Stephen Franks is a nationally known lawyer, expert in company and securities law, and law reform.
After early general practice he spent two years in the Office of the Ombudsmen then joined Chapman Tripp in 1979, became a partner in 1981 and served as Chairman of the firm’s National Board. He had six years in Parliament, then four back as a consultant with Chapman Tripp before establishing in July 2009 a specialty law firm, Franks & Ogilvie (Commercial and Public Law Limited) to focus on the intersection of government and commerce.
Stephen ran a vigorous campaign for election in 2008 as the National Party candidate for Wellington Central but the seat was retained by Labour.
He’s been a member of the Securities Commission, the Council of the IOD, and the NZ Stock Exchange’s Market Surveillance Panel. In 2009/10 he served on the Minister of Energy’s expert advisory group on the electricity market structure.
He advised the New Zealand Dairy Board on the route to the creation of Fonterra, the Ministry of Commerce in drafting the Electricity Industry Reform Act, Telecom New Zealand during its privatisation and initial international public offering and the World Bank on legal aspects of corporatisation and privatisation.
Other current interests include a 2,000ha manuka and grazing block, mountain biking, and kayaking. Stephen is married to Catharine and they have four young adult children.
Summary
Just like any other public place, you can be trespassed from Parliament. But unlike any other public place, the decision to do so, by the Speaker is open to review and must take in to account rights under the NZ Bill of Rights.
Background
During the protests on Parliament’s lawn in March and April 2022, hundreds of people were trespassed from the grounds. Many of them returned during the protest. However, since then and more than 2 months since the protest ended, people have received trespass notice banning them from Parliament grounds for the next two years. The most high profile people to receive such notices were former Deputy Prime Minister and former Member for Northland, Matt King.
The notices themselves do not provide any reasons for the notice except they are made in accordance with sections 4(1) or 4(2) or 4(4) of the Trespass Act 1980.
Key Provisions
The Trespass Act 1980 applies to Parliament Grounds.
Section 4 of the Trespass Act 1980 allows for a trespass notice to be issued when a person has been warned to stay off the site. The occupier (for Parliament this is the Speaker) may do so if –
- Subsection (1) where the purpose has trespassed on the place, the person may within a reasonable time, warn them off that place
- Subsection (2) they have reasonable cause to suspect the person is likely to trespass on that place.
Subsection (4) states it is an offence against the Act, if that person, then wilfully trespasses within two years.
The New Zealand Bill of Rights Act 1990 states that everyone has the right to freedom of expression (section 14) and freedom of peaceful assembly (section 16). But they may be subject to reasonable limits as demonstrably justified in a free and democratic society.
Application to Parliamentary Protest
There are a number of technical requirements that must be satisfied when a trespass notice is issued, such as the manner the warning was given and the information provided in the notice.
As the occupier of Parliament is the Speaker, their decision is a public function and therefore subject to judicial review. This action looks at the process of the decision being made and would take in to what factors were taken in to account when making the decision (and which were not),the time frame for making the decision, whether there was any bias or improper purpose in making the decision and whether it was arbitrary.
In 1997, 300 students protested at Parliament. They were trespassed and arrested. The case went all the way through to the Court of Appeal, and it was upheld that while a trespass notice could be issued it was subject to the NZ Bill of Rights.
The decision to trespass can only be reasonable if it is a justifiable limit on the rights of freedom of assembly or expression. The questions the court asked to determine whether it was justified in regard to the student protest was whether the individuals behaved in a disorderly manner, breached or threatened to breach the peace or unreasonably infringe on the rights of others.
The law, to date, has not specifically considered whether a particular individual’s former role (as as being a MP) would affect this decision. Mr King, as a former MP, has stated publically, that he intends to run for election in 2023and if elected, would therefore be required to attend Parliament within the two year trespass notice period. It would be difficult to argue at that point that such a limitation could be justified.
Franks Ogilvie Director Stephen Franks, a former MP, was also told verbally he may receive a trespass order for speaking with people at the protest but did not receive.
