Without anyone apparently noticing, the Auckland Transport Board has decided for Auckland ratepayers just when it is appropriate to convey their political beliefs to the world. Can they really do that?

Via RNZ comes this odd story:

[Auckland Mayoral Candidate] Victoria Crone's billboards on Hobson Street in Auckland's CBD, St Georges Bay Road, The Strand in Parnell and one in Orewa, have been deemed election signs by Auckland Council electoral staff.

The Auckland Transport Election Signs Bylaw 2013 limits the display of election signs to the period nine weeks prior to 8 October 2016 - election day.

The earliest an election sign is allowed to be displayed [for the current mayoral election] is 6 August.

Which seems a bit strange - why would a local authority put restrictions on when (as opposed to how, or how much) candidates for election and/or their political parties can advertise themselves? What could be the rationale for that?

So I took a look at the proposal for the bylaw as put forward in 2013 and according to it the time limit is needed because:

While the current provisions of the bylaw restricts the display of election signs on specified public sites during the regulated period of nine weeks before the election, the restriction does not apply to any private sites.

Consequently, election signs are displayed on private sites before they may be displayed on public sites, leading to confusion and unnecessary visual distraction.

Huh? So because 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.

And even under the Election Signage bylaw, I still can put up a sign on my front lawn advertising my belief that you should "Vote For Lower Rates" or "Vote For Better Public Transport" at any time (provided I meet the conditions of Auckland Council's general bylaw on signage). So again, apparently political signage per se creates  no concern about "unnecessarily visually distracting" anyone.

What, then, is so magically bad about candidate or party advertisements? Why do these pose such a risk of generating an "unnecessary visual distraction"? And especially when they are displayed - as Victoria Crone's were - on a giant billboard that would have contained a different ad had she not rented the space!  Are people somehow much, much more likely to be distracted by one sort of advert over another? In which case, which is worse - this or this?

So something seems a bit off here. And then there's another problem. Because the effect of this bylaw is to constrain candidates' freedom of expression (as well as that of anyone who wants to support a candidate).

As we all know, that freedom is legislatively guaranteed under s.14 of the NZBORA. That legislative guarantee means that the Auckland Transport Board (who actually made the bylaw) cannot make a rule infringing it unless that infringement is "reasonable" and "can be demonstrably justified in a free and democratic society."

So how did Auckland Transport justify the infringement in its proposal? Fairly sketchily, I have to say:

Consideration was given as to whether the types of controls in the bylaw would give rise to any implications in terms of this Act and in particular whether the controls place unreasonable limits on the right to freedom of expression. The controls included in the bylaw are considered reasonable restrictions which are fair to all candidates, and will minimise adverse impacts on road safety and amenity values and ensure the mandate and purpose of Auckland Transport are appropriately delivered.

Sure, the bylaw is "fair" as between candidates and parties (in that all of them suffer under it equally). But how is it "fair" to tell candidates and parties (and, remember, those ratepayers who may want to signal support for such on their own land) that they cannot communicate with the public while allowing everyone else to continue to do so?

Because if signage visible from public roads is a threat to road safety and amenity values, then why is just candidate or party advertising that is being targeted? Isn't that a pretty arbitrary step to take - singling out one form of speech for a complete ban while allowing all others to continue under rules about sign size, shape, etc, etc? For if those latter rules are deemed sufficient to deal with the risks of "unnecessary visual distraction" provoked by hairdressing businesses, enthusiastic school parents and believers in chemtrails, then why won't they work for supporters of mayoral candidates or political parties?

Really what seems to be in effect here is a value judgment by Auckland Transport that 9 weeks is "quite long enough" for private ratepayers to express their partisan political preferences. But I'd ask why it's any of Auckland Transport's business to decide for me (or, rather, Auckland ratepayers) when it is appropriate to tell the world what I think by way of a lawn sign. Hell, if I lived in Auckland I'd probably make a sign saying just that and stick it on my front lawn.

Comments (7)

by Rich on March 24, 2016
Rich

So, might the bylaw be ultra vires? Auckland Transport are presumably empowered to regulate signs visible by the road for purposes of safety. I can't see how a ban on candidate advertising but not on commercial or issue-based advertising is doing that?

by Andrew Geddis on March 25, 2016
Andrew Geddis

So, might the bylaw be ultra vires?

If it is inconsistent with the NZBORA, then yes. Auckland Transport claim that they can make rules for more than just public safety reasons - protecting "amenity values", for instance. The problem is that they are defining one particular kind of advertising message - candidate or party adverts - as being so bad as to require banning in all by a short temporal window while allowing all other forms of adverts to continue (subject to size/shape/lighting etc rules). This seems somewhat a somewhat arbitrary limit on one of the most important forms of expression there is!

by Rich on March 25, 2016
Rich

Interesting. Could they, for instance decide to ban all fast food establishments from outside advertising on public health and general aesthetic grounds?

by Graeme Edgeler on March 31, 2016
Graeme Edgeler

[from RNZ] Professor Geddis said the only way to challenge the bylaw would be before the High Court, which meant that it probably couldn't be changed before October's election.

It could also be challenged as a defence if there was a prosecution or other enforcement action in the District Court.

Of course, a challenge under the Bylaws Act is always "fun" - there's a requirement to pay security for costs ... in the amount of 5 pounds.

by Tom Cleary on March 31, 2016
Tom Cleary

The simple solution is to ask the Minister of Transport to disallow the Bylaw (unlikely) or amend the Bylaw to make the Bylaw only apply to public property (or just roads and property owned by the Auckland Council). 

The offending Bylaw is made under s 22AB(1)(y) of the Land Transport Act 1998.  Section 22AC empowers the Minister of Transport to disallow or amend bylaws that are inconsistent with any enactment.  Here the offending Bylaw is likely to be inconsistent with the NZBORA.   

by Andrew Geddis on April 03, 2016
Andrew Geddis

Graeme,

True that - if anyone wanted to take the risk of prosecution. Interestingly, Vic Crone has removed the billboards in question!

Tom,

That's very interesting! I've passed your comment on to someone who might be interested in chasing Simon Bridges to see if he'll act.

by Penny Bright on May 01, 2016
Penny Bright
Full credit to Minister of Transport Simon Bridges for his prompt action on this issue.
http://www.radionz.co.nz/news/regional/302649/mayoral-candidate-defies-billboard-ban

".....Ms Bright has joined the fray, telling the council she will petition Transport Minister Simon Bridges to declare the bylaw - which comes under his portfolio - illegal.

She will seek support from other candidates and interested parties, and has urged candidates to defy the bylaw, by advertising from private property before the nine-week election period.

Auckland Transport's election bylaw noted that it considered Bill of Rights issues, and believed it complied.

Ms Crone said any thought of legal action would come further down the track, and she had contacted the council today asking it to review its stance.

Transport Minister Simon Bridges said he had sought legal advice on the bylaw, as well as his powers as Transport Minister to disallow transport-related bylaws.

He said he had written to Auckland Transport asking them to clarify the original purpose of the bylaw and to advise how they believe the bylaw was consistent with the Land Transport Act 1998 and the New Zealand Bill of Rights Act 1990. "


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