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.