Digest No. 1867
Main Provisions
What is “freedom camping”?
The term “freedom camp” means to camp (other than at a camping ground) within one kilometre of a formed road, a vehicle accessible area, or the mean low-water spring line of any sea or harbour, or within 500 metres of a “Great Walks Track”, using one or more of the following:
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a tent or other temporary structure;
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a car, campervan, housetruck, or other motor vehicle (Part 5, Clause 5, definitions of “freedom camp”, “camping ground” and “Great Walks Track”).
Comment
“The Bill does not target back country campers, or motorists who need to pull over to the side of the road to rest”
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Freedom camping in a local authority area is permitted unless restricted or prohibited
The Bill provides that freedom camping is permitted in a local authority area unless:
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it is restricted or prohibited in accordance with a bylaw made under Clause 11; or
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it is restricted or prohibited under any other enactment.
The Bill sets out the substantive and process requirements for a bylaw made for the purposes of restricting or prohibiting freedom camping and provides that such a bylaw must be treated as a bylaw made under the Local Government Act 2002 for the purposes of Section 150 (“A local authority may prescribe fees or charges payable for a certificate, authority, approval, permit, or consent from, or inspection by, the local authority in respect of a matter provided for”) and Sections 158 to 160A of that Act (Section 158: Review of bylaws; Section 159: Further reviews of bylaws every 10 years; Section 160: Procedure for and nature of review; Section 160A: Bylaw not reviewed within specified time frame revoked) (Part 2, Subpart 1, Clauses 10-12).
Freedom camping on Conservation land is permitted unless restricted or prohibited
The Bill provides that freedom camping is permitted on conservation land unless:
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it is restricted or prohibited in accordance with a sign posted under Clause 14 of the Bill; or
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it is restricted or prohibited in accordance with a freedom camping notice made under Clause 15 of the Bill; or
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it is restricted or prohibited under a Conservation Act or any other enactment.
The Bill authorises the Director-General of Conservation to restrict or prohibit freedom camping on conservation land by notice or by erecting one or more signs which must describe, whether by words or symbols or both that:
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freedom camping is restricted on the land and the restrictions that apply; or
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freedom camping is prohibited on the land.
The Bill sets out the technical requirements for such notices and signs (Part 2, Subpart 2, Clauses 13-17).
Strict liability offences
The Bill provides for a number of strict liability offences which are, however, subject to certain defences (see below). They are called strict liability offences because in prosecuting them, the prosecution does not need to prove that the defendant intentionally or recklessly committed the offence or knew that the offence occurred in, or in relation to, a local authority area or conservation land.
Any person commits a strict liability offence (penalty: maximum fine of $10,000) under the Bill if they:
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freedom camp in a local authority area in breach of any prohibition or restriction in a bylaw that applies to the area; or
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while freedom camping in a local authority area, interferes with or damages the area, its flora or fauna, or any structure in the area or deposits waste onto the area (other than into a waste receptacle); or
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makes preparations to freedom camp in a local authority area in breach of any prohibition or restriction in a bylaw; or
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deposits waste, generated while freedom camping, in or on a local authority area other than into a waste receptacle; or
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fails or refuses to leave a local authority area when required to do so by an enforcement officer; or
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freedom camps on conservation land within two hundred metres of a sign erected on the land under the Bill that prohibits freedom camping or in breach of any restrictions set out on the sign; or
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freedom camps on conservation land in breach of any prohibition or restriction in a freedom camping notice that applies to the land; or
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while freedom camping on conservation land, interferes with or damages the land, its flora or fauna, or any structure on the land or deposits waste onto the land (other than into a waste receptacle); or
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makes preparations to freedom camp on conservation land within two hundred metres of a sign erected on the land under the Bill that prohibits freedom camping, in breach of any restrictions set out on the sign; or
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deposits waste, generated while freedom camping, in or on conservation land other than into a waste receptacle; or
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fails or refuses to leave conservation land when required to do so by an enforcement officer.
The term “waste receptacle” is defined as “a receptacle or facility that is provided by a local authority or the Department of Conservation for the purposes of disposing of waste (for example, a rubbish bin, public toilet, or bulk waste disposal unit)” (Part 3, Subpart 1, Clause 18(1) and (3), and Clause 19; Clause 22(1) (“Penalties”)).
Offences which are not strict liability offences
The Bill provides that any person commits an offence (penalty: maximum fine of $5,000) under the Bill who, while an enforcement officer is carrying out his or her functions and duties under this Bill:
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intentionally prevents the officer from carrying out those functions and duties; or
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obstructs or impedes the officer; or
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assaults, threatens, or intimidates the officer; or
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uses language that is abusive or threatening to the officer; or
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behaves in a threatening manner towards the officer.
The Bill also provides that any person commits an offence who refuses to give information when required to do so by an enforcement officer under the Bill or gives false or misleading information and there is a general offence of inciting any other person to do any act referred to above (Part 3, Subpart 1, Clause 18(2) and Clause 22(1) (“Penalties”)).
