GREENHORN v THE SPEAKER OF THE HOUSE OF REPRESENTATIVES [2023] NZHC 2865

GREENHORN v THE SPEAKER OF THE HOUSE OF REPRESENTATIVES [2023] NZHC 2865 [12 October2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2023-485-14[2023] NZHC 2865UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial reviewBETWEEN LINDA GREENHORNApplicantAND THE SPEAKER OF THE HOUSE OFREPRESENTATIVESRespondentHearing: 21 September 2023Counsel: Applicant in personS L Gwynn and S V McKechnie for RespondentJudgment: 12 October 2023JUDGMENT OF RADICH JIntroduction[1] Between 8 February and 2 March 2022, a large group of people occupied thegrounds of Parliament and surrounding areas. They did so in order to protestagainst (primarily) the public health measures the government had put in place inrelation to the COVID-19 pandemic. Mrs Greenhorn, the applicant, was one of thosepeople.[2] Some of the people at the protest, including Mrs Greenhorn, were issued withtrespass notices by the Speaker of the House of Representatives (the Speaker).Although the notice issued to her was withdrawn in March 2023, Mrs Greenhornseeks, through this judicial review proceeding, a declaration relating to its lawfulness.She seeks, in addition, an apology from the Speaker for having issued it in the firstplace and payment of certain expenses incurred in bringing the proceeding.Factual background[3] Approximately 100 people camped overnight at Parliament on the first nightof the protest and, over the ensuing weeks, the number grew to over a thousand.[4] On 10 February 2022, the Police broadcast messages through loudhailerswarning the protesters that Parliament grounds were closed and that they were requiredto leave the grounds. Soon afterwards on that day, Mrs Greenhorn and others werearrested and charged with wilful trespass and were detained in custody. She wasreleased from custody on 14 February 2022. She then returned to the parliamentaryprecinct to continue her involvement in the protest. The Police removed protestersfrom the area on 2 March 2022.[5] On 22 March 2022, the Police provided the Chief Executive of theParliamentary Service with a list of the people who had been arrested for trespass onParliament grounds during the protest. Mrs Greenhorn's name was on the list.[6] On 30 March 2022, the Speaker decided to issue a trespass notice to each ofthe people on the list, and to others, under s 4 of the Trespass Act 1980. On 21 April2022, the Speaker issued Mrs Greenhorn with a trespass notice under that provision.The notice warned Mrs Greenhorn that she would be committing an offence if shewilfully entered the parliamentary precinct within two years of the date on which shereceived the notice.1 It was said that the Parliamentary Service intended to review thenotice after a year and that it may withdraw the notice if it was no longer considerednecessary to retain it.[7] Mrs Greenhorn tried unsuccessfully to have the trespass notice withdrawnseveral times over the balance of the year. On 30 March 2023, the ParliamentaryService, having reviewed the trespass notice that had been issued to Mrs Greenhorn,withdrew it.1 Under s 4 of the Trespass Act 1980, a person commits an offence who, having received a trespassnotice, wilfully trespasses on the place within two years.The positions of the partiesMrs Greenhorn[8] Mrs Greenhorn brought this proceeding on 8 December 2022. At that time, thetrespass notice that had been issued to her remained in force. In the statement of claim,she sought for the trespass notice to be withdrawn, an apology from the Speaker forhaving issued it and for her costs in bringing the application to be reimbursed.[9] As Mrs Greenhorn said during the hearing, she came to Wellington to attendthe protest in order to stand up for the rights of her children; to do what she could tomake a better future for them. She stayed for the duration of the protest. It was asignificant ordeal for her involving, as it did, her arrest and imprisonment for four dayson a charge of wilful trespass. While she was released from custody on 14 February2022, the charges against her (and others) remained in place and were not withdrawnuntil 31 October 2022. They were withdrawn primarily on the basis that she hadalready spent four days in custody. As Mrs Greenhorn said, she came to Wellingtonfor answers, found herself arrested for – as she saw it – the exercise of her fundamentalrights, and was detained in circumstances that I accept were traumatic for her.