Bright v Police [2009] NZCA 187; [2009] 3 NZLR 132 (15 May 2009)

Last Updated: 2 February 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA796/2008
[2009] NZCA 187

BETWEEN PENELOPE MARY BRIGHT
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 1 April 2009

Court: Glazebrook, Hammond and Chambers JJ

Counsel: Appellant in Person
F E Guy Kidd and B C L Charmley for Respondent

Judgment: 15 May 2009 at 3.00 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

2. The answers to the questions of law posed in Andrews J’s decision on the leave to appeal are set out at [52] to [53].

____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)

Table of Contents

Para No
Introduction [1]
Background [4]
Judge Hubble’s decision [11]
Andrews J’s decision [16]

Question 1: Does the LGOIM Act provide a presumption
for attendance by the public at council meetings but
subject to the right of the person presiding to require the
removal of a member of the public? [22]

Question 2: May the LGOIM Act and the Trespass Act
be applied and resorted to, where appropriate, in any
particular situation arising out of the attendance by the
public at a council meeting? [29]

Section 13(c) of the Trespass Act [30]

Compatibility of the LGOIM Act and Trespass Act? [33]

Is the LGOIM Act a code? [38]

Valid warning [41]

Discriminatory application? [44]

Summary of requirements before the Trespass Act can be invoked [47]

Was the requirement of reasonableness met in this case? [49]

Answers to questions [52]

Result [55]

Introduction

[1] On 11 September 2007, Ms Bright was convicted by Judge Hubble of one charge of trespass under the Trespass Act 1980. The Judge held that Ms Bright had trespassed on the Auckland Town Hall on 23 November 2006, having been given a warning to leave and having refused to do so.
[2] On 30 May 2008, in Bright v Police HC AK CRI 2007-404-000301, Andrews J dismissed Ms Bright’s appeal against that conviction. On 12 December 2008, in Bright v Police HC AK CRI 2007-404-000301, Andrews J gave Ms Bright leave to appeal against the decision on the following two questions of law:

(a) Was Andrews J correct in holding that the Local Government Official Information and Meetings Act 1987 (the LGOIM Act) provides a presumption for attendance by the public at council meetings, but that is subject to the right of the person presiding of the meeting to require a member of the public to be removed?

(b) Was Andrews J correct in holding that the LGOIM Act and the Trespass Act may be applied, and resorted to, where appropriate, in any particular situation arising out of the attendance by the public at a council meeting?

[3] Before dealing with those questions, we set out the factual background in more detail and summarise the decisions in the courts below.

Background

[4] On 23 November 2006, the Auckland City Council held a meeting in the Council Chambers at the Auckland Town Hall. It was chaired by the then Mayor, Mr Dick Hubbard, and attended by 20 council members, as well as some 150 members of the public, including Ms Bright. The agenda for the meeting had been published beforehand and included an item relating to the location of the proposed “National Stadium”. This was, at that time, a matter of some urgency. The Council was required to respond within a two-week period to an offer made by Central Government to contribute to the construction of a stadium on the Auckland Waterfront to be built in time for the Rugby World Cup in 2011. The Council had set up a website on this issue, which encouraged the making of submissions either through the website or by letters to the Council.
[5] The LGOIM Act does not deal with public speaking rights at council meetings. Neither does the Local Government Act 2002 (LG Act 2002), although that Act does deal with consultation requirements for local authorities generally. However, order 2.13.1 of the Council’s Standing Orders provides that an individual who wishes to be heard at a Council meeting on an agenda item may apply to make a “deputation”. Order 2.13.1 provides that an application for admission as a deputation must be lodged with the Chief Executive Officer of the Council at least seven clear days before the date of the meeting concerned and that any application must be approved by the chairperson of the meeting. That Standing Order also provides that requests for deputations that are repetitious or offensive may be refused. Standing Order 2.13.2 provides that, notwithstanding Standing Order 2.13.1, if the matter is one which in the opinion of the chairperson is one of urgency or major public interest, the chairperson may determine that the deputation be received.
[6] Ms Bright did not apply for a deputation within the time specified in Standing Order 2.13.1. The day before the meeting, however, she sent an e-mail to the Council’s Services Manager, Mr Burden, requesting the right to speak at the meeting in relation to “due process” with regard to the Stadium issue and on Auckland regional governance issues generally. Her request was refused in a letter from Mr Burden. This was on the basis that the Mayor had ruled that there would be no deputations received on the Stadium issue, given the tight timeframe for the decision and the very full agenda for the meeting. Ms Bright was told that submissions on the Stadium issue would be received through the website and that the public could also write to the Council or telephone the call centre. She was reminded that her request for a deputation had been received out of time. It was also noted that Ms Bright had been heard twice on regional governance issues and that any deputation on that subject area would accordingly be repetitious.
[7] At the meeting itself, the “National Stadium” issue was the fifth item on the agenda. When the meeting reached this item, the Mayor announced that there were no deputations that night. At that point Ms Bright and her supporters interjected to say that all requests for deputations, in particular their own, had been declined. Ms Bright then stood and unfurled a banner, approximately one metre by one and a half metres on which was the following:

