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Hutt City Council (Graffiti Removal) Bill (Consistent) (Section 14) [2011] NZBORARp 54 (25 October 2011)

Last Updated: 30 April 2019

Hutt City Council (Graffiti Removal) Bill

25 October 2011 ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

HUTT CITY COUNCIL (GRAFFITI REMOVAL) BILL

1. We have considered whether the Hutt City Council (Graffiti Removal) Bill (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). The Bill was introduced into the House of Representatives on 29 September 2011 and is currently awaiting its first reading. The Bill is a Local Bill in the name of Hon Trevor Mallard.
2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion we have considered the consistency of the Bill with s 14 of that Act (freedom of expression). Our analysis is set out below.
   

PURPOSE OF THE BILL

3. The purpose of the Bill is to facilitate the removal of graffiti within the district of the Hutt City Council (‘the Council’). In particular, the Bill facilitates the removal of graffiti that is on private property and visible from a public place. A prevalence of graffiti in a community signals a lack of social cohesion, perceptions of danger, and reduced property values for owners.
4. Entry onto private property is only for the removal of graffiti and is unconnected to any law enforcement activities.
   

CONSISTENCY WITH THE BILL OF RIGHTS ACT

Freedom of expression

5. Section 14 of the Bill of Rights Act affirms the right to freedom of expression, which includes the freedom to seek, receive, and impart information and opinions of any kind and in any form. The right is as wide as human thought and imagination. [1]
6. Graffiti can be considered a form of expression and may fall under the protection of s 14 of the Bill of Rights Act. Removal of graffiti can be viewed as a prima facie limit on the right to freedom of expression.
   

Is this a justified limit under s 5 of the Bill of Rights Act?

7. 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 decision in Hansen v R [2007] NZSC 7, the s 5 inquiry may be summarised as:

1. does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?
2. if so, then:
   
   1. is the limit rationally connected with the objective?
   2. does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?
   3. is the limit in due proportion to the importance of the objective?
      

8. Clause 3 of the Bill states that the Bill’s purpose is to facilitate the removal of graffiti within the district of the Hutt City Council. This is achieved by empowering the Council to remove graffiti which is on private property and visible from a public place. The underlying objective is to minimise the negative impact of graffiti on the image and the well-being of the community. We consider that this objective is sufficiently important to justify some limitation on the right to freedom of expression and that the limitation is rationally connected with this objective.
9. The Bill provides that the Council may only enter onto private property after notice has been served on the owner or occupier at least ten days prior to the planned removal of graffiti and the owner or occupier has not objected. Clause 9 outlines how a notice may be served. Once notice has been served, cl 7 requires the Council to take reasonable steps to consult with the owner or occupier of the land in relation to the manner in which the graffiti is to be removed.
10. Where the owner or occupier explicitly consents to removal of graffiti, or is aware that the Council plans to remove it and does not object, the limit on freedom of expression is justified. However, there is also the potential for the Council to remove a lawful form of expression without the property owner being aware that this is going to happen.
11. The Bill does not define ‘graffiti’. The term may be interpreted in light of s 11A of the Summary Offences Act 1981, which makes graffiti vandalism an offence. A person is liable under s 11A if he or she damages or defaces any property by writing, drawing, painting, spraying or etching on it without lawful authority and without the consent of the owner or occupier.
12. There is potential for the Council to interpret a lawful form of expression as graffiti. It is also possible that the Council will serve a notice proposing to remove the lawful expression, but that the owner or occupier does not have the opportunity to read the notice and object within the relevant timeframe. Overall, we consider the likelihood of this happening to be low and we note that cl 7 requires the Council to consult with the owner or occupier of the land in relation to the manner in which the graffiti is to be removed. During this consultation the owner or occupier could object to the action being taken if the ‘graffiti’ was lawful expression.
13. We consider that the provisions of the Bill appear to limit freedom of expression no more than is reasonably necessary to achieve the objective of the Bill and the limit is in proportion to this objective.
    

CONCLUSION

14. 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

Footnote:

1. Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9, (1999) 5 HRNZ 224 (CA), para 15 (Tipping J), cited with approval in Living Word Distributers v Human Rights Action Group [2003] 3 NZLR 570, 582[2000] NZCA 179; , (2000) 6 HRNZ 28 (CA), para 36 (Richardson P).

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 Hutt City Council (Graffiti Removal) 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.