[10] There are a number of details in the arresting officer's statement with whichMrs Greenhorn takes issue. She mentions these points by way of background butfocuses upon the issue of the trespass notice – something she is deeply concernedabout.[11] She submits that the Speaker issued the trespass notice seven weeks after shehad left the protest, that she did not at any time pose a risk to staff or to the grounds ofParliament, that the Security Manager at Parliament acted unfairly, failed to keep hersafe and failed, following her request, to provide her with video footage that had beentaken of her arrest. She says that there is no available evidence that she received awarning to leave the parliamentary precinct, that she was not aware of, or told about,the circumstances that led to her receiving the notice and that not all protest attendeeswere issued with a trespass notice.[12] She phoned and emailed the House of Representatives about the notice. Asshe said during the hearing, she just wanted to talk to someone about it. She could notunderstand the basis upon which she had received it. That remains the case.[13] Mrs Greenhorn feels very strongly about the need for an apology to be givento her. She sees the Speaker's actions in issuing the notice as being inappropriate. Shesays that she is owed an apology for the ways in which she has been treated, for herarrest and imprisonment and for having been issued with the trespass notice whilehaving been denied a proper explanation for it. She has observed that a Google searchfor her name leads to an article in the New Zealand Herald about the protest and herinvolvement.[14] Mrs Greenhorn sees the issue of the trespass notice as being unlawful in termsof the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act), the Human RightsAct 1993 and ss 3 and 4 of the Trespass Act. She says that at the very least it neededto be withdrawn much earlier than it was on 30 March 2023.[15] She refers to orders made by consent in proceedings brought by theRt Hon Winston Peters which, among other things, declared the trespass notice issuedto Mr Peters during the protests at Parliament to have been an unjustified limitation ofhis rights.2 She considered that her claim should be handled consistently with that ofMr Peters.[16] The costs that Mrs Greenhorn seeks relate just to the expenses she incurred infiling and serving this proceeding. She travelled to Wellington in order to do so andincurred costs of $1,178.83 – for filing fees, flights, accommodation, car parking andincidental expenses.The respondent[17] The respondent says, first, that the trespass notice was issued lawfully and inaccordance with the Trespass Act. Although Parliament grounds is a public space, itis said that members of the public are permitted to protest there but in accordance with2 Peters v The Speaker of the House of Representatives [2022] NZHC 2718.the Speaker's Rules.3 The Speaker's Rules include a range of restrictions includingusing pedestrian ways so as to avoid damage to lawns and flowers, not mounting themain steps, directing sound amplification away from the buildings, restricting timesduring which sound equipment can be used, not erecting tents or structures andlimiting protests and demonstrations to daylight hours.[18] The respondent says that the Speaker, as occupier of Parliament grounds forthe purposes of the Trespass Act, was authorised to issue the trespass notice toMrs Greenhorn on the basis that she had been arrested and detained by the Police forwilful trespass, even although charges against her ultimately were not pursued. It wassaid that the trespass notice was issued within a reasonable time after the trespassoccurred given, amongst other things, the date on which the protest ended, the size andscale of the protest, its unprecedented nature and the number of notices that wereissued.[19] Secondly, the respondent says that the decision to issue the trespass notice wasreasonable and was not exercised in a manner that was inconsistent with fundamentalrights and freedoms.[20] The respondent says it is recognised it is unlikely that it would be reasonableto issue a s 4 trespass notice for Parliament grounds in anything other than anexceptional case.4 He considers this to be such a case. It is said that, whileMrs Greenhorn's civil rights and freedoms were engaged in this case, they wereengaged to a limited extent only in the sense that, while she was unable to be presentphysically on Parliament grounds, there are alternative mechanisms that would allowher to exercise her civil rights and freedoms.5 Moreover, it is said that, in terms of s 5of the Bill of Rights Act, Mrs Greenhorn's rights and freedoms were subject only tosuch reasonable limits – through the trespass notice – as can be demonstrably justifiedin a free and democratic society.3 "Standard Conditions for Protests and Demonstrations on Parliament Grounds", in place since1999 and available on Parliament's website.4 Referring to the Trespass Guide that is in place for Parliamentary Security Officers.5 Reference was made to the availability of alternative means of participation in Parliament'sbusiness such as broadcasts and live streaming of proceedings of the House and Committees andthe option to give evidence at Committees by Zoom.