Right to beg ‘fundamental’
By denying three men the right to beg for money, the Napier City Council is breaching their fundamental freedom of expression under the Bill of Rights, a court will hear.
The three men – Turei Cooper, Major Keelan and Myles Hemopo – have pleaded not guilty to charges of breaching a council bylaw that forbids them from soliciting for money without authority.
The Public Defence Service lawyer for Cooper and Keelan, Alan Cressey, made a successful application for a judge-alone trial to hear the charges in August.
Hemopo will be tried on the same day.
The charges were to be heard before Justices of the Peace.
However, Cressey said the nature of the challenge was ‘‘of utmost public interest’’ and involved fundamental human rights so should be heard by a judge.
In a memorandum to the Napier District Court, Cressey said the men would seek to ‘‘challenge the validity of the bylaw insofar as it applies to begging’’.
The validity of similar bylaws had been challenged overseas, and had ‘‘been found to be in breach of the constitutional right to freedom of expression, and of the Universal Declaration of Human Rights to which those countries were signatories’’.
‘‘It will be submitted, as it already has in overseas jurisdictions, that to deny a person the right to ask others for help is the most fundamental breach of freedom of expression possible,’’ Cressey said.
‘‘Furthermore ... begging is a form of political expression that lies at the very core of freedom of expression in that it draws attention to the defendants’ plight, thus raising social and political consciousness amongst the public,’’ Cressey said.
The bylaw violated section 14 of the New Zealand Bill of Rights Act 1990, which stated everyone had the right to freedom of expression, he said.
The three men’s alleged offending occurred on various dates in May.
Keelan faces charges of soliciting for money and breaching city bylaws.
Hemopo faces a charge of breaching a bylaw, and Cooper is charged with soliciting for money and disorderly behaviour.
The men, who are often seen sitting with cardboard signs seeking money, are part a group of about 10 people who regularly beg in the city centre.
A council meeting last week heard retailers, police and St John ambulance staff express concerns about the behaviour of beggars.
The council bylaw in question is 3.1(l).
It states that soliciting any subscription, collection or donation or undertaking any busking in a public place can only be done with prior permission of the council or an authorised person.
Otago University law professor Andrew Geddis said that if the beggars were able to prove the bylaw was void under the Bill of Rights, the council would not be able to use it to lay charges.
‘‘But the court could say there was a licensing regime and beggars can go to the council and ask for permission.
‘‘If they ask for permission, the council would have to give that permission in the same way they do for Greenpeace or Red Cross or anyone else asking for money.
‘‘On what basis could they distinguish?
‘‘To say: we want to choose the kind of people who are speaking and the kind of message they’re sending out ... that is choosing viewpoints and saying: some kind of speech is good and we like it we’ll let it happen, but other speech we dislike, is inconvenient and looks bad and we’re not going to let it happen,’’ Geddis said.
‘‘The whole point of freedom of speech, which is in the Bill of Rights Act, is that people should be able to speak regardless of what those in authority think of the message,’’ he said.