On April 1, a bylaw came into effect in Tauranga banning begging and rough sleeping near shops in three of the city's public shopping districts. It followed months of debate. Struggling retailers cried out for help to put a stop to the aggressive begging they said was damaging their businesses. The bylaw was seen as a test case for other towns around New Zealand with similar issues. In opposition stood many people who worked with the homeless and believed the bylaw was a punitive attempt to sweep the problems under the rug without dealing with the root cause. Now a legal challenge may force a change to the controversial bylaw.
Controversial bans on begging and rough sleeping in parts of Tauranga may be watered down to avoid a costly court challenge.
But an MP says Tauranga City Council should stick to its guns.
Tomorrowthe council will debate changing its five-month-old bylaw banning begging and rough sleeping within five metres of entrances to shops and eateries in the Tauranga, Mount Maunganui and Greerton CBDs.
The council passed the bans by a slim majority in November against the advice of legal staff, who warned it would be unenforceable and may go against the Bill of Rights Act.
The debate attracted support from retailers who blamed beggars for flagging sales and protests led by social service groups.
Before the bans came into effect on April 1, the Tauranga Housing Advocacy Trust started working on a legal challenge.
The trust filed an application for a judicial review in June.
Warned it might become mired in a costly legal battle that it may not be able to win, the council started negotiations with the trust that led to proposed amendments to the bylaw.
Under new wording to be discussed on Tuesday, the bans would only apply to begging that caused nuisance, intimidation, harassment, distress or alarm, and rough sleeping that obstructed the entrance to a shop.
If passed, the amendments would first go out for community consultation.
Shem Otieno, a law graduate and trustee of the Tauranga Housing Advocacy Trust, said the trust would accept the amendments.
"That will be enough to avoid the court proceedings."
He said the changes would allow for "passive begging".
Begging was and should be protected by the freedom of expression in the Bill of Rights Act, he said.
The council's role was to regulate, not prohibit, and it needed to look at more "holistic" ways of dealing with problems relating to begging and rough sleeping.
Tauranga MP Simon Bridges said the council "should stand strong and call the trust's bluff".
"Retail shoppers and most Tauranga people are fed up with being harassed and with feeling unsafe when out and about in our retail centres.
Supporting the amendment would be "another kick in the guts for the CBD, Mount and Greerton" and further drive shoppers to malls.
The cost of litigation was worth it to defend the town centres, he said.
Tauranga Mayor Greg Brownless, who voted for the current bylaw and is seeking re-election, said anyone unhappy with the amendment should talk to the trust.
"If we had not had a challenge we would have been happy to hold a firm line."
The council had legal advice that the bylaw in its current form was not defensible.
"We could spend a lot of money and not get anywhere."
He said the Government should make legislation to help councils around New Zealand deal with issues relating to begging, and Bridges - a former prosecutor - should lead the charge.
Brownless was frustrated by the actions of the lawyers and the lack of help from police to enforce the bylaw.
"It's about time a whole lot of people were held to account ... so it's not just the council trying to do our best to make sure the businesses in the central city can make a living, not just the beggars."
Inspector Clifford Paxton, Area Commander for the Western Bay of Plenty, said the police did not enforce the bylaw.
He said calls about begging would be referred to the council unless criminal behaviour was involved, in which case, police should be called and would attend.
Councillor John Robson, one of the councillors who opposed the bans and a mayoral candidate, said any reduction in beggar numbers was down to winter, not the bylaw.
He said the council was warned the bans would not be defensible or enforceable but the majority supported the bans anyway.
He still felt a bylaw was not the right way to deal with the issues and rejected the argument it was about "sending a signal".
"We spent a lot of time, money and energy sending signals that, when tested, failed."
The council was supposed to deliver outcomes, not signals, he said.
Tommy Wilson, chief executive of Greerton-based Te Tuinga Whanau Support Services Trust, supported the bylaw from the beginning.
He said the amendment would mean the bylaw had "lost a few teeth".
"However, in my opinion, the awareness raised through the threat of a bylaw has been brilliant.
"Greerton is very close to being begging-free now and hopefully the downtown CBD will follow suit.
"It's all about who deserves our help and how willing are they to want to help themselves."
Councillor who staked his job on bylaw says he's still running
Last year Tauranga Councillor Terry Molloy staked his job on the success of the begging bylaw he spearheaded in response to retailers' complaints.
But even with the bylaw on shaky legal ground, the re-election seeking councillor said he felt "no obligation" to quit.
Molloy said the bylaw - in combination with other measures and efforts - was making a difference and had been a success.
He planned to vote for the proposed amendments to the bans on Tuesday, despite calling similar wording "toothless" last year.
He said there were already laws against intimidation and harassment. Adding a ban on "nuisance" begging to the bylaw, however, set a "much lower bar", he said.
"It would allow the business owner to call the council if there is someone sitting blocking their entrance, that's a person making a nuisance and we can get staff to get them to move on."
WHAT'S IN THE WORDING?
No person shall beg in a public place within 5 metres of a public entrance to retail premises within defined areas in the CBD, Greerton and Mount Maunganui.
No person shall rough sleep within 5 metres of a retail premises within defined areas in the CBD, Greerton and Mount Maunganui.
No person shall beg within 5 metres of the entrance to a retail premises within defined areas of CBD, Greerton and Mount Maunganui in a manner that is likely to cause a nuisance, intimidation, harassment, alarm or distress to any reasonable person.
No person shall rough sleep within 5 meters of a retail premises within defined areas of CBD, Greerton and Mount Maunganui in such a way as to cause an obstruction of a public way or of an entrance to a retail premises.