[21] Reference was made to the list of factors that a Full Bench of the High Courtset out in Police v Beggs when considering the exercise by the Speaker of rights underthe Trespass Act.6 It was said that, in terms of that list, the Speaker was aware thatMrs Greenhorn was involved with the protest; that the size, scale, duration andescalation of the protest raised significant safety concerns; that the protest interferedin significant ways with the rights and freedoms of other members of the public andwith the rights of those whose business duties take them to Parliament; that the protestlimited severely the rights of the Speaker and the Crown to operate, manage andcontrol its property; and that the protest raised significant public order and safetyconcerns.[22] Thirdly, it is said for the respondent that the issuing of the trespass notice wasnot inconsistent with the right to be free from discrimination under the Bill of RightsAct. It is said that Mrs Greenhorn has not identified a prohibited ground ofdiscrimination or any differential treatment as between her and others arrested at theprotest. The Speaker's decision was, it is said, consistent with s 19 of the Bill of RightsAct.[23] Fourthly, the respondent says that the circumstances here are different to thosethat arose in Mr Peters' case against the Speaker which was resolved followingsettlement.7[24] Fifthly, the respondent says that the withdrawal of the trespass notice on30 March 2023 was lawful and reasonable. While a trespass notice remains in effectfor a period of two years,8 the notice issued to Mrs Greenhorn, it was said, waswithdrawn after a year when it was concluded that there was no ongoing risk or threatthat could not be managed by other means.[25] It is said that, while Mrs Greenhorn expressed the view that the withdrawal"should have happened a lot earlier",9 at the time at which, in September 2022,6 Police v Beggs [1999] 3 NZLR 615 (HC) at [629]–[631].7 Peters v The Speaker of the House of Representatives, above n 2.8 Trespass Act, s 4(4).9 A reference to content from the Statement of Claim.Mrs Greenhorn sought to have the trespass notice withdrawn, the criminal chargesagainst her were still before the Court.Discussion[26] Section 4(1) of the Trespass Act is in the following terms:Where any person is trespassing or has trespassed on any place, an occupierof that place may, at the time of the trespass or within a reasonable timethereafter, warn him to stay off that place.[27] A warning can be given to a person orally or by notice in writing.10 The"warning" is referred to in practice as a "trespass notice".[28] Under s 4(4) of the Trespass Act, every person commits an offence if they arewarned to stay off any place and wilfully trespass on that place within two years afterthe giving of the warning. While the two-year minimum period is prescribed by theAct, an occupier may withdraw a trespass notice at an earlier point in time.[29] There is little doubt that the trespass notice in this case was issued inaccordance with the requirements of the Trespass Act. The Speaker is an occupier ofParliament grounds for the purpose of the Act.11 The Speaker's Rules do amount tothe conditions of a licence to protest or assemble on Parliament grounds.12[30] I can certainly understand Mrs Greenhorn's position, as she expressed it to theCourt. She did not see that she was doing anything more than exercising her rights.However, in circumstances in which oral warnings to stay off Parliament grounds weregiven on the morning of 10 February 2022 and in which Mrs Greenhorn was arrestedand detained for wilful trespass on that day, the terms of s 4 were satisfied.