Does Roger Sutton really own central Christchurch?

The Canterbury Earthquake Recovery Authority appears to confuse its role in overseeing the rebuild of central Christchurch with owning it entirely. Here's a reminder - it doesn't.

By the way of the ever-vigilant No Right Turn comes a quite outrageous Radio NZ report on the Christchurch Earthquake Recovery Authority (CERA) pulling the plug on a planned protest in central Christchurch. I'll include it in its entirety, as it's not that long.

A protest planned for Cathedral Square in Christchurch on Thursday afternoon was stopped at the last minute as it was deemed political.

About a dozen people led by Green Party MP Eugenie Sage had planned to enter the cordoned area to place a wreath on a riverstone cairn.

They intended to protest a lack of democracy in the earthquake-hit city. Elected councillors were replaced with Government Commissioners in 2010.

The Canterbury Earthquake Recovery Authority granted the group access to the cordoned area, but revoked it on Thursday morning.

Ms Sage said chief executive Roger Sutton told her he could not allow a political protest to take place in the former red zone.

Now, it's always dangerous to accept one account as gospel and to leap to conclusions based on incomplete evidence, but "danger" is my middle name and extreme risk taking is my favourite pastime. So on the basis of this bare-bones report, let me say that what CERA has done is completely unlawful (and very silly to boot).

[If and when it turns out that the original media report was incomplete and that matters were more complicated/nuanced than they appear at present, I'll do an update and retract any bits of the below analysis that are predicated on false assumptions.]

I/S points out the obvious problem in his No Right Turn post. Protest activity is a form of expression. Expressive freedom is guaranteed under the New Zealand Bill of Rights Act. The CERA (and Roger Sutton as its chief executive) is bound by the New Zealand Bill of RIghts Act. Which means Roger Sutton can only use his powers (including the power to refuse access to Christchurch's central city) to limit expressive freedoms insofar as this is "demonstrably justified in a free and democratic society."

Now, obviously there are some good (i.e. "demonstrably justified") reasons for restricting some expressive activities in the red zone. It is a construction site, with lots of damaged and unsafe buildings in it. So allowing lots and lots of people to march through the area isn't really on. Even allowing small groups into the area requires a lot of safety planning and coordination.

But this would not seem to be the problem in the immediate case. The protest group had been granted access, so apparently their presence could be safely managed. It was (apparently) only once Roger Sutton realised media would be accompanying the group that the permission was rescinded. And this was because Roger Sutton "could not allow a political protest to take place" (according to what Radio NZ says Eugenie Sage says Roger Sutton said ... so no reason to doubt its accuracy, right?!).

Well, why couldn't he allow such activities to occur? Certainly nothing in the CERA legislation or the role that he is given under it says this. So if Roger Sutton is instituting a "No Politics!" rule in central Christchurch, he's doing it off his own bat. And who says he gets to make such a rule?

Maybe he's just trying to stop central Christchurch becoming a theatre set for people to use to make political points. After all, it's a place where a lot of people died. So perhaps he believes it is inappropriate, or disrespectful, to stage political activities there.

Well, OK - that's a reasonable view. And if you likewise thought the planned protest was in bad taste, you could have let the participants know of your feelings. But it isn't a view that ought to be enforced on everyone. After all, the meaning of the earthquake and the government's response to it is a deeply contested issue. The protest group's point was that not only had lots of individuals died in Christchurch, but that democracy itself had been a casualty.

So for Roger Sutton to dictate that a particular sort of activity - political protest - is inappropriate for central Christchurch is plain wrong. You can no more say that it as a place must remain politics free than you can say that an ANZAC day ceremony must remain politics free, or that politics and sporting tournaments don't mix.