Mayor Hubbard’s DICKtatorship is a CEREAL matter – don’t buy it.

[8] The Mayor asked Ms Bright to take the banner down. Following an exchange with Ms Bright, the Mayor again asked her to take the banner down and said that, if she did not, he would exercise his rights under Standing Orders to have her removed from the meeting. Ms Bright did not take the banner down or leave the meeting. The Mayor then said that he was giving her a second warning to take the banner down. She did not do so and, among other things, said that it was “five nil to [her]”, a reference to a number of previous District Court judgments, discussed at [10] below. Referring to the Standing Orders, the Mayor then asked Ms Bright “for the last time” to desist. When she did not do so and made a comment that the Mayor was being “railroading and undemocratic,” he asked Ms Bright to desist from making interruptions. Ms Bright continued to speak, upon which the Mayor (referring to s 50 of the LGOIM Act and Standing Order 2.24.1) ruled that Ms Bright was being disorderly. He required Ms Bright to leave immediately and adjourned the meeting to allow that to occur.
[9] According to the sequence, as found by the Judge, Ms Bright then folded the banner and sat down. Ms Bright says that she had folded the banner before the Mayor adjourned the meeting. Ms Bright, however, agrees that she did not leave the meeting when asked to do so. It is common ground that Ms Bright caused no further disruption after she had folded the banner. After an interval, the police arrived and, Judge Hubble found, also warned Ms Bright to leave the building. On her failure to do so, she was arrested. She was held in custody overnight, as she refused to undertake not to return to the Town Hall. She was subsequently charged with trespass under ss 3(1) and 11(2)(a) of the Trespass Act.
[10] We record at this point that Ms Bright, on a number of previous occasions, has been charged with the offence of trespass following her attendance at council meetings. A prosecution had been dismissed in May 2006 on the grounds that the Council did not properly follow procedures for excluding members of the public from a meeting, as set out in s 48 of the LGOIM Act. A second prosecution was dismissed in June 2006 on the grounds that declining Ms Bright’s request to speak at a council meeting had not been established to be lawful. A third prosecution in August 2006 was dismissed because the Council had not strictly complied with its Standing Orders in declining a deputation request from Ms Bright. A fourth prosecution was dismissed in November 2006, again because the Council had not properly complied with s 48 of the LGOIM Act when attempting to conduct business in the absence of the public.

