Freedom Camping Bill 10 May 2011 ATTORNEY-GENERAL LEGAL ADVICE CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: FREEDOM CAMPING BILL 1. We have considered whether the Freedom Camping Bill (PCO 15180/9.0) (the Bill) is consistent with the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). We understand that the Bill is likely to be considered by the Economic Growth and Infrastructure Committee at its meeting on Wednesday, 11 May 2011. The final version of the Bill only became available on Monday 9 May 2011, and as such this advice has been drafted as a matter of urgency. 2. We have concluded that the Bill appears to be consistent with the Bill of Rights Act. In reaching that conclusion, we have considered potential issues of inconsistency with ss 18 (right to freedom of movement), 21 (right to be secure against unreasonable search and seizure) and 25(c) (right to be presumed innocent until proved guilty) of the Bill of Rights Act. Our analysis is set out below. Purpose 3. The purpose of the Bill is to address some of the negative effects of freedom camping, such as the leaving behind of human waste and litter, which cause problems for local residents and costs for local authorities and the Department of Conservation. 4. The Bill achieves its purpose by creating an infringement regime in relation to freedom camping on local authority controlled and public conservation land, in order to protect the environment, health and safety and access to public places and sites of significance for public enjoyment. It allows for camping to generally be permitted unless restricted or prohibited either through local government bylaws or through Department of Conservation freedom camping notices on conservation lands. 5. The Bill allows infringement notices, with an infringement fee of $200, to be issued where a person: camps in an area where camping is prohibited deposits litter leaves human waste; or disposes of effluent inappropriately The Bill also provides for local authorities and the Department of Conservation to take proceedings against offenders under the Summary Proceedings Act 1957, where the fine on conviction is a maximum of $20,000. The Bill provides for local authorities and the Department of Conservation to warrant each other s staff with the ability to issue infringement notices on land within the other agency s control in order to enable pragmatic management of adjoining lands of different tenure. Right to freedom of movement
Part 2 of the Bill provides that camping is permitted in local authority areas and conservation land unless it is restricted or prohibited in accordance with a bylaw made under s 11 or any other enactment (for local authority areas), or where signs are posted under s 14 or a freedom camping restriction notice is made under s 15 (in relation to conservation land). Clause 11 of the Bill provides that a local authority can make a bylaw specifying the areas, by map or description, in its district where freedom camping is restricted or prohibited as well as the restrictions that apply to freedom camping in that area. A local authority must only make a bylaw where it is satisfied that the bylaw is the most appropriate way of addressing the perceived problem, is consistent with the Bill of Rights Act, and the bylaw is necessary for one or more of the following purposes: to protect the area to protect the health and safety of people who may visit the area; or to protect access to the area. Clause 14 provides that the Department of Conservation may erect one or more signs on conservation land restricting or prohibiting freedom camping if the sign/s clearly states that freedom camping is restricted (and the restrictions that apply) or is prohibited. The sign or signs need to be clearly identified as erected with the authority of the Department of Conservation. Clause 15 provides that the Director-General of the Department of Conservation may make a freedom camping restriction notice specifying the conservation land, by map or description where freedom camping is prohibited or restricted, the restrictions that apply, and the date on which the notice comes into force. Such a notice can only be made if the Director-General has first consulted the Conservation Board that has jurisdiction over the conservation land and is satisfied that the notice is not inconsistent with any conservation Act relevant to the land, any general policy or management strategy or plan made under a conservation Act relevant to the land, or the Bill of Rights Act. Clause 16 of the Bill states that these notices must be published in the Gazette and in a daily newspaper circulated in Auckland, Wellington, Christchurch and Dunedin. However, if the Director- General is satisfied that the notice is of local or regional interest only, it may be published in a newspaper circulating throughout the region to which it relates. The Department of Conservation must: keep copies of all freedom camping restriction notices at its national office make the notices available for public inspection, without fee, at reasonable hours at the Department s offices make the notices available on the Department s website; and supply to any person, on request and on payment of a reasonable charge, a copy of the notice.
