Auckland Transport appears to think that selling houses is a more important activity than trying to influence how people may vote. Is this just a sign of the times, or are they simply wrong?

Back in March I wrote this post in which I expressed scepticism about Auckland Transport's rationale for having a by-law that prohibits the display of election advertising anywhere that is visible from a road, except for the 9 weeks before an election. My argument was: 

[B]ecause Auckland Council only allows candidate signage on its specified public sites nine weeks out from an election, it was decided that private citizens should only be allowed to put up such signage on their land during that same period least people be "confused", or "unnecessary visual distraction" will occur? There's (at least) a couple of problems with this.

First up, what exactly is the "confusion" problem here? That someone will see an ad for a candidate or political party on a lawn hoarding (or commercial billboard, or other place visible from a road) and think "hang on, why aren't there any ads on the patch of public grass at the corner of the road?" That's bad ... why?

And second, the "unnecessary visual distraction" point would be a bit more compelling if bylaws didn't allow for any form of roadside advertising at all. But they do. Meaning that I (or, rather, Auckland ratepayers) can put a sign on my front lawn advertising my hairdressing business, or my kid's school fair, or my concerns about chemtrails ... and as long as I conform to the size, lighting and other requirements of this general bylaw then there is (apparently) no concern about my "unnecessarily visually distracting" anyone.

This being so, I expressed my opinion that the by-law was inconsistent with the right to freedom of expression under the New Zealand Bill of Rights Act, because it was not a demonstrably justified limit on that right. And because the bylaw is inconsistent with that statutorily guaranteed right - it is in conflict with an Act of the NZ Parliament - it is invalid.

The indefatigable Todd Niall, RNZ News' Auckland Correspondent, then kept on chasing the issue by asking the Minister of Transport - Simon Bridges - whether he'd use his power under section 22AC of the Land Transport Act to amend these bylaws (on the grounds that they were inconsistent with another enactment). And today he posted this story on the matter:

In letters, released by Mr Bridges under the Official Information Act, Auckland Transport's chief executive David Warburton told the minister that after having the bylaw reviewed by law firm Russell McVeagh the agency believed it did comply.

"That said, ... AT acknowledges that some aspects of the bylaw impose limits on the right to freedom of expression that raises some concerns regarding Bill of Rights Act consistency," he wrote.

"Although those limits can be considered justifiable, AT acknowledges that another person could take a different view."

Auckland Transport initially offered to make changes, including extending the period under which it would allow election advertising, and removing restrictions on permanent commercial sites.

However, when the minister raised further questions, it was agreed to go with Auckland Transport's next suggestion of a full review with public consultation, after the October election.

"This review is likely to consider releasing some of the constraints on these signs from the control process," Dr Warburton wrote.

So it looks like no-one is going to get pinged for ignoring the bylaw this election (as Vic Crone did) and that there'll be some sort of changes to the bylaw after the local election is over. But it also sounds like Auckland Transport thinks that its original bylaw  might have been OK, and that it is able to impose special rules on election signs that differ from the rules that apply to other signs. Why does it think that?

Well, reading through the material behind Todd Niall's story, Auckland Transport seems to reason as below (and forgive any oversimplification of some lengthy written material).

  • First, there have been controls on when people can put up election signage in Auckland in the past, including in the transitional legislation that set the rules that would apply for the Auckland Supercity's first election back in 2010 (but, note, only for that first election).
  • Second, a bunch of other councils (9, according to Auckland Transport) have similar restrictions on when election signage may be displayed, so Auckland's rules aren't out of the ordinary.
  • Third, no-one in the past has complained about these rules or said that they are inconsistent with the NZBORA - including the Ministry of Justice back in 2009 when it reviewed the transitional legislation setting the rules for the Auckland Supercity's first election.
  • Fourth, the rules serve the purpose of creating consistency between the rules for public and private sites, thus reduce confusion as to which rules apply where, and "remove unnecessary visual distraction".

That's all fine, I guess, but I'm still not buying it. Reasons 1-3 are all about what's happened previously, and just because a rule has been in place for a while without being seen as a problem doesn't make that rule a "justified limit" on freedom of expression. Take, for example, the Department of Corrections rule against prisoners being able to speak with journalists. As we've now seen on three (three!) occasions - here, here, here - those rules and their application by the Department have been found by the Courts to be inconsistent with the NZBORA. So saying "we (and others) have limited election signs on private land before" says nothing about whether Auckland Transport actually should be able to do so.