Judge Hubble’s decision

[11] The Judge first considered the wording of Standing Order 2.13.1. He concluded that, provided a meeting was open to the public and transparent in its proceedings, the Council was entitled to conclude that deputations should not be received at that meeting. In his view, neither the LGOIM Act or the Standing Orders provide that deputations can only be declined if they are repetitious or offensive. The Judge concluded that the Mayor had not acted illegally in declining to accept Ms Bright’s deputation and that, therefore, she had no speaking rights at the meeting.
[12] The Judge then turned to the alleged trespass, noting first that, under s 50 of the LGOIM Act and Standing Order 2.24.1, the chairperson of a meeting may require a member of the public to leave a meeting. If the person refuses or fails to leave, a constable or officer of the Council may remove or exclude the person. Before requiring a member of the public to leave a meeting, however, the chairperson must believe on reasonable grounds that the behaviour of that person is likely to prejudice or to continue to prejudice the orderly conduct of the meeting if the person is permitted to remain in that meeting.
[13] Judge Hubble was satisfied on the evidence that the Mayor believed, on reasonable grounds, that the meeting on 23 November 2006 was likely to be prejudiced by Ms Bright’s continued presence and that the Mayor was thus within his rights to ask her to leave. The Judge further concluded that Ms Bright refused to leave the meeting and that, accordingly, the assistance of a constable was called upon to effect her removal.
[14] The next question for the Judge was whether there had been a trespass. The Judge said that a charge under the Trespass Act arises if, after being warned to leave a place by an occupant of the place, the person so warned neglects or refuses to leave. The Judge did not accept Ms Bright’s submission that, as a ratepayer, she had a right of access to the Council Chambers. Rather, he considered that individuals have rights of access to council buildings during normal office hours or when the buildings are open to the public for special meetings or functions. However, the lawful occupier has the right in certain circumstances to demand that an individual leave.
[15] Judge Hubble held that the Mayor was a person in lawful occupation of the Town Hall premises and the Council Chambers and that Mr Burden was an employee acting under the authority of the Mayor. The Judge also accepted Mr Burden’s evidence that he had asked Ms Bright to leave the premises after she had failed to comply with the request of the Mayor to leave the meeting. The Judge was satisfied that Mr Burden’s request was not made capriciously or without any basis in that Ms Bright had failed to comply with the Mayor’s lawful request that she leave the meeting pursuant to s 50 of the LGOIM Act. Thus, the Judge was satisfied that Ms Bright had been warned to leave, as required by s 3(1) of the Trespass Act. He was also satisfied that, by neglecting or refusing to do so, Ms Bright had committed the offence of trespass.

Andrews J’s decision

[16] Andrews J accepted that, under s 47 of the LGOIM Act, there is a presumption in favour of attendance by the public at council meetings, but she held that this is not an unfettered right. It is subject to the right of the person presiding over the meeting to require a member of the public to leave under s 50 of the LGOIM Act. In Andrews J’s view, because the LGOIM Act and the Trespass Act co-exist, both may be applied or resorted to, where appropriate, as they create distinct and separate rights and obligations. The fact that Ms Bright was in a Council meeting and removed pursuant to the LGOIM Act did not affect her obligation to leave the premises when warned to do so by the occupier under the Trespass Act.
[17] Andrews J considered s 54 of the LGOIM Act, which provides that any provision of any enactment in relation to the attendance of the public at local authority meetings shall be read subject to the provisions of Part 7 of the Act (which includes ss 47 and 50). As the attendance of the public at meetings can be curtailed under Part 7 of the LGOIM Act, Andrews J held that s 54 of the LGOIM Act does not exclude the operation of other complementary enactments (such as the Trespass Act) and does not give the LGOIM Act supremacy over other such enactments.
[18] Further, Andrews J considered that Ms Bright’s right of freedom of speech under the New Zealand Bill of Rights Act 1990 (the Bill of Rights) was qualified in that it had to be exercised in accordance with the provisions of the LGOIM Act and the Council’s procedural rules. She also stated that it was further qualified by the application of the Trespass Act. Andrews J noted that Ms Bright’s request for a deputation was made out of time. Further, she held that Judge Hubble was correct that, under the Council’s Standing Orders, it is open to the Council not to receive any deputations at a meeting, provided that the meeting is open to the public and transparent in its proceedings.
[19] Andrews J held that Judge Hubble was correct to find that the Mayor was in lawful occupation of the Town Hall premises and the Council Chambers, and that he (and Mr Burden acting under his authority) was entitled as occupier to ask Ms Bright to leave the premises. She was also not persuaded that Judge Hubble was wrong to conclude that Mr Burden (and the police constable) had warned Ms Bright to leave, pursuant to the Trespass Act.
[20] Andrews J also rejected a submission that Ms Bright was entitled to be acquitted on the basis of the earlier District Court judgments (referred to at [10] above) where charges of trespass were dismissed. Andrews J held that those judgments did not provide Ms Bright with any assurance that she had a right to remain on Council premises. The dismissal of the charges in each case turned on whether proper procedures had been followed for declining her speaking rights or for her removal, depending on the issue in the particular case. Ms Bright could not take it from the judgments that she could never be the subject of a trespass charge.
[21] Ms Bright had further submitted that the Mayor’s request that she leave the meeting and her subsequent removal from the Town Hall premises were unnecessary, because she had folded up the banner and sat down. Andrews J held that Ms Bright’s “passive resistance” was irrelevant to the question of whether she was a trespasser. Once she had been warned to leave the premises and refused or neglected to do so, she committed the offence of trespass, whether her refusal to leave was active or passive.