[31] However, it is not just a matter of satisfying the terms of s 4 of the TrespassAct, on their face. The Speaker is exercising a public function when, as an occupier,10 Trespass Act, s 5.11 Parliamentary Service Act 2000, s 26(2).12 Police v Beggs, above n 6, at 624, upheld by the Court of Appeal in Attorney-General v Beggs[2002] NZAR 917 (CA).he is considering the use of powers under the Trespass Act. That function must beexercised consistently with the Bill of Rights Act.13[32] Several rights within the Bill of Rights Act are engaged through the issue bythe Speaker of the trespass notice: the right to freedom of expression, including thefreedom to seek, receive and impart information and opinions of any kind and anyform,14 the right to freedom of peaceful assembly,15 the right to freedom ofassociation,16 and the right to freedom of movement.17[33] People who are permitted access to a public place such as Parliament groundsmust be able to exercise these rights. Yet, as the Court made clear in Police v Beggs,these rights are not absolute.18 As the Court said in that case, if a protest or assemblyis unlawful or if individuals behave in a disorderly manner or breach or threaten tobreach the peace, or unreasonably infringe the rights of others, or create a civilnuisance, the Speaker could not be said to be acting unreasonably in requiring theirdeparture. In speaking of the "rights of others", the Court was including the rights ofthe occupier to enable preservation of their property and reasonable limitations on itsuse. As the Court said, the "test will always be what is reasonable in thecircumstances".19[34] While what is reasonable will largely depend on the circumstances of eachcase, the Court in Police v Beggs suggested a list of six relevant circumstances. Theyprovide a useful basis for considering the reasonableness of the Speaker's actions inthis case. I discuss their application to the circumstances of this case.The applicant's role in the protest[35] The Speaker was aware that the applicant was at the protest as the Police hadprovided him with a list of arrested individuals.13 Police v Beggs, above n 6 at 626.14 New Zealand Bill of Rights Act 1990, s 14.15 Section 16.16 Section 17.17 Section 18.18 Police v Beggs, above n 6 at 627.19 At 627.The nature of the assembly — whether it was unreasonably prolonged[36] The protest was, in terms of its scale, size and duration, unprecedented. As isexplained in the evidence for the Speaker, it was escalating and raised significantsafety concerns. In many ways it was peaceful but in others it was disorderly andunlawful. It did violate a number of the Speaker's Rules. A hostile and aggressivestand was taken by a number of protesters towards Parliamentary Security and thePolice. I do not refer to Mrs Greenhorn directly when I say that a number of protesterstook an aggressive stance. That is not in issue. Rather, I am considering at a broaderlevel the Speaker's decision to warn people to stay away and then to issue trespassnotices to some people, including those arrested.The rights and freedoms of other people enjoying the privilege of being on Parliamentgrounds[37] There is little doubt that the protest interfered in material ways with the rightsand freedoms of other members of the public to exercise their own rights and freedomsunder the Bill of Rights Act.The rights of the occupier and those whose business or duties take them to Parliament[38] As the Chief Security Officer at Parliament has said in evidence, the protestimpacted parliamentary operations significantly. The House was inhibited in carryingout its functions. Access to the Parliament forecourt was restricted, access toParliament Buildings was limited and the parliamentary precinct was closed to thepublic.Maintaining public order[39] The interest in maintaining public order is a recognised constraint within theUnited Nations' International Covenant on Civil and Political Rights 1966 (CCPR).20As the High Court in Police v Beggs observed, in the commentary on the CCPR, "theprotected 'public order' interests is found in all provisions" and enables Member States20 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976).to ensure the smooth functioning of gatherings and demonstrations.21 As the ChiefSecurity Officer at Parliament has said in his evidence, Parliamentary Security andPolice were not able to maintain peace within the protest. It was not safe forParliamentary Security to engage with any of the protesters. As a result, Parliamentgrounds were closed from 10 February to 16 March 2022 and between 31 March and19 April 2022. And, as the Chief Executive of the Parliamentary Security has said inevidence, there were concerns that there was a risk of another protest of the same scale,unpredictability and escalation, especially because the vaccination mandatescontinued to exist.