Defences to offences
The Bill provides that it is a defence to an offence if the court concerned is satisfied that:
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the act or omission giving rise to the offence was due to an action or event beyond the control of the defendant; and
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the action or event could not reasonably have been foreseen or prevented by the defendant; and
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the effects of the act or omission were adequately remedied or mitigated by the defendant after the offence occurred.
The Bill also provides for two defences to an offence (other than offence against Clauses 18(1)(b)(ii), (d), (h)(ii), or (j) – all relating to depositing waste other than in a receptacle) if the court
is satisfied that:
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the act or omission giving rise to the offence was necessary to save or protect life or health, prevent injury, prevent serious damage to property or avoid actual or likely damage to the environment; and
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the conduct of the defendant was reasonable in the circumstances; and
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the effects of the act or omission were adequately remedied or mitigated by the defendant after the offence occurred.
It is also a defence to an offence (excluding the same offences dealing with waste) if the court is satisfied that:
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the act giving rise to the offence was necessary in the circumstances; and
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the conduct of the defendant was reasonable in the circumstances; and
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the effects of the act were adequately remedied or mitigated by the defendant after the offence occurred.
The Bill provides that the defences available under Section 133A(3) and (4) of the Land Transport Act 1998 as if the offence were a stationary vehicle within the meaning of Section 2(1) of that Act in respect of a proceeding commenced by an enforcement officer issuing an infringement notice under Clause 27 and in relation to which the person to whom the notice was issued is a person described in Clause 26(1)(b) or (c). The defences available under the Bill do not limit any other defences that may be available. The Bill provides that where a person commits an offence, in addition to, or instead of, the penalty for the offence, the person may be ordered to pay the costs incurred by the local authority or Department of Conservation in repairing any damage done to the local authority area or the conservation land concerned as a result of the offence (Part 3, Subpart 1, Clauses 21-24).
Proceedings
The Bill provides that proceedings for an offence may be commenced by laying an information under the Summary Proceedings Act 1957. In respect of an infringement offence, proceedings may be commenced either by an enforcement officer issuing an infringement notice or by an enforcement officer laying an information under the Summary Proceedings Act 1957. Proceedings for an offence may be taken against the following persons:
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the person who allegedly committed the offence;
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the person who, at the time of the alleged offence, was registered as the owner, or one of the owners, of the vehicle in the register kept under Section 18 of the Transport (Vehicle and Driver Registration and Licensing) Act 1986 or was the registered person in respect of the vehicle under Part 17 of the Land Transport Act 1998, if a vehicle was used in the commission of the offence;
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the person who, at the time of the alleged offence, was lawfully entitled to possession of the vehicle (whether or not jointly with any other person), if a vehicle was used in the commission of the offence.
The Bill provides for when and how an enforcement officer may issue an infringement notice and what particulars an infringement notice must include, the particulars that must be included in a reminder notice (which may be served on a person following the issuing of an infringement notice) and for a local authority to retain the infringement fees resulting from infringement notices issued by enforcement officers appointed by the local authority and for the infringement fees resulting from infringement notices issued by enforcement officers appointed by the Director-General to be paid into a Crown bank account (Part 3, Subpart 2, Clauses 25-29).
Enforcement officers
The Bill authorises local authorities and the Director-General to appoint enforcement officers for the purposes of the Act and the requirements as to the warranting of the officers and sets out their authority and powers including their powers to require certain information, require a person who he or she believes on reasonable grounds is committing or has committed an offence to leave the local authority area or conservation land concerned, and to seize property used in the commission of an offence such as a boat, caravan, or motor vehicle and provisions for the retrieval and disposal of such property. Enforcement officers acting in good faith and without negligence are given immunity from any liability for loss or damage to property arising directly or indirectly from its seizing and impounding (Part 3, Subpart 3, Clauses 30-39; Schedule 2 to the Bill (“Prescribed forms”)).
Regulations
Regulations may be made:
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prescribing infringement fees for infringement offences (being an amount not exceeding $1,000);
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prescribing infringement notice forms;
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prescribing reminder notice forms;
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prescribing seizure and impounding notices.
Power is given to the Governor-General, by Order in Council, to specify a track as a Great Walks Track and a list of Great Walks Tracks is set out (Part 3, Subpart 4, Clauses 40-43; Schedule 1 to the Bill (Great Walks Tracks) ).
Existing bylaws become infringement offences under the Bill
The Bill identifies existing bylaws from around the country and deems them to be infringement offences under the Bill. The infringement fee is either that fee already specified in the particular bylaw or, where no fee is specified, $200 (Part 3, Subpart 5, Clauses 44-48; Part 3, Subpart 1, Clause 23 (“Infringement fees”); Schedule 3 to the Bill (“Bylaws breach of which are deemed infringement offences”)).