Question 1: Does the LGOIM Act provide a presumption for attendance by the public at council meetings but subject to the right of the person presiding to require the removal of a member of the public?

[22] There is no doubt that s 47 of the LGOIM Act contains a presumption in favour of allowing attendance by the public at Council meetings. It provides:

47 Admission of public to meetings of local authorities

Except as otherwise provided by this Part of this Act [Part 7], every meeting of a local authority shall be open to the public.

[23] However, Andrews J was clearly correct to hold that the presumption is subject to the other provisions in Part 7. These include the powers in s 48 of the Act to exclude the public from meetings and the power in s 50, which allows the person presiding at the meeting to require a member of the public to leave if the person believes on reasonable grounds that the behaviour of that person will prejudice the orderly conduct of the meeting. Section 50 provides:

50 Maintenance of order

(1) The person presiding at any meeting of any local authority may, if that person believes, on reasonable grounds, that the behaviour of any member of the public attending that meeting is likely to prejudice or to continue to prejudice the orderly conduct of that meeting if that member of the public is permitted to remain in that meeting, require that member of the public to leave the meeting.

(2) If any member of the public who is required, pursuant to subsection (1) of this section, to leave a meeting of a local authority—

(a) Refuses or fails to leave the meeting; or

(b) Having left the meeting, attempts to re-enter the meeting without the permission of the person presiding at the meeting,—

any constable, or any officer or employee of the local authority, may, at the request of the person presiding at the meeting, remove or, as the case may require, exclude that member of the public from the meeting.

[24] As we understand her position, Ms Bright in fact accepts that a person’s right to be present at a council meeting under s 47 is subject to s 50. This means that if she was validly asked to leave by the mayor under s 50, she no longer had any right of attendance at the meeting. Ms Bright, however, maintains that s 50 was not validly invoked in her case. She submits first that Judge Hubble and Andrews J were wrong to hold that the Mayor was entitled to turn down her request for a deputation. In her submission, the LGOIM Act and the provisions of the LG Act 2002, as well as the Council’s Standing Orders, mean that her request for a deputation had to be accepted, provided it was not repetitious or offensive.
[25] That issue is not validly before us in terms of Andrews J’s leave decision. Even if it were, however, we would not accept the submission. There is no right under the LGOIM Act for the public to exercise speaking rights at Council meetings. The same applies to the LG Act 2002. In terms of the Council’s Standing Orders and the circumstances of the meeting, Judge Hubble’s and Andrews J’s conclusions on this issue summarised at [11] and [18] above, are clearly correct. While the Standing Orders could be more happily worded, we agree with the conclusion of Judge Hubble and Andrews J that deputations may be refused for reasons other than that they are repetitious or offensive. In this case, the refusal of any deputations and Ms Bright’s in particular was justified for the reasons given by Mr Burden.
[26] Having said this, there may be times when the refusal of a deputation which is not repetitious or offensive may be unreasonable in terms of the Standing Orders in light of the principles in s 14 of the LG Act 2002 and the Bill of Rights. For example, there may well have been an issue in this case if the Mayor had received a deputation from those in support of the waterfront proposal but refused a deputation from the opposing viewpoint. That was not, however, the case.
[27] Ms Bright’s next submission is that the factual basis was lacking for Judge Hubble’s conclusion that the requirements of s 50 of the LGOIM Act were satisfied. In her submission, her behaviour was not disorderly.
[28] These factual issues are not before us. Ms Bright is bound by Judge Hubble’s factual findings, which were upheld by Andrews J. Indeed, Ms Bright does not in the main contest the facts but, as we understand it, says that she was entitled to act as she did. In any event, the factual findings made were clearly available on the evidence. Judge Hubble found that Ms Bright interrupted the meeting and unfurled a banner with an offensive personalised attack on the Mayor and then refused to take it down when asked. She disrupted the meeting with a number of exchanges with the Mayor, leading to the meeting having to be adjourned. Although Ms Bright says that she took the banner down before the meeting was adjourned, this is of little moment as the disruption had already occurred. On the basis of what had occurred up to the point the banner was taken down, the Mayor was (as Judge Hubble found) entitled to conclude that there was likely to be continuing disruption of the meeting in terms of s 50 of the LGOIM Act.