[40] For all of these reasons, I am satisfied that the use of trespass notices as one ofthe means to respond to issues that were arising in the parliamentary protests wasreasonable. While the notice issued to Mrs Greenhorn was a restriction on her rights,it was, in terms of s 5 of the Bill of Rights Act, subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society.[41] And, while the trespass notice was, in and of itself, a reasonable limit,Mrs Greenhorn's rights were limited only to the extent reasonably necessary. Thetrespass notice was to be, and was, reviewed after one year.[42] In addition, it can fairly be said that, while Mrs Greenhorn's rights to be onParliament grounds were limited for a 12-month period, her relevant rights during thattime could otherwise be exercised. As the United Kingdom Supreme Court foundrelatively recently, placing limits on protest action locations did not prevent anti-abortion protesters in Northern Ireland from exercising their rights to freedom ofexpression and freedom of peaceful assembly: "They can do so wherever they pleaseexcept within the immediate vicinity of hospitals and clinics where abortion servicesare provided".2221 Manfred Nowak UN Covenant on Civil and Political Rights: CCPR Commentary (1st ed, EngelPublisher, Germany, 1993) at 380–381.22 Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones)(Northern Ireland) Bill [2022] UKSC 32 at [132], which was considering whether the Bill wascompatible with the rights of protesters.[43] The Court, while acknowledging the importance of location in the context ofprotests, said that the European Convention on Human Rights23 "does not bestow anyfreedom of forum for the exercise of the right to protest".24[44] And, here, the limitation is mitigated further by the ability of a person, whocannot enter Parliament grounds for a time, to access Parliament's debates and theproceedings of Select Committees online.[45] In Police v Beggs, the Court said that the Speaker, in exercising the occupier'spower to act under the Trespass Act, must as a minimum act in good faith, exercise thepower only for purpose for which it was conferred, exercise it reasonably and with dueregard to the wishes of all users of Parliament grounds and must consider the rights ofthe Speaker and the Crown effectively to operate, manage and control its property. Iam satisfied that the Speaker has acted appropriately here and in accordance with theseconsiderations.[46] Mrs Greenhorn has referred also to the trespass notice amounting to a breachof her right to be free from discrimination. It is said that the Speaker has discriminatedagainst Mrs Greenhorn on the basis of her name being on the list of those to whomtrespass notices were issued. She has said that many people who attended the protestsdid not receive trespass notices.[47] However, the difficulty with this argument is that it does not raise a prohibitedground of discrimination. The differential treatment between Mrs Greenhorn andothers not arrested during the protest is not a prohibited ground of discrimination unders 19 of the Bill of Rights Act and s 21 of the Human Rights Act.25[48] Equally, the withdrawal of the notice on 30 March 2023 was in my view bothlawful and reasonable.23 Which is given effect through the Human Rights Act 1998 (UK).24 Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones)(Northern Ireland) Bill, above n 24, at [127].25 The prohibited grounds of discrimination under s 21 of the Human Rights Act 1993 are sex,marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability,age, political opinion, employment status, family status and sexual orientation.[49] I do not see it as being unreasonable for the notice not to have been withdrawnat an earlier point in time. The ongoing public health measures in place relating to theCOVID-19 pandemic continued throughout 2022 and early 2023. Concerns about therisk of further protests remained during that time.[50] The review of the trespass notices occurred at a point in time that was earlierthan the one-year period that had been signalled when the notices were issued.[51] While Mrs Greenhorn has expressed the view that the review should havehappened a lot earlier, the points made above, combined with the fact that her criminalcharges were still before the Court until October 2022, mean that it is at least notunreasonable for it to have taken until March 2023 for it to be withdrawn.26[52] For these reasons, while the trespass notice issued to Mrs Greenhorn waswithout doubt a limitation on fundamental rights, it was issued in a way that wasreasonable in terms of the Bill of Rights Act and it was withdrawn in a timely andreasonable manner.