A workable solution or a bylaw too far?
After the Nelson City council released its draft city amenity bylaw, it received more than 500 pages in submissions from community members.
Included were views from Sir Geoffrey Palmer QC, a Nelson ratepayer and former Prime Minister, and local defence lawyer Steven Zindel, who has represented long-standing Trafalgar St occupier Lewis Stanton.
Mayor Rachel Reese said dealings by the council with Lewis Stanton, who has occupied the footpath outside Farmers for several years, prompted the by-law.
"I think it's fair to say the ongoing issues with Mr Stanton have highlighted some gaps we have in our bylaw processes," Reese said.
In a council report those gaps were identified as involving safety, occupation of public places, ability to limit and remove rubbish and material placed in public places and generally maintain the ambience of the city centre.
But in his submission, constitutional lawyer and former Prime Minister Sir Geoffrey Palmer has questioned what the "gaps" are. He said the bylaw had not outlined facts "upon which the need for the new law is based".
It was instead a "scattergun" approach aimed at undefined problems, which amounted to a "wishlist of powers the council thinks may be useful".
"It is therefore impossible to tell whether the measures are proportionate for dealing with the reality to which they are directed," he wrote.
The bylaw's statement of intent says it will "protect, promote and maintain public health and safety and amenity in the city centres", but Palmer questioned whether another law was needed to achieve this.
He said if the council had found gaps in the 60,000 pages of New Zealand statute law it should "ask the New Zealand Government to promote new general law for all New Zealand".
He pointed to the Summary Offences Act 1981 as dealing with issues related to public order, as well as the Crimes Act 1961.
Palmer wrote that aspects of the proposed bylaw could threaten rights and freedoms of New Zealanders, covered by the Bill of Rights Act 1990, including freedom of assembly, freedom of expression, and freedom of association.
He said the likelihood the bylaw would solve the council's issues, and the apparent public frustration, with Lewis Stanton was "remote".
"What will occur, it can confidently be predicted, is heavy and expensive litigation with journeys to the appellate courts as the application of the bylaw is challenged.
During the bylaw process a council officer said consideration had been given to other bylaws used by councils around New Zealand.
The Nelson council had also considered the High Court case over the Occupy movement's protest in Aotea Square, and taken into account international commentary "to make the very best regime for Nelson."
Council officers said actions in actions taken under trespass and obstruction provisions of the Summary Offences Act had not been successful.
Consideration had been given to other remedies using the Public Works Act, breach of bylaw provisions against begging, civil action of trespass, nuisance, the Freedom Camping Act 2011 , Local Government Act and the Resource Management Act but none were particularly suitable.
Steven Zindel said the proposed bylaw was "too wide and uncertain".
"You could drive a horse and cart through some of that stuff, if you pardon the pun," Zindel said.
He agreed with Palmer that it would likely lead to legal action, although he was reluctant to put up his own hand to take it on.
"Publicly-minded people might take the council on if they've got a mind to… [I'd] rather not waste ratepayers money on it, it would be better if the bylaw were a bit more sensible."
He said there were issues with clauses based on broad definitions, which would see enforcement left to council staff interpretation and discretion.
"The council may talk about the fact that its officers, and police, can be trusted to act with discretion and not to abuse the wider powers which are contained in the bylaw, but in my experience as soon as wide powers are given to any person there is the potential for [them] to be abused."
A "Legal Sledgehammer"
A large number of submissions opposed the need for a permit to protest. But the bylaw would also introduce a ban on rough sleeping in the CBD.
Both these aspects could be applied to Lewis Stanton, but Palmer said dealing with these issues in an "indiscriminate" fashion could cause problems.
"The history of freedom has many examples of people who may be unusual, hold different opinions from the majority and whose behaviours are not popular."
He said infringing on liberty could be counterproductive and potentially encourage the behaviour it intended to deter. He suggested mediation, negotiation, and good communication instead of a "legal sledgehammer".
Zindel said society had always had to deal with eccentrics.
"Some people say it makes the town look scruffy, other people say it adds a bit of interest. Personally I don't mind too much, I try and adopt a 'live and let live approach'" Zindel said.
"As a lawyer, just generally, you come across a lot of greater transgressions. Like people who don't pay their family support, who steal on a serial basis, and it kind of puts [Stanton] in perspective."
Zindel said if Stanton, or those who occupied the space with him, were behaving violently or offensively the police could deal with it under the Summary Offences Act.
The Stanton Saga
The council's latest stand-off with Stanton dates back six years - to when he parked outside the Nelson courthouse with his cart and horse, Barney. Since then, the council's attempts to move him on through court cases or negotiation have been unsuccessful.
Since 2010, Stanton has taken his protest to the streets, most often outside the Trafalgar St entrance to Farmers. Since Barney was taken away on animal welfare grounds in January 2015, he has camped permanently outside farmers, attracting other rough sleepers and a public backlash.
Last week the council said they'd received an increased number of complaints after "Camp Stanton" swelled to include another two regular occupiers.
As Stanton's lawyer, Zindel has a unique perspective on the man who also goes by "Hone Ma Heke".
"Hone's pretty easy as a client really, he's a reasonably peace-loving sort of guy, stubborn sure but pretty respectful," Zindel said.
"...he's no difficulty at all compared to say some of my criminal clients."
Zindel said Stanton was a hard person to "put in a box", and while he may be inconvenient, he wasn't particularly violent.
"Hone's been convicted of assault a couple of times, but usually when it's been brought to him. He doesn't go and attack people on the street."
He said the bylaw was unlikely to lead to a resolution with Stanton, who "doesn't respond well to rules".
He said it could just lead to more unpaid fines, and potentially more jail time for Stanton depending on how the bylaw was enforced.
"All you'd have is Hone in jail all the time, so is that the stage of life you want to reach. You can do that alright and pay $90,000 a year [for him to be in jail], but there are others like him..."
As to a way forward for the council and Stanton, Zindel said he'd like to see both parties moving away from entrenched positions.
"It's not quite at Middle East level," he said.
"[Stanton] may not be everyone's idea of a city amenity, but he is to a certain section of the community. A minority, but [they are] people nevertheless."