Question 2: May the LGOIM Act and the Trespass Act be applied and resorted to, where appropriate, in any particular situation arising out of the attendance by the public at a council meeting?

[29] Ms Bright makes a number of submissions under this head, which we examine in turn. We then set out a summary of the requirements that must be met before the Trespass Act can be invoked.

Section 13(c) of the Trespass Act

[30] Ms Bright’s first argument is that she had a lawful right of entry to the Council meeting under s 47 of the LGOIM Act and that, therefore, s 13(c) of the Trespass Act rules out the application of that Act. Section 13(c) provides that nothing in the Trespass Act shall restrict the provisions of any enactment conferring a right of entry on any land.
[31] The police accept that there is a presumption in favour of attendance by the public at council meetings under s 47 of the LGOIM Act. However, in their submission, s 47 does not confer an absolute right of entry to land. It is, on its face, a qualified right allowing open meetings “except as otherwise provided by this part [Part 7] of this Act”. The removal provisions found within s 50 fall within Part 7 of the LGOIM Act. Accordingly, the openness of meetings and the right of entry of any person is subject to the ability of specified persons to remove persons whose behaviour “is likely to prejudice or continue to prejudice the orderly conduct of that meeting”.
[32] We accept the police’s submission. Section 13(c) of the Trespass Act would prevent the operation of that Act while the person had a right of attendance in accordance with s 47 of the LGOIM Act. However, as soon as the presumption in favour of attendance is displaced (as it would be, for example, if s 50 is validly invoked), then there is no longer any right of attendance or entry and s 13(c) of the Trespass Act cannot apply. What this does mean, however, is that, unless and until the presumption in s 47 of the LGOIM Act is displaced, the Trespass Act can have no application.

Compatibility of the LGOIM Act and Trespass Act?

[33] Ms Bright’s next submission is that the Trespass Act and the LGOIM Act are two pieces of legislation whose underpinning purposes are diametrically opposed. The overarching purpose of the Trespass Act is to keep people off private property to which they have no lawful right of access. By contrast, the purpose of the LGOIM Act is to encourage citizens to attend venues where local government democracy is practised in order to participate in the actions and decisions of local authorities. Ms Bright submits that the Trespass Act should not apply at a time when a meeting of the local authority is open to the public, as it was in this case. It is Ms Bright’s submission that the application of the Trespass Act was neither appropriate nor lawful.
[34] The police agree that the removal provisions of the LGOIM Act and the offence creating provision of the Trespass Act serve different purposes. However, they differ from Ms Bright on the nature of the provisions. In their submission s 50 of the LGOIM Act provides an immediate mechanism by which a chairperson can ensure that a person disrupting, or likely to disrupt a meeting, is removed from the meeting so that the meeting can continue to consider its business in an orderly fashion. The Trespass Act is, on the other hand, concerned with criminalising and punishing behaviour, which may act as a specific deterrent to a person involved. In the police’s submission, the fact that the provisions have quite different purposes supports the argument that they can both be used.
[35] Further, the police submit that council chambers are a “place” and a lawful occupier has the power to warn a person to leave that “place” pursuant to s 3 of the Trespass Act. Decisions of this Court and the High Court have held that the Trespass Act applies to other public places, including the buildings and grounds of Parliament (see Police v Walker [1977] 1 NZLR 355 (CA) and Police v Beggs [1999] 3 NZLR 615 (HC)). It can also apply to courthouses (see Bright v Police HC AK CRI 2006-404-133, 27 October 2006, at [39]) and at the offices of the Buller District Council during a meeting of the West Coast Development Trust (see Terry v Police HC GRY AP5/01 18 December 2001). In the police’s submission, there is no reason why council chambers should be immune from the coverage of the Trespass Act when the buildings and grounds of Parliament and courthouses are not.
[36] Ms Bright is clearly incorrect in her submission that the Trespass Act is designed to keep people off private property. As the police point out, it can also be used in relation to public places. This applies even to places where there is a statutory right of access to the public, such as that contained in s 138(1) of the Criminal Justice Act 1985. It also applies even where there is no specific statutory power of removal, such as the one found in the LGOIM Act.
[37] We also accept the police’s submission that the fact that the two Acts have different purposes does not mean that they cannot both operate and each continue to fulfil their (different) purposes. There is, in our view, nothing inconsistent between a removal power in one statute (the LGOIM Act) and the criminalising of the conduct in refusing to leave once s 50 of the LGOIM Act has been validly invoked. However, as noted above at [32], the Trespass Act cannot operate until the presumption of attendance in s 47 of the LGOIM Act has been displaced.