Furthermore, the fact that Parliament legislated a time limit on election signs for the Auckland Supercity's first election (but only for its first election) doesn't mean all that much. That legislation was really a roll-over of the rules that some of the various councils had in place at that time. And the Ministry of Justice officials didn't even seem to notice (!!!) that the provision was in the Bill - their NZBORA discussion of the legislation doesn't mention it at all, much less provide a reasoned assessment of why the limit is demonstrably justified. So any suggestion that Parliament carefully has considered whether such limits should exist and accepted that they should seems a bit overblown to me.

What is more, the existence of different practice between councils as to when election signs can be displayed seems to argue against Auckland Transport's position. Take down my way. The Dunedin City Council allows the display of "temporary election signs" on private land at all times, while restricting their display on nominated road reserves to 2 months before the election. The Queenstown Lakes District Council does likewise. But both the Clutha District Council and Central Otago District Council restrict the display of election signs on private and public land to 2 months prior to the poll. That being so, if we want to see whether having different rules allowing for signs at different times in different places really will "create confusion", then we've got a perfect testing ground. Let's look and see how much more confusion about the issue there is Dunedin/Queenstown when compared to Alexandra/Gore.

(Hint - I'm willing to bet the answer is "none".)

So really the issue of justification comes down to point 4. Having one rule for display of election signs on both private and public land is easier, less confusing and will "remove unnecessary visual distraction". And as I said in my original post, these just aren't very convincing arguments for completely stopping someone from expressing their views on how people should vote at election time.

For me, what it really comes down to is this. Auckland Transport are saying that if I want to sell my house in Auckland, then I am free to stick a sign advertising that sale in my front yard as long as it doesn't "exceed more than 1.8 square metres and no more than 2 metres above ground level" - and I can keep it there for as long as it takes me to sell the house for whatever hugely overinflated value I can gouge out of the desperate buyer. And then, if that buyer wants to flip it on immediately for a profit, they can stick up another sign for as long as it takes for them to sell. And so on, and so on, and so on in Auckland's never ending property spin cycle.

That's all fine. No problem. Fill yer boots.

But, if I want to get Nikki Kaye reelected in Auckland Central in 2017 and so (after getting her permission, of course) in July of next year put up a sign of the exact same size on the front lawn of my Herne Bay villa, then I am somehow creating "unnecessary visual distraction" that must be eradicated. 

Meaning that, in Auckland Transport's opinion, it is more important for people to be able to advertise their houses for sale than to try and influence how others vote for the leaders of their country. If that value scale seems somewhat wrong to you, then that's why Auckland Transport's bylaw is invalid.

Comments (11)

by Fentex on August 26, 2016
Fentex

Another problematic point may be; what is a election advertising?

If I hang a sign on a tree on my property that says "I think [name of incumbent standing for re-election] shouldn't have their job" (or does a bad job or some variation on the theme not mentioning an election) am I speaking about an election, or just any other day of the year?

I should be very annoyed if someone thought they ought be able to tell me I may not express my opinion through arbitrary assessment of their concerns about an election. How would my opinion differ from that written on a blog, in a newspaper or aired on a radio simply because I chose to air it on cardboard on my property?

by Megan Pledger on August 28, 2016
Megan Pledger

There is enough visual pollution with advertising as it is.   Restrict the pollies to six weeks before the election and leave the rest of us be the rest of the time.

by Andrew Geddis on August 28, 2016
Andrew Geddis

There is enough visual pollution with advertising as it is.   Restrict the pollies to six weeks before the election and leave the rest of us be the rest of the time.

If "visual pollution" is your concern, then why are you happy for everyone who wants to advertise/communicate about their house sale, home business, school fair, views on the effect of chemtrails, etc, etc to be able to do so through a sign (within set limits on size/appearance ), but anyone who wants to communicate their views on how people should vote can only do so in a very tight time window? On what basis is the latter a justifiable target for regulation over and above that which applies to all other forms of signage?

Also remember, these aren't politicians communicating to the public. They are messages that individual people want to place on their own land because they want to tell the world what they think (and what they think people should do come election time). Isn't that sort of communication the lifeblood of democracy? And so, if we're going to crack down on "visual pollution", then shouldn't we first look at limiting real estate signs outside houses rather than these messages? Otherwise, what is your value scale - selling houses is more important than democratic participation?

by Mr Magoo on August 28, 2016
Mr Magoo
"selling houses is more important than democratic participation?" I have a feeling that this is a view that has been shared by the majority of the country for the last decade or so - conscious or otherwise. Except when politics relates to housing policy of course... Considering the quality of the advertising in question (dull corporate style images with vapid, meaningless slogans) I feel the impact on democracy is negligible. However one should never take freedom of speech lightly regardless of how irrelevant or morally reprehensible the topic of the moment is. Slippery slopes and all that.
by Andrew Geddis on August 28, 2016
Andrew Geddis

Considering the quality of the advertising in question (dull corporate style images with vapid, meaningless slogans) I feel the impact on democracy is negligible.