Furthermore, there's another problem with Roger Sutton trying to say that central Christchurch somehow must remain a politics-free zone. Back in June, 2012, CERA put together a bus tour of Christchurch (including the central city zone the protestors wished to enter into) that was led by the Earthquake Recovery Minister, Gerry Brownlee. That tour generated press coverage like this of the efforts that were being made by Brownlee and CERA in the wake of the quake. It also led to this rather glowing account of Gerry Brownlee's abilities from a quite prominent political blogger who has a record of concern for free speech issues and so will no doubt be posting his unhappiness with Roger Sutton's decision in due course;

The other thing that struck me was the intimate detailed knowledge CERA Minister Gerry Brownlee had on the city and the issues. Over six or more hours on the bus, he was peppered by questions, and could answer pretty much them all. At almost every location he could tell you what had happened, what issues had arisen, and what probably will happen. There were many stories about ministerial interventions to stop something bad happening by some entity. We’re not talking about use of official powers, but persuasion and yes diplomacy.

Now, I guess you can try to argue that a CERA-sponsored media tour through central Christchurch led by the Minister in charge of the rebuild in order to puff up the work he and CERA are doing is not "political", but that a protest against the government's removal of decision-making from locally chosen representatives is. But it's a pretty difficult distinction to make. In fact, I'd suggest that the chief point of distinction is that one is trying to convince people that things are going well, while the other is trying to convince people that things are going badly.

So why is it OK to let central Christchurch be used as a forum to get across the former message, but not the latter?

For these reasons, unless and until more details emerge to show that the initial media account is incomplete or wrong, I think Roger Sutton has overstepped his powers on this issue. And in so doing, he would appear to be exemplifying exactly the concerns about autocratic and unaccountable decisionmaking that the protestors originally wished to give voice to. Which is, you might very well think, nicely ironic.

While we're on the subject of protest and the power to stop it, a quick word about the High Court's ruling on the injunction that the Auckland City Council were given at the end of 2011 to bring a halt to the Occupy Auckland camp. I think some of the media reportage on this has been a little off the mark, in that it overstates the "victory" that the protestors achieved.

In essence, the High Court upheld the basic right of the Council to get an injunction ordering the protest to cease and the occupiers to leave Aotea Square. However, it also found that the terms of the original injunction as granted by the District Court were too broad, in that it prohibited any of the protestors from breaching the relevant bylaws in the future by returning to Aotea Square to conduct a new form of protest. This, said the High Court, went further than was needed to enforce the bylaws in question - that could have been done simply through an order to pack up and leave.

Therefore, it was a minor win for the protestors, in that it theoretically clears the way for them to commence a new occupy protest if they so choose without thereby running the risk of being found in contempt of court. But given that the occupy movement (in its original form) has run its course and so no new occupation is likely, it's not that much of a win.

What is interesting, however, is how the High Court dealt with the protestors' challenge to the bylaws that the Council relied on to get the injunction. The protestors argued that these by-laws ought to be declared invalid because they apparently applied a blanket ban to using methods such as camping in order to make a political statement. And said the protestors, such a blanket ban is inconsistent with the rights to free expression and association guaranteed under the New Zealand Bill of Rights Act.

After a bit of anguish, the High Court judge refused to declare the bylaws invalid, but only because she found that the Council had in place a system whereby permits could be obtained to allow such protest activities. So, the bylaws weren't a complete ban in that protest activities could still occur in spite of them, provided the Council permitted those activities to take place.

This then moves the action to a councils decision to permit (or refuse) a given protest activity. Certainly, a council could not adopt a blanket policy that it will not permit any activities that otherwise breach its bylaws where those activities have a protest function. Such a blanket policy would be as much a breach of the New Zealand Bill of Rights Act as a bylaw that allows for no exceptions at all. So instead, a council would have to weigh up on a case-by-case basis the importance of allowing the protest (which is the exercise of a statutorily guaranteed right) against things like other public access to the area, damage that may be caused, and so on.

Which is, to bring matters back full circle, exactly what Roger Sutton ought to have done in regards the protest in central Christchurch.