Possible Inconsistency with the Bill of Rights Act Section 18(1) of the Bill of Rights Act affirms that everyone who is lawfully in New Zealand has the right to freedom of movement and residence in New Zealand. The provisions of the Bill in Part 2, described above, appear to limit the freedom of movement of people who would otherwise be able to enter and camp in these public areas. Where a provision is found to pose a limit on a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is demonstrably justified in terms of s 5 of that Act. Following the guidance of the New Zealand Supreme Court in Hansen v R, [1] the s 5 inquiry may be summarised as: [2] (a) does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom? (b) If so, then: i. is the limit rationally connected with the objective? ii. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective? iii. is the limit in due proportion to the importance of the objective? The purpose of the restrictions in Part 2 are to provide the Department of Conservation and local authorities with the flexibility to determine where people can or cannot freedom camp on public land, and issue infringement notices for inappropriate freedom camping behaviour on local authority controlled land or public conservation land. This will allow the Department and authorities to manage the problems of littering, the leaving of human waste and the inappropriate effluent disposal associated with freedom camping, which poses a public health risk and undermines New Zealand s reputation as a clean, green tourist destination. The purpose is sufficiently important to justify some limitation on the right in s 18 of the Bill of Rights Act. There is a rational connection between restricting access to, or imposing conditions on, freedom camping in certain areas of land and protecting against public health risks and environmental degradation. In considering whether the limitation impairs the right no more than is reasonably necessary and is proportionately connected to the purpose, it is important to consider the scope of the powers to restrict freedom camping in Part 2. Bylaws made under s 11 must be geographically confined, the most appropriate way to address the perceived problem and necessary for a defined purpose. The Bylaws must also be interpreted consistently with the Bill of Rights Act, and therefore must not unreasonably limit the right to freedom of movement. The freedom camping restriction signs are transitional and expire on 30 March 2012 but are included to allow immediate implementation of the infringement regime in relation to public conservation land in time for the start of the Rugby World Cup 2011 and the anticipated increase in freedom camping activity.
The freedom camping restriction notices can only be made after consultation with the Conservation Board responsible for the conservation land and where the notice is not inconsistent with any conservation Act, or management strategy or plan that is relevant to the land. They must be publicly notified and available for inspection. The Bill s general policy statement says that it does not target backcountry campers or motorists who need to pull over to the side of the road to sleep. For the above reasons, we consider that the restrictions on freedom camping will only be able to be imposed where it is reasonably necessary to achieve the purpose outlined above. Further, the way in which the restrictions are communicated and notified, in that a notice must be published in the Gazette as well as in a daily newspaper circulated in the area, also appear to be reasonable. Therefore, Part 2 of the Bill appears to be consistent with the Bill of Rights Act. Right to be Presumed Innocent Part 3 of the Bill provides for offences, penalties and defences. Clause 17 of the Bill divides offences into two groups attracting maximum penalties of $20,000, and $5,000 upon summary conviction. Clause 17(1) provides the following strict liability offences with a maximum penalty of $20,000 upon summary conviction, or if proceeded with as an infringement offence, the amount prescribed by regulation under s 36 or $200 is the infringement fee for people who: freedom camp, or make preparations to freedom camp, in a local authority area or on conservation land in breach of a prohibition, restriction, or condition of a bylaw or freedom camping notice damage a local authority area or conservation land while freedom camping deposit human waste or any other waste other than into a waste receptacle fail or refuse to leave when requested to do so by an enforcement officer acting under s 31; and freedom camp, or make preparations to freedom camp, on conservation land within a 200 metre radius of a sign erected under s 14. Clause 17(2) provides the following offences with a maximum penalty of $5,000 upon summary conviction for people who: intentionally prevent an enforcement officer from carrying out his or her statutory functions and duties obstruct or impede an enforcement officer from carrying out his or her statutory functions and duties refuse to give information when directed to do so by an enforcement officer or give false or misleading information; or incites any other person to do any act referred to above in cl 17(2). Some statutory defences are provided in cl 21(1) where the Court is satisfied that the act or omission giving rise to the offence was due to an action or event beyond the control of the defendant and, in each case:
the action or event could not reasonably have been foreseen or prevented by the defendant; and the effects of the act or omission of the defendant were adequately remedied or mitigated by the defendant after the offence occurred. Clause 21(2) provides it is a defence (other than to the inappropriate depositing of waste) where the Court is satisfied that: the act giving rise to the offence was necessary to save or protect life or health or prevent injury or to prevent serious damage to property or to avoid actual or likely damage to the environment ; and the conduct of the defendant was reasonable in the circumstances; and the effects of the act or omission of the defendant were adequately remedied or mitigated by the defendant after the act or omission occurred. Clause 21(3) provides it is a defence to an offence of inappropriately depositing waste where the Court is satisfied that: the act giving rise to the offence was necessary in the circumstances; and the conduct of the defendant was reasonable in the circumstances; and the effects of the act were adequately remedied or mitigated by the defendant after the offence occurred. Where applicable, the defences available under ss 41A(4) and (5) of the Land Transport Act 1962, apply to the person as if the offence were a stationary vehicle offence within the meaning of that section. Clause 21 also expressly states that the defences available under this provision do not limit any other defences that may be available. Possible inconsistency with the Bill of Rights Act Section 25(c) of the Bill of Rights Act affirms the right to be presumed innocent until proved guilty according to law. This means that the prosecution in criminal proceedings must prove, beyond reasonable doubt, that the accused is guilty. The strict liability offences in cl 17(1) of the Bill give rise to a limit on s 25(c) of the Bill of Rights Act because the prosecution is not required to prove that the accused intended to commit the offence. The prosecution must only prove that the accused committed the act in question. The accused is then required to prove, on the balance of probabilities, a defence to escape liability. In other proceedings an accused must merely raise a defence in an effort to create reasonable doubt. Where an accused is unable to prove the defence, he or she could be convicted even though reasonable doubt exists as to his or her guilt. In addition to the factors in the Hansen test, listed above in the advice, we consider the following factors are relevant in assessing whether the strict liability offences can be justified under s 5 of the Bill of Rights Act: (a) the nature and context of the conduct to be regulated (b) the ability of the defendant to exonerate themselves and the risk of conviction of an innocent