Director Stephen Franks was on RadioNZ's The Panel on Monday 8 November. Joining host Wallace Chapman and fellow panelist Penny Ashton, they discussed alert level changes for Auckland and Northland, tax bills for parents who help their children in to the market, and baseball caps for Police.
To listen, click on the following links -
Recently the Otago Daily Times reported Wanaka resident Dean Rankin had launched a petition to the Local Government Commission asking them to investigate options for Wanaka and Upper Clutha to secede from the Queenstown Lakes District Council.
The petitioners believe the District Council is too ‘Queenstown-centric’, and that the Council’s management of development and infrastructure for Wanaka and Upper Clutha has fallen by the wayside despite their rapid growth. The petition now has the required number of signatures for the Local Government Commission to launch in investigation into whether it is desirable to reorganize local government in the region.
In 2015, Franks Ogilvie acted for Auckland’s Northern Action Group, who similarly wanted North Rodney removed from Auckland Council control. They successfully challenged the Commission’s decision not to assess the Group’s application because it was not of public interest. The Commission was ordered to reassess the Group’s application and give the Group an opportunity to present its case with greater detail. The Group challenged the Commission subsequent findings that reorganisation was not the preferred option in 2019, but was unsuccessful.
Legal requirements and steps for reorganisation
The Local Government Act 2002 sets out the powers and duties of local governments, specifics on how they are to be run and how local governments can reorganize. While the primary provisions for giving effect to reorganisation are housed in Part 3 of the Act, most of steps in the legal process are detailed in Schedule 3 of the Act, and is carried out by the Local Government Commission.
One - Initiative or petition
The reorganisation process is initiated when the criteria under Sch 3 cl 3 of the Act are met. Either the Minister for Local Government or an affected local authority proposes a “reorganisation initiative”, or the Commission receives a petition of 10% of electors from a given area requesting an investigation. The request must contain all the necessary criteria listed in cl 4.
Upon receiving an initiative or request, the Commission decides whether to undergo an investigation having regard to mandatory considerations under cl 6, such as the cost of an investigation, and the likely improvements that may result from an investigation.
The Commission then gives notice of its decision.
Two - The Commission undertakes an investigation
The Commission then establishes an investigation process under cl 7. The process document details the instigation, its timetable, the key stakeholders, and how members of the effected community will be consulted.
The objectives of the investigation are listed in cl 10. Considering them, the Commission assesses the desirability of reorganisation or whether the status quo should be maintained. These objectives include better fulfillment of local representation, and effectiveness and efficiently of local authorities.
The Commission may request the assistance or consult anyone it considers appropriate in coming to its determination under cl8.
Three - Reorganisation Plan
If reorganisation is deemed preferable, the Commission can develop a ‘reorganisation plan’ under cl 12. An adopted plan must detail the requisite matters listed in cl 14.
Where the reorganisation plan is developed by the Commission, the plan must be polled among the electors of the affected local government under cl 25. If more than 50% of the votes are in favour of the plan the Minister for Local Government must recommend giving effect to the plan in an Order in Council under s 25.
If a local government develops its own plan, it is required to conduct public consultation while developing it. The local government then submits the plan to the Commission for approval under cl 22C.If approved, the Minister must consider whether recommend giving effect to the plan in an Order in Council under s 25.
Four - Implementation Scheme
Finally, the Commission prepares an ‘implementation scheme’ under cl 41, which sets out how the reorganisation plan will be implemented. A scheme is then given effect by an Order in Council under s 26. Afterwards the affected local governments are reorganised.
Transition bodies
“Transition bodies” may be set up when an Order in Council gives effect to a reorganisation plan under cl 34. They undertake the responsibilities given to them by the Order in Council and work with the Commission by giving effect to its decisions. These bodies can continue to operate until the implementation scheme is completed.
There is no set time, but the process can take up more than three years to complete. For example, the West Coast underwent reorganisation in 2019 after the Commission first receiving a request in2015. It is unlikely that Mr Rankin and his petitions will see a Wanaka secession before the next local government election.
If you would like further information on local government reorganisation, please contact Director Stephen Franks.
