Trespass and the right to attend council meetings. By Linda O’Reilly, partner, Brookfields Lawyers.
When controversial issues come before local authorities, members and senior managers are often made uncomfortably aware of the provisions of the Local Government Official Information and Meetings Act 1987 (LGOIMA). Among other things, this protects the right of the public to attend local authority meetings.
Although the public may be excluded from the whole, or part, of a meeting pursuant to a resolution properly made for good cause under section 48, the default position protected under section 47 of LGOIMA is that every meeting of a local authority is open to the public.
Even so, under section 50, a member of the public whose behaviour is “likely to prejudice or to continue to prejudice the orderly conduct” of a meeting can be required to leave by the chair presiding at that meeting.
The power to order such removal is generally exercised sparingly. But, on occasions, it is combined with a notice under the Trespass Act 1980 in an endeavour to avoid repeat incidents involving the same member of the public. This is seldom successful.
The difficulties inherent in combining trespass action with the provisions of LGOIMA have once again been demonstrated in the courts in the recent Court of Appeal case, Board of Trustees of Nelson College v Fitchett. Note: for the purposes of LGOIMA, the board of trustees of a school is a local authority.
In this case the board chair had occasion to order Mr Fitchett to be removed from a meeting. This was pursuant to section 50 LGOIMA when he refused to comply with a board resolution concerning the use of recording devices.
Mr Fitchett declined to leave. The chair chose not to exercise his authority to have him forcibly removed. There was no question but that an order to leave had been properly given.
Subsequently, no doubt wishing to avoid further such incidents, the board served Mr Fitchett with a written trespass notice under section 4 of the Trespass Act. The effect of such a notice is to give a warning to ‘stay off that place’. Breach of such an order is an offence.
Mr Fitchett challenged the trespass notice by application for judicial review. The court had to reconcile the provisions of the two Acts by determining whether the board had power to issue a warning under section 4 of the Trespass Act to a person, who had been required to leave a meeting under section 50 of LGOIMA and refused to do so.
Section 13 of the Trespass Act states that nothing in that Act shall derogate from anything a person is authorised to do under “any enactment… conferring a right of entry onto any land”.
It was argued that Mr Fitchett’s right to attend a local authority meeting, conferred by section 47 of LGOIMA, meant that no trespass notice could apply to prevent him attending future meetings.
In short, the court found in favour of Mr Fitchett, after a technical analysis of both Acts. It found that a section 4 notice cannot have the effect of preventing a member of the public from attending a local authority meeting, and that such an exclusion can only be made under the provisions of sections 48 or 50 of LGOIMA.
It follows that such an exclusion must be made in the circumstances applying to each separate meeting, and that a blanket exclusion will not be acceptable.
This tricky area of law has already caused angst to local authorities sorely tried by persons who appear to delight in disrupting public meetings. However, there are good public policy reasons for protecting the right of access to such meetings.
It is up to local authorities to apply the power to eject members of the public with appropriate restraint and caution, but to use section 50 LGOIMA when required.
This article was first published in the April 2018 issue of NZ Local Government Magazine.