person (c) the penalty level. Local authorities and the Department of Conservation are faced with ongoing costs for routine patrols, clean-up and maintenance of free camping sites. The offences and infringement regime will provide the Department and authorities with the flexibility to determine where people can or cannot freedom camp on public land and regulate inappropriate freedom camping behaviour. The Department of Conservation and local authorities consider that they need a proportionate and effective enforcement option to respond to the problems associated with freedom camping because of the risks to health and safety, environmental degradation, and undermining of our image as a clean and green tourist destination. Accordingly, the objective of the strict liability offences is to increase the likelihood of successful enforcement action to promote the objectives of the Act. An infringement regime is considered to be a low cost, simple way of addressing minor offending without, in most cases, recourse to the Courts. Summary proceedings do not represent a cost effective or proportionate response to nuisance behaviour caused by freedom camping. Court action is rarely used except for the most serious type offences, as it is considered inefficient and disproportionate to the severity of the offence, therefore no effective deterrent exists for inappropriate freedom camping behaviour of the typically small scale type. The availability of strict liability offences enforceable through an infringement regime is considered efficient and proportionate. It is also consistent with powers available to other enforcement agencies for fishing offences, stationary vehicle offences, and customs offences. We consider that the availability of defences and the ability for a defendant to exonerate themselves where there is good reason for their breach of freedom camping prohibitions, restrictions or conditions, and the relatively low level of the penalties with no prospect for imprisonment makes the limit on the right in s 25(c) justified in this context. Right to be secure against unreasonable search and seizure Clause 32 of the Bill provides that an enforcement officer [3] may seize and impound property on a local authority area or on conservation land if: the property has been or is being used in the commission of an offence; and it is reasonable in the circumstances to seize and impound the property; and before seizing and impounding the property, the enforcement officer must: direct the person orally or in writing to stop committing the offence; and advise the person orally or in writing that if he or she does not stop committing the offence the enforcement officer has power to seize and impound the property; and provide the person with a reasonable opportunity to stop committing the offence. As soon as practicable after seizing and impounding property an enforcement officer must give a notice in the prescribed form to the person in possession of the property at the time it was seized and impounded or to any person the enforcement officer ascertains is the owner of, or has an interest in, the property.
Clause 33 provides for an owner or person who has had property seized and impounded to request its return from the local authority or Department of Conservation. If the local authority or Department refuses to return the property, the person may apply to the District Court to review the decision to refuse to return the property. Clause 34 provides the power and process for disposing of impounded property that has not been returned within 6 months. It provides for a 14 working day notice period to the owner and person it was seized from. Possible inconsistency with the Bill of Rights Act Section 21 of the Bill of Rights Act protects the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise. The key consideration is the definition of reasonableness. Section 21 is to be applied without reference to the provision for justified limitation of protected rights in s 5 of the Bill of Rights Act. The Supreme Court has held that an unreasonable search or seizure is not open to justification: [4] In considering whether the rules are inconsistent with s 21 it is unnecessary to proceed through a step by step analysis in accordance with R v Hansen, as the High Court Judge did, because s 5 of the Bill of Rights is not in play. A search or seizure which is unreasonable in terms of s 21 cannot be justified in terms of s 5. There is no power of detention to effect the seizure and impounding of property. Judicial review is available to question the lawfulness of a particular seizure. If the seizure is found to be unreasonable, the Court can order the return of the unlawfully seized property. [5] We consider it is not unreasonable, given the inbuilt safety mechanisms of the requirement for an infringement offence to be committed, notice given, and it being reasonable in the circumstances, that enforcement officers have the power to seize and impound property in order to ensure the integrity of the regulation of freedom camping. It follows that we consider that the proposed seizure powers in this Bill do not unreasonably limit the right affirmed in s 21 of the Bill of Rights Act. Conclusion We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel. Jeff Orr Chief Legal Counsel Office of Legal Counsel
Footnotes: 1. [2007] NZSC 7 2. The proportionality test under s 5 of the Bill of Rights Act, as applied in Hansen v R [2007] NZSC 7 [123], draws on the test articulated by the Canadian Supreme Court in R v Oakes [1986] 1 SCR 103, R v Edwards Books and Art Ltd [1986] 2 SCR 713 and R v Chaulk [1990] 3 SCR 1303. See for example, Hansen, at [42] per Elias CJ; [64] and [79] per Blanchard J; [103], [104] and [120]-[138] per Tipping J; [185] and [217] per McGrath J; and [272] per Anderson J. 3. Persons appointed by the Director-General to be enforcement officers in relation to an offence under this Act. 4. Cropp v Judicial Committee [2008] 3 NZLR 774 at [33]. 5. Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728 (CA). In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Freedom Camping Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney- General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.