Auckland City Council's bid to get a court injunction to stop the Boobs on Bikes parade has failed.
Handing down her decision at the Auckland District Court today, Judge Nicola Mathers said she wasn't satisfied that the parade breached the legal threshold of offensiveness.
The Bill of Rights was centre stage when the council went to the court yesterday seeking a court injunction to stop tomorrow's event.
The controversial parade, in its sixth year in Auckland, features bare-breasted women parading down Queen St on open-top cars and motorbikes in the build-up to organiser Steve Crow's - 18 Erotica Lifestyles Expo.
Council lawyer Willie Akel said the freedom of expression provided for the in the Bill of Rights was not absolute. The issue was one of proportionality.
"Political speech attracts most protection. Commercial-related speech in the middle. Pornography at the bottom," he said.
Mr Crow's lawyer, Jesse Soondram, said a bylaw used by the council to decline a permit for the parade amounted to "censorship" and breached the Bill of Rights.
"The parade, despite not having a permit, is entirely lawful and not in any breach of the laws of this country," Mr Soondram said.
In an unusual move for a court injunction, Judge Mathers allowed Mr Crow to give evidence in the witness box to background the event. Normally this would be done by way of an affidavit, but Mr Soondram said time restraints prevented this.
Mr Crow said the parade started in 2003 in response to a woman being arrested for bearing her breasts in public on Karangahape Rd, and the sexual discrimination issues it raised under the Bill of Rights.
He said the sixth parade was coming up in Auckland. He had held two parades in Christchurch and two in Palmerston North. A parade was planned for Wellington in November.
In cross-examination, Mr Akel challenged Mr Crow about the motives for the parade, suggesting the sole purpose was to promote the R18 Erotica Lifestyles Expo.
In an exchange with the council lawyer, Mr Crow claimed the parade only had a loose association with the expo and he had been turned by the council from handing out promotional material for the R18 event.
In his evidence, Mr Crow said the expo was rated R18 to stay within the law for the sale of sexually explicit material.
Said Mr Akel: "Boobs on Bikes has little to do with freedom of expression." It was simply advertising for Erotica.
Wellington Mayor Kerry Prendergast said through a spokeswoman that she was unaware a Boobs on Bikes parade was planned for the capital. "I'm not sure how it fits with our reputation for being the sophisticated arts and culture capital."
Willie Akel: You said [the parade would have] a loose association with Erotica. Is it not the case that in your application to the council you said the parade was also intended this year to promote the Erotica Expo?
Steve Crow: Correct.
Akel: When you say "loose association with Erotica", is it not the sole purpose of the parade at this stage is to promote Erotica?
Crow: No, and the council turned down my application to hand out anything that promotes the expo.
Akel: You said the exhibition was R18. Are you going to have on display any explicit sexual material?
Akel: That would be more than topless women?
Crow: A lot more.
Akel: Will there be access to material of women and men involved in sexually explicit acts?
Crow: There will be access to material showing explicitly sexual acts.