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The News

Limiting the enjoyment of a human right

6 March 2013, New Zealand High Court, Wadsworth v. Auckland Council per Ellis J.

Keywords: permanent  injunction to stop a protest – application of the Oakes Test – limitations to human rights


The Auckland District Court granted a permanent injunction under the Local Government Act, Bylaw 20, against a group of protestors who  occupied Aotea Square (a prominent public place), putting up tents and taking it over for a long and indefinite period of time. The Auckland District Court recognised that this injunction would limit certain of the protestors’ rights under the New Zealand Bill of Rights Act 1990), but deemed that on the basis of the Oakes Test, these limitations could be justified in a free and democratic society.


Some of the protestors appealed from this judgement, to the New Zealand High Court (NZHC).


The Oakes Test was established by the Supreme Court of Canada (R v. Oakes, 28 February 1986).  According to this test, a limitation of a right will be regarded as reasonable and demonstrably justified in a free and democratic society if:


i. The objective of the provision (in this present case, bylaw 20 of the Local Government Act) is pressing and substantial to warrant overriding a protected right or freedom. The greater the perceived importance, the more likely that the courts will find the measures taken were reasonable and demonstrably justified;

ii. There is a rational connection to this objective. In other words, the limitation must be carefully designed to achieve the relevant objective, not arbitrary, unfair, or based on irrational considerations;

iii. The right is impaired as little as is reasonably possible. It is not enough if the means adopted fall within the range of reasonable solutions to the problem;

iv. Proportionality between the limitation and the objective. At this stage, the elements identified under the previous heads are balanced to determine whether the restriction to a fundamental right is demonstrably justifed in a free and democratic society.

The NZHC considered whether the case before it passed the four limbs of the  Oakes Test.

The NZHC ruled that the actual Bylaw complained about did satisfy the Oakes Test. However, the NZHC took exception to the wording of the injunction sought by the Council: ‘to restrain a person from committing a breach of a bylaw or an offence against the Local Government Act’. The NZHC considered that this went too far, because it not only sought to restrain present breaches caused by the actual, existing protest, but also sought to prohibit any future protest. It could be argued that if, in future, the protestors put up a simple poster in the square in question without prior permission, they would not only breach the Local Government Act, but would also find themselves in contempt of court. The NZHC ruled that such an injunction, prohibiting future protests, did not meet the minimal impairment standards (third limb of the Oakes Test) and therefore did not amount to a justified limit in terms of Oakes.

Readers interested in reading the detailed, actual judgement are invited to click here.