Council within rights to evict Occupy squatters

Despite up until recently adopting a very restrained approach Auckland Council is now showing signs of growing weary of the rough-living revolutionaries.

Many in the media (helped along with the complicated views by a number of legal academics) have scolded the councils for stomping over the fundamental right of protest and offending the legislation which enshrines that, the Bill of Rights Act 1990.

The police have been praised in Dunedin and in Auckland for refusing to enforce the councils' trespass notices without a court order.  Being held up as defenders of the Bill of Rights by legal academics must be as thrilling as it is it novel for the police.

However, maybe the councils have a point.  In fact, maybe evicting the camping crusaders actually serves and protects a far more fundamental tenet of our democracy than letting the Auckland occupiers, well ….occupy. 

Whether or not you agree, it is difficult to argue that the Auckland Council's treatment of the occupiers has been other than tolerant.  While some individual councillors expressed an early view that the occupation should end more abruptly, the council apparatus as a whole has not taken action to end it, until its recent statements. 

To the contrary, the council has tried to ensure the occupation is properly integrated with the hectic life of the hip new public space the recently remodelled Aotea Square is.  Significantly, the Auckland Council has waited longer to move the occupiers on than many cities closer to the epicentre of grievance.  This is despite the fact that an occupation protesting unbridled avarice surely resonates far more forcefully in the financial world's heart of darkness, Wall Street, than it does in a square of lawn in Auckland's sandwich-eating district. 

Like it or not, the Auckland council is a body of representatives elected by us all to run, subject to the controls of the local government legislation, the affairs of the city.  This current group of councillors reflect a broad range of politics across the spectrum from left to right.  They are charged with a number of specific, often humdrum responsibilities and are mandated to act as the elected manifestations of the community's will.  One of its more usually more mundane responsibilities (well 99% of the time anyway) is managing our public open spaces. 

Aotea Square is a space set aside for residents and visitors of Auckland to enjoy.  Unsurprisingly, camping in the square breaches a city bylaw.  Unremarkably, not even the Bill of Rights authorises an indefinite occupation of a public space, even to protest the most worthy of causes. 

By definition the occupation fetters other citizens' rights to use of the occupied space, be it for any other protest rallies (if indeed any causes remain unprotested after the occupation) or perhaps more importantly, to eat their cheese and pickle sandwiches in the summer sun. 

In this case the council additionally points out the occupiers' turf-murdering and tent-peg piercing ways will come at a cost to the ratepayer.  Having to even mention such dull concerns in the face of something as sexy as a global camp-out, allows council's critics to mock them as small-minded party-poopers. 

However, you cannot avoid the fact that someone has to meet these costs.  More importantly, you cannot dodge the fact that the community has democratically mandated the current Councillors to take ultimate responsibility for the generally unglamorous duties of parks and reserve management.  Where this mandate has been given, and no matter how much you disagree with the council's decision, we cannot say it's beyond the spectrum of reasonably held opinions.  Therefore aren't we then obliged to accept the council's decision?

In fact, in the absence of evidence of the council proceeding in a way no reasonable person could contemplate as inappropriate, then if the police and the judiciary do not back the council, these unelected officials risk placing their own judgement about how to best balance the conflicting rights and freedoms the occupation entails, ahead of those specifically elected and mandated by the community to make such calls.

Surely this is a subversion of a far more fundamental principle of our democratic system than the right to protest by pitching a tent on the lawn in the middle of town, claiming you never want to leave? 

Pat Mulligan is a lawyer and heads Buddle Findlay's Auckland resource management and local government team.  Pat and his team act for a number of local government clients including Auckland Council.  This article is also available on the Herald website.