1. Section 17 of the Bylaw: “Defined Areas”

The Society submits that Section 17 (“Defined Areas”) of the Draft Beach Bylaw – 2008 – as it stands – should be deleted in its entirety. We challenge the Council to provide to the public any reasoned justification for such a provision based on the four specific examples given. Furthermore, we contend that the Council has no authority whatsoever to claim such a wide discretion over the beach – “without limitation” (17.1). The provision is ultra vires – it is beyond the powers of the Council to lay claim to such a wide discretion, one that could potentially lead to the imposition of severe limitations on the freedom of movement and behaviour of persons or classes of persons on Kapiti Coast beaches. It raises serious issues under the New Zealand Bill of Rights Act 1990 (NZBORA) if the Council approves any by-law enabling it to place unreasonable restrictions over certain “defined areas” of the beach, especially a provision that allows for no public consultations and/or submissions prior to a Council making resolutions as to such restrictions. Under s. 155 of the Local Government Act 2002 (LGA 02), the Council must consider whether a clause raises implications under the NZBORA.

In our view, the four examples of “defined areas” in s. 17 cannot possibly provide justification for this addition, when the Council already has powers under existing legislation to place restrictions on public access to such areas. For example, section 146 b(vi) of the LGA deals with “land under the control of the territorial authority”. This means all beach area under its control1 under the LGA 02. It is empowered with the task “of managing, regulating against, or protecting from, damage, misuse, or loss, or for preventing the use of, the land, structures, or infrastructure … land under [its] control [as] the territorial authority.” This includes safeguarding sand-dune restoration.

Section 145 of the LGA 02, allows the Council to make bylaws for the following purposes: protecting the public from nuisance, protecting, promoting, and maintaining public health and safety, or minimising the potential for offensive behaviour in public areas.

The Society challenges the Council to identify what safety problem(s) is being dealt with by the Section 17 examples given. We contend that there are none that cannot be dealt with adequately under existing legislation. What problems have been identified by the Council and documented by way of formal public complaints that would necessitate the imposition of a new by-law s 17 that would further erode public freedoms? Under section 155 of the LGA, the Council is required to be able to identify a perceived problem that can be addressed by a bylaw.

As currently worded, section 17 allows the Council to impose certain restrictions, limitations or conditions on certain “defined areas” by means of its own resolution, without requiring public consultation involving submissions etc. While it is true that the Council can impose a restriction or prohibition by Council resolution alone, without public input, it cannot do so if the by-law is so worded that to act upon it would be ultra vires. Section 17 is such a bylaw. The Bylaws Act 1910 contains a provision that would make any bylaw invalid if the latter provides the Council with so great a discretion as to be unreasonable. Section 17 – if tested in Court – would be declared invalid for this reason.

One can only assume that Council, when agreeing to accept Section 17 into its proposed Beach Bylaw, had other examples of “defined areas” beyond the four listed in mind. It is noteworthy that none of four given have as their focus, concerns over the effects of activities/behaviour of humans on others. If the Council still maintains that Section 17 should stand, despite considering matters raised above; but only moves to delete the four examples given, to be replaced with ones involving human behaviour; – a serious problem still remains.

Let us consider the defining of areas based on a human activity – such as nude swimming and nude beach activity (sunbathing, volley ball, BBQs etc). The Council would be acting ulta vires to define an area based on the so-called “clothes optional criteria. There are serious Bill of Rights issues to consider here. By defining an area based on such criteria sends two clear messages: [1] that to engage in such activity on the beach elsewhere (outside the defined zones) is contrary to the law and [2] to engage in nudity within the defined area is lawful. Both implications are problematic and overlook the force of Section 27 of the Summary Offences Act 1981, which states:

• 27 Indecent Exposure:

• (1) Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who, in or within view of any public place, intentionally and obscenely exposes any part of his or her genitals.
• (2) It is a defence in a prosecution under this section if the defendant proves that he or she had reasonable grounds for believing that he or she would not be observed.

There is only one defence provided in law to a charge of “indecent exposure” and the onus is on the defendant to prove his/her case (s. 27[2]). Any defence that seeks to rely on Council signage stating: “clothes optional,” or “beware of exposure to nudists,” or “enter nude are at your own risk,” or “close your eyes while crossing between A & B,” or “No prudes allowed in Nude Zone” etc; will be ruled out of order in Courts. Police will be required to consider laying charges when any person acting in a lewd or offensive manner within a so-called nudist area, causes offence to any member of the public, following genuine complains. The Council may well be drawn into costly litigation if such cases proceed to the Courts as in the two Ceramalus cases (see below).

2. Minimising the potential for offensive behaviour in public areas.

Under S. 145 of the LGA the Council is within its rights to place notices on any beach instructing the public as to what is considered “offensive behaviour in public places” and this could relate to nudity. However, to outright ban such behaviour, could be argued as over-reaching its jurisdiction given that (1) other laws cover such matters (e.g. ss. 4 and 27 of SOA) and (2) under the LGA 02 the Council would have to establish that a perceived problem existed to warrant such restrictions.

In the light of the fact that there are a huge variety of ethnic and cultural communities represented on the Kapiti Coast it behoves the Council to take into consideration the values, beliefs and customs etc. of these communities when addressing “perceived problems” by means of signage. People do need to be reminded that common courtesy, respect and consideration of others, should and must undergird all behaviour, particularly in a public place such as a beach. Signs warning potential offenders of the consequences of engaging in “indecent exposure” and “lewd” or “offensive behaviour” should not be necessary. However, if the public document to councillors by way of complaints – documenting the facts – significant numbers of offences of this kind in certain areas – the erection of appropriate warning signs should be an option the Council looks at seriously, as a means of addressing the problems raised.

The Society believes that the Council has not yet established that there is a “perceived problem” (relating to public nudity) as is required under the LGA 02; that would justify the erection of warning signs as outlined involving “banned behaviour”. Nor does it believe that there is a “perceived problem” identified by those advocating “no clothes zones”, that could possibly justify the creation of such areas for the enjoyment and cultivation of a small band of nudists, most of whom can go and join a private nudist club.

The Society believes that signage should be placed on all major beaches at the significant entry/access points, notifying the public of their responsibilities in terms of behaviour in general terms. The expectation of the majority of Kapiti Coast ratepayers is that they show consideration to others. Under s. 5.4, of the proposed draft by-law, the Council has seen fit to inform surfcasters “to take reasonable steps to ensure” they avoid creating “a safety hazard to other beach users”. Perhaps determined nudists need to be reminded by Council to keep their hazardous tackle boxes covered to avoid causing hazards!

The deliberate choice and action of some members of the public to engage in activities involving “indecent exposure” is recognised and defined in law as causing potential offence to others. If members of the public need to be reminded in s. 5.2 of the proposed Beach Bylaw not to “loiter in or around dressing shed or toilet”; it should not come as a surprise to Council that they may need to erect signage to remind people not engage in “indecent exposure”. A man was recently ordered off a very popular section of the Paraparaumu Beach recently, because he chose to expose himself fully naked (including his genitals) in front of a mother and her children. He told police that he thought that it was now legal to go nude on any of the Kapiti Coast beaches. One report suggested that Kapiti Coast councillors had been responsible for conveying this massage to him.

The Council would be acting ultra vires if it were to seek to regulate nudity in the beach environment. It cannot declare it lawful or acceptable in any area under its jurisdiction. It can remind the public of relevant sections of the SOA 1981 and commend the principles of respect, etc. to the public The Council must consider whether any action it takes by way of erecting signage, is a proportionate and rational response to the identified problem.

3. Beach Nudity and the Ceramalus cases.

The Society believes that the Council may have been misled into thinking that the case involving the acquittal of Mr Ceramalus by the High Court (Ceramalus v Police AP 76/91) for offensive behaviour, brought by the police under s. 4(1)(a) of the SOA 1981; sets a precedent in case law – establishing that merely being naked on a beach is not offensive. However, it is an over-simplification of the case law to draw this conclusion from what we can refer to as Ceramalus 1.

The police’s initial charge against the defendant of “indecent exposure” (under s. 27 of the SOA) was dropped and only a charge under s. 4(1)(a) of the Act were pursued in the District Court. Despite being convicted of the latter offence – “offensive behaviour” – no penalty was imposed on the defendant. And yet Ceramalus appealed the conviction to the High Court and won. The latter ruling does not say anything about the way the law deals with a charge laid under s. 27(1) – one of “indecent exposure”. The High Court Judge took the view that the threshold level of offence had not been reached to warrant a conviction for “offensive behaviour” – the behaviour he wrote – “must be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”.

This case cannot be used as an authority for the assertion that nudity on beaches will never amount to offensive or disorderly behaviour in breach of s. 4(1)(a) of the SOA 1981. Judge Tompkins emphasised that in judging the behaviour in terms of “matter of degree”, factors such as relevant time, place and circumstances, had to be taken into account.

The second Ceramalus case2 in 1995 established that walking down a suburban street naked, openly in view of children, does constitute disorderly conduct behaviour. The High Court established that the context of the behaviour was of critical importance. In his decision Justice Morris indicated that he might have decided Ceramalus 1 differently. Ceramalus unsuccessfully sought to appeal his case further to the Court of Appeal.

The Society wants the Council to disregard the erroneous proposition put to it in a legal opinion presented by the Free Beach Movement (Inc.) – a nudist lobby group – that Ceramalus 1 establishes in case law that going nude on a New Zealand beach does not constitute offensive behaviour. The Council should avail itself of the full facts relating to all the Ceramalus cases and study section 27 of the SOA 1981.

4. The Bill of Rights Act

Here again the Society believes that the Council may have been misled by those promoting so-called freedom of expression and who see the promotion of nudity and optional clothing zones as a liberating public activity that promotes freedom of expression. Section 19 of the BOR states:

19. Freedom from discrimination:

• (1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.
• (2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.

Those opposing any Council by-law that might spell out that advocating nude beaches on the basis that

However, “freedom of expression” is not the overriding and only principle to consider here. Sections 5 & 6 of the BOR must be taken into account as well

5. Justified limitations.

• Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

6. Interpretation consistent with Bill of Rights to be preferred.

• Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

The Society will elaborate on these matters in its oral submission to Council.

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Note: The Society wishes to make an oral submission to Council on this matter.

For the Society for Promotion of Community Standards

On behalf of Society Members who reside on the Kapiti Coast.

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1 Area of beach between Mean High Water Springs and Mean Low-Water Springs.

2 Ceramalus v Police 1991 CRNZ 678

To view Beach Bylaw 2008 see:

http://www.kapiticoast.govt.nz:80/Home/Consultation.htm