Is the LGOIM Act a code?

[38] Ms Bright’s next submission is that the removal of persons deemed “disorderly” at a meeting of a local authority is governed by s 50 of the LGOIM Act, which is a code. Section 50 allows the removal from the meeting of those whose behaviour is disorderly. That is the extent of the powers.
[39] The police submit that, as the LGOIM Act does not have offence creating provisions, it cannot be said that it constitutes a code such that the Trespass Act cannot be used. In their submission, the situation is different to that of the Sale of Liquor Act 1962, which had offence provisions in s 188(5) accompanying the power to refuse admission or order the removal of persons: see the decision in Police v Kanuta [1987] 1 NZLR 629 (HC). See also the discussion of this issue in relation to the Racing Act 1971 in Bailey v Police HC CHCH A145/00, 13 November 2000 at [14] – [15].
[40] We do not consider that the LGOIM Act provisions are a code. For a start, s 50 can only operate to require a disruptive person to leave a meeting but not to leave the building. Further, as the police submit, the LGOIM Act does not contain any offence provisions. It thus does not provide comprehensive coverage. Were the only power a removal power not backed up by any further sanctions, this would give those disrupting a meeting an incentive to refuse to leave a meeting. This would be unsatisfactory. The exercise of removal powers has the potential to take time and to cause further disruption. There is always the risk of injury that may occur in the course of any forced removal.

Valid warning?

[41] Ms Bright’s next submission is that she was not properly warned in relation to the Trespass Act.
[42] Ms Bright is bound by Judge Hubble’s factual findings that Mr Burden and the constable warned her to leave and that these warnings had been given after the powers under s 50 of the LGOIM Act had been validly invoked by the Mayor. In any event, we understand that Ms Bright accepts that she was asked to leave the meeting on a number of occasions.
[43] It may be that Ms Bright’s concern is that the Trespass Act had not been specifically mentioned when she was warned to leave by Mr Burden and that she was not warned of the possible criminal consequences of any failure to do so. This is, however, not necessary. All that is required under the Trespass Act is a warning to leave by an occupier. There is no requirement to warn a person that the Trespass Act is being invoked and that this has possible criminal consequences. In any event, in this case, Ms Bright was well aware of the possible criminal consequences from her earlier court experiences – see at [10] above.

Discriminatory application?

[44] It is Ms Bright’s final submission that either all members of the public had an equal statutory right of access to the Town Hall at the relevant time or none had the right. She submits that as all 150 members of the public present at the meeting had a statutory right of access to the Town Hall, then the Trespass Act could not lawfully, at that time, be arbitrarily applied to only one member of the public, namely Ms Bright.
[45] The police submit that application of the Trespass Act was not arbitrary or selective. Ms Bright was the only one present at the meeting whose conduct was found likely to prejudice the orderly conduct of the meeting and thus the Trespass Act was not arbitrarily applied.
[46] This point is not before us. However, had it been, we would have accepted the police’s submissions on this point. The other members of the public had a statutory right of presence under s 47 of the LGOIM Act and thus the Trespass Act could not apply to them – see at [32] above. Ms Bright had lost that statutory right once s 50 of the LGOIM Act had been validly invoked.