Except that's not all that that is banned. It is any signage that "encourages or persuades or appears to encourage or persuade voters to vote for a party or a person standing as a candidate or to vote in a particular way on a referendum or election." So if I construct a very well reasoned argument - "Don't vote for Phil Goff because he's Phil Goff, for crying out loud!!!!" - and paint it on a sign myself, Auckland Transport say I can't put it on my own front lawn until the 6th of August ... even though Phil Goff publicly announced he would be a candidate for the mayoralty on 22 November, 2015.

by Mr Magoo on August 28, 2016
Mr Magoo

You COULD do that, but you have not and would not (save to prove a point resulting from this debate), hence my comment on the vapidity of 99.9% (so effectively "all") of signage. Basically political signs think they are corporate advertising and I would think/hope this is a misguided notion. Sadly, it probably is not...

And I would agree with your right to do so in the future, hence my comment about slippery slopes.

In other words my entire comment was on how I agree with your overall sentiment but found your example somewhat amusing given the state of politics and public opinion at the moment.

In terms of these sorts of rights I would have preferred discussion on the recent GCSB bill, specifically the anti whistle-blower provisions, and how solid the legal basis was for the criticism. The usual media channels did their usual, ham-fisted and superficial coverage.

by Andrew Geddis on August 28, 2016
Andrew Geddis

In terms of these sorts of rights I would have preferred discussion on the recent GCSB bill, specifically the anti whistle-blower provisions, and how solid the legal basis was for the criticism.

I'm sorry I didn't spend my time writing the thing you wanted to read for free on the internet. I'll make sure to get in touch before my next post to make sure that I'm writing on the correct topic.

by Graeme Edgeler on August 29, 2016
Graeme Edgeler

And the Ministry of Justice officials didn't even seem to notice (!!!) that the provision was in the Bill - their NZBORA discussion of the legislation doesn't mention it at all, much less provide a reasoned assessment of why the limit is demonstrably justified.

This is not unusual. BORA vets tend to be very poor on finding issues. When they find one, they can sometimes do a good job of assessing it, but the miss a lot of things I'd want that process to pick up (for example, I'd have wanted the vet on the repeal of section 59 of the Crimes Act to at least acknowledge that some people consider this a limit on the manifestation of their religion. Clearly a reasonable limit, but it should have been acknowledged it was a limit).

I've found the problem of missing analysis particularly around issues of freedom of expression, but it may just be that I'm more likely to notice those, so concerns may be across the board.

by Mr Magoo on August 29, 2016
Mr Magoo

"I'm sorry I didn't spend my time writing the thing you wanted to read for free on the internet. I'll make sure to get in touch before my next post to make sure that I'm writing on the correct topic."

Perhaps my preface was not so well thought out (I tend to write posts too quickly sometimes) as I was not meaning it as an insult. What I MEANT to say was that around such issues I would consider that aspect of higher importance and would love someone with legal knowledge to tackle that as the media have not really addressed it at all and others have claimed it is of great importance. It certainly is a worry given this government's attitude.

Sorry to have caused offence but then I give my comments freely on the internet as well.

Having thought about it maybe that is a topic best left untouched as you will probably be added to the list of people being watched ? (soon perfectly legally with little recourse)

by Megan Pledger on August 29, 2016
Megan Pledger

Council rules about signage are pretty strict in Wellington - I know because I have done signage for school fairs and stayed strictly within the rules - which include size of fonts, the timing of when signs can be put out etc.   

Signage tells us nothing about a candidate's policies.  There is not enough readable space to be in anyway informative beyond name and brand recognition.   

I agree that the tranport agency shouldn't be controlling it but it definitely should be controlled -  especially to time they go up and time they do down.   

( One of the things I most liked about leaving Auckland was all leaving behind all the gigantic billboard advertising.  I found it quite oppressive. )

 

 

 

by Andrew Geddis on August 29, 2016
Andrew Geddis

Council rules about signage are pretty strict in Wellington - I know because I have done signage for school fairs and stayed strictly within the rules - which include size of fonts, the timing of when signs can be put out etc.

Great! But note that the Council Website doesn't then have extra or different rules for election signage - rather, it says "electioneering on private property must be in accordance with legislation and the District Plan". So if a council wants to minimise all forms of signage to limit visual pollution, then that's fine with me.

( One of the things I most liked about leaving Auckland was all leaving behind all the gigantic billboard advertising.  I found it quite oppressive. )

Sure. But Auckland Transport's bylaw does nothing at all about gigantic billboard advertising. All it says is that you can't put election ads on those billboards outside of a 9 week window before elections - all other forms of advertising are fine.

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