[53] Mrs Greenhorn has said, in addition, that it is wrong that the treatment she hasreceived is inconsistent with that received by Mr Peters who had received a trespassnotice as well.[54] Orders were made by consent in Mr Peters' case against the Speaker, declaringthe issue of a warning under s 4 of the Trespass Act to Mr Peters to have beenunreasonable, irrational, and an unjustified limitation on Mr Peters' rights.27 However,the basis upon which the parties in the Peters case agreed to the declarations are notknown to the Court and nor should they be. Equally, the facts and circumstances ofthat case do differ from those here. This is not a matter that the Court can take intoaccount.26 While Mrs Greenhorn makes the point that the charges should not have been brought in the firstplace and that charges against others had been dismissed by courts, this Court is not concernedwith, and nor is it in a position to consider, the charges themselves.27 Peters v The Speaker of the House of Representatives, above n 2.Relief sought[55] Mrs Greenhorn said she has brought these proceedings for three reasons. First,she wanted the trespass notice withdrawn. Although that has now been done, she hassought, essentially, a form of declaratory relief about the lawfulness of the issue of thetrespass notice in the first place. Secondly, she wanted repayment of a set ofreasonably modest costs she had incurred relating to the filing and service of thejudicial review proceeding to be reimbursed. Thirdly, as described in [13] above, shefeels strongly that she is owed an apology.[56] For the reasons given, a declaration about the lawfulness of the trespass noticecannot, having regard to the relevant facts and circumstances, be made. However,even if I had found there to have been unlawfulness of any kind in relation to the issueof the trespass notice, the Court does not have jurisdiction to order the Speaker toprovide an apology as a result. There is no power, whether in statute or at commonlaw, that would enable an order of that sort of to be made.[57] An apology could only be given if the Speaker agreed to do so. The Speakerdoes not agree and so an apology on that basis is not possible here either.Outcome[58] For the reasons given, the application for judicial review is declined.Costs[59] Because Mrs Greenhorn's claims have not succeeded, there is no tenable basisfor the costs she has claimed from the Speaker to be the subject of relief.[60] The Speaker has sought costs against Mrs Greenhorn on a 1A basis. It is saidfor the Speaker that he had notified Mrs Greenhorn that, if she continued with theproceedings following the withdrawal of her trespass notice, he would seekreimbursement of his legal costs against her in the event that he was successful in thisproceeding. The Speaker is, it is said, concerned with the costs to the ParliamentaryService and to the taxpayer in responding to this proceeding.[61] In the normal course, having been unsuccessful in the claim that she hasbrought, Mrs Greenhorn would under the costs regime in the High Court Rules 2016,be required to meet a portion of the Speaker's costs. However, this is one of thoseexceptional cases in which, despite the claim being unsuccessful, an award of costs isnot warranted.[62] As I have mentioned earlier, the events that led to Mrs Greenhorn bringing thisproceeding have been a significant and emotional ordeal for her. She has seen herselfas doing no more than exercising her rights for the benefit of her children. She hasconducted the proceeding responsibly and she made compelling submissions duringthe hearing.[63] As the Supreme Court said in Attorney-General v Udompun, applying normalcosts rules in cases of this type may discourage litigants from bringing Bill of RightsAct claims.28 This would have the result of weakening Bill of Rights Act protections.That will not always be the case. A case-by-case assessment will always be required.But, whether looked at through this lens or under the discretion in r 14.7(e) and (g) torefuse costs in a proceeding that is concerned with a matter of public interest or forsome other valid reason, this is in my view an exceptional case in which it would notbe appropriate for an individual seeking to uphold their perception of theirfundamental rights to be required to pay a sum of money to the Speaker.______________________Radich JSolicitors:Simpson Grierson for Respondent28 Attorney-General v Udompun [2005] 3 NZLR 204, (2005) 7 HRNZ 811 (CA) at [186].