Summary of requirements before the Trespass Act can be invoked

[47] The Trespass Act cannot be invoked until the statutory right to be present at a meeting under s 47 of the LGOIM Act has been displaced. Where s 50 of the LGOIM Act applies, this means that the person presiding at the meeting must believe on reasonable grounds that the behaviour of any member of the public attending the meeting is likely to prejudice or to continue to prejudice the orderly conduct of the meeting if that person is permitted to remain at the meeting. The person presiding at the meeting must require the disruptive individual to leave the meeting. After that has occurred, the disruptive individual has no statutory right of attendance at the meeting. Before the criminal sanctions under the Trespass Act can apply, however, the requirements of s 3(1) of the Trespass Act must then be complied with. This means that the individual must (after the s 47 presumption is displaced) be warned by an occupier to leave the premises and refuse to do so.
[48] In addition, as the police accept, in cases concerning trespass in public places, the occupier must exercise the powers under the Trespass Act reasonably in the circumstances and, in particular, so that the rights and freedoms in the Bill of Rights are limited only to the extent reasonably necessary. The type of considerations that may be relevant to such a determination were set out in Police v Beggs at 629 – 632. See also Terry v Police HC GRY CRI 2006-418-000009, 11 May 2007 at [23] [32], Bright & Ethell v Police HC AK CRI 2006-404-133 27 October 2006 at [41] – [45] and Rameka (Aka Kere) v Police HC WHA CRI 2007-488-0071 15 February 2008 at [24] – [25].

Was the requirement of reasonableness met in this case?

[49] In the police’s submission, the exercise of powers under the Trespass Act was reasonable in the factual situation which developed in this case. Ms Bright had failed to apply for admission to make a deputation within the seven day timeframe. A late application had been declined. Ms Bright chose not to make submissions via the website or by letter. Her actions took place inside the Council Chambers during the course of a meeting. The meeting had a full agenda, including the urgent issue of building a National Stadium on Auckland’s Waterfront. Ms Bright displayed a banner which was offensive and did not take it down when requested on three occasions. Ms Bright continued to interject and interrupt the Mayor, despite being asked to desist. She failed to leave the premises when asked to do so and did not leave until arrested by the police.
[50] Ms Bright did not specifically deal with this issue in her submissions as her contention is that the Trespass Act can never be invoked in cases where the LGOIM Act applies. We have already rejected this submission. However, implicit in her submissions was the contention that it was unreasonable to resort to the Trespass Act in the circumstances.
[51] This issue is not before us, but the matters identified by the police are legally capable of sustaining a submission that the powers were exercised reasonably. Indeed, it would usually be the case that a valid exercise of s 50 of the LGOIM Act powers would mean that there has been antecedent behaviour that would make the invoking of the Trespass Act reasonable. We note that whether the Trespass Act powers were used reasonably was considered by Judge Hubble who held that they were, given Ms Bright’s earlier conduct: see at [15] above.

Answers to questions

[52] Was Andrews J correct in holding that the LGOIM Act provides a presumption for attendance by the public at council meetings, but that is subject to the right of the person presiding of the meeting to require a member of the public to be removed? The answer is in the affirmative.
[53] Was Andrews J correct in holding that the LGOIM Act and the Trespass Act may be applied, and resorted to, where appropriate, in any particular situation arising out of the attendance by the public at a council meeting? This question is not happily worded in that it does not specify the particular circumstances it envisages. The issue, however, is whether the Trespass Act can be used in circumstances where the LGOIM Act applies. The answer is in the affirmative.
[54] However, the presumption of public attendance at meetings in s 47 of the LGOIM Act has first to be displaced. This means that s 50 of the LGOIM Act (or one of the other limiting provisions, such as s 48) has to have been validly invoked. After the s 47 presumption has been displaced, there must also have been, in terms of s 3(1) of the Trespass Act, a warning given by an occupier to leave the premises and a refusal to do so. The invoking of the Trespass Act would also have to be reasonable (taking into account the Bill of Rights). This requirement would usually be satisfied in cases where s 50 of the LGOIM Act applies because of the antecedent behaviour leading to the invocation of that section.

Result

[55] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington