An Auckland Council agency has admitted its bylaw on local body election signs limits freedom of expression and may breach the Bill of Rights.
Mayoral candidate Vic Crone was ordered to remove advertising from a permanent commercial billboard site. Photo: RNZ / Todd Niall
Auckland Transport (AT) has for the first time acknowledged problems in the bylaw, after RNZ questioned whether it might be illegal nearly six months ago.
The agency initially suggested to the Minister of Transport that it could modify the bylaw before October's election but has run out of time and will now review it after October.
Mayoral candidate Vic Crone was ordered in March to remove advertising from a permanent commercial billboard site prompting questions on whether the modified bylaw contravened the Bill of Rights.
Signs on commercial and private sites used to be unregulated but, two years ago, Auckland Transport tightened its bylaw and the sites became covered by the same nine-week campaign advertising restriction that traditionally applied only to hoardings on public land.
Auckland Transport, which drafted the bylaw, and Auckland Council, which enforces it, insisted they had the right to order the removal of election advertising outside the specified nine-week window.
Otago University law professor Andrew Geddis disagreed, saying the candidates had a right to freedom of expression guaranteed under the Bill of Rights Act.
"That means Auckland Transport cannot make a rule infringing it unless that infringement is 'reasonable' and can be demonstrably justified in a free and democratic society," he said.
The agency and the council refused comment on the bylaw but the Minister of Transport Simon Bridges responded to questions from RNZ by ordering the agency to explain.
Mr Bridges oversees the legislation covering the bylaw, and asked a series of questions about whether Auckland's election signage rules complied with legislation and the Bill of Rights Act.
In letters, released by Mr Bridges under the Official Information Act, Auckland Transport's chief executive David Warburton told the minister that after having the bylaw reviewed by law firm Russell McVeagh the agency believed it did comply.
"That said, ... AT acknowledges that some aspects of the bylaw impose limits on the right to freedom of expression that raises some concerns regarding Bill of Rights Act consistency," he wrote.
"Although those limits can be considered justifiable, AT acknowledges that another person could take a different view."
Auckland Transport initially offered to make changes, including extending the period under which it would allow election advertising, and removing restrictions on permanent commercial sites.
However, when the minister raised further questions, it was agreed to go with Auckland Transport's next suggestion of a full review with public consultation, after the October election.
"This review is likely to consider releasing some of the constraints on these signs from the control process," Dr Warburton wrote.
Ms Crone said the decision had come too late for this election campaign, and she was not surprised that Auckland Transport had decided change was needed to the bylaw.
"It's pretty clear, and independent lawyers from Chen and Palmer identified it straight away," she said.
"What frustrates me is that they would not take seriously what I was saying, yet they acknowledged behind closed doors that there could be an issue here."
There has been no comment from Auckland Transport or Auckland Council.