstrations and public meetings, such as those protesting about health services in recent years. Even individuals harmlessly handing out pamphlets on street corners would need a permit.
Palmer agrees with Mountain Scene lawyer Robert Stewart’s comments last week about Bill of Rights concerns.
“The [council permit] decision-maker must not act in bad faith nor discriminate in any unreasonable manner or without justification in respect of minority groups or persons who may wish to express different opinions from those held by a popular majority or the council,” Palmer says.
The Auckland law professor then goes further, questioning QLDC’s process under the Local Government Act.
Before passing bylaws willy-nilly, all councils must follow a two-stage process. First comes a formal decision on a bylaw being “the most appropriate way of addressing the perceived problem” – and Palmer assumes QLDC’s done that.
He’s more concerned about step two – a formal consideration on whether the proposed bylaw “gives rise to any implications under the Bill of Rights Act”.
“It is not apparent that this second procedural step has been taken,” Palmer says.
“This is important,” he stresses, because the Local Government Act prohibits bylaws which counter the Bill of Rights.
If QLDC hasn’t done step two properly, “any bylaw enacted without that [prior] consideration could be challenged and found to be invalid”.
However, Palmer says he has no issues in law regarding QLDC’s stated objectives with the bylaw, which stem from community-wellbeing functions under local government legislation.
Yet his legal opinion outlining how QLDC is required to formally decide whether its bylaw addresses “the perceived problem” throws up an entirely new question – can a council pass a bylaw if there’s no problem to solve?
Mountain Scene approached council regulatory quango Lakes Environmental, which is steering the bylaw through and will enforce much of it, to ask boss Hamish Dobbie: when was the last public demonstration in Queenstown?
“We do not have any record of any permitted demonstrations being held in Queenstown,” Dobbie says.
Submissions on the bylaw close on February 15.