Summary
While the FSU’s appeal did not succeed this case made significant progress in the protection of the rights to freedom of expression. In particular that :
- A council owned facility was not able to hide behind its functional framework to protect itself from having to consider Bill of Rights obligations;
- The USA jurisprudence on heckler’s veto can be relevant to NZ and that there are limits on the ability to restrict freedom of expression in order to manage disruptive third parties;
- While health and safety are to be considered, a “heavy weighting” must be given the freedom of expression; and
- There may be a positive duty to protect the right to freedom of expression in relation to public venues like community halls.
Background
The Free Speech Union challenged the decision of Regional Facilities Auckland Ltd (RFAL) to not allow a presentation by “alt right” commentators, Stefan Molyneux and Lauren Southern, at the Bruce Mason Centre. RFAL managed the venue on behalf of the Auckland Council. RFAL stated they had cancelled the booking by Molyneux and Southern’s promoter due to health and safety concerns arising from anticipated protests against the event.
The challenge was on the basis of two key aspects:
1. In making the decision, RFAL had acted irrationally, perversely and arbitrarily. Particularly that before determining there was an unacceptable health and safety risk RFAL did not obtain and have proper regard to relevant information, including that of Police; and
2. RFAL had failed to act consistently with the Bill of Rights, specifically the right to freedom of expression in s14.
The challenge was dismissed by the High Court who determined RFAL’s decision was not amenable to judicial review and the BORA did not apply. FSU’s challenge to the Court of Appeal was partially successful. The Court agreed that RFAL was amenable to judicial review – that they were acting as a public body and BORA applied. However, the Court dismissed FSU’s argument that the decision to cancel was unreasonable.
FSU appealed to the Supreme Court.
Decision
FSU’s appeal to the Supreme Court was unanimously dismissed. There were two main grounds of review.
Bill of Rights
The Court of Appeal found that cancellation of the event was a reasonable limit on the rights to freedom of expression and of peaceful assembly. The Court agreed that RFAL’s security concerns were substantiated.
Does BORA apply to RFAL?
The first question the Supreme Court decided was whether BORA applied to RFAL. Applying case law, the Court held it was a performance of a function or power which was conferred by law and is public. It was the last element, whether it is public that was subject to substantive argument. RFAL argued the decision was commercial in nature – the cancellation of a commercial contract. The Supreme Court agreed it was public in nature – RFAL is overseen by the Council, does not exist for private profit and acted within the functions that the Council would have done. Additionally, the Bruce Mason Centre was established with public funds.
What rights were engaged?
The Court then determined which rights were engaged. FSU argued RFAL’s decision breached the rights to freedom of thought, freedom of association and freedom from discrimination. The Court of Appeal did not accept the rights to freedom of thought and freedom of association were engaged, and given their earlier conclusions (that BORA was not engaged) did not consider whether it had been limited. The Supreme Court agreed that the right to freedom of thought and freedom of association were not directly engaged – an argument that the Human Rights Commission also made.
What is the nature of the duty to protect this right?
The Supreme Court then addressed the nature of the right to freedom of expression and whether it imposed any positive duties on RFAL for the Bruce Mason Centre. RFAL argued that it was only a negative right and only imposed a duty to refrain from interfering with expression. It did not have to facilitate expression. The Court stated that is was sufficient for the purposes of the case to acknowledge there was some authority for the view that the right to freedom of expression is a primarily negative obligation. However, there is also jurisprudence, particularly from other jurisdictions that in some occasions the right may impose a positive duty.
Importantly the Court stated, “there will be situations in which the right to freedom of expression imposes positive obligations. It may be, for example, that positive obligations could arise in relation to the hiring out of a community hall which is free for all comers.”
It is also noted that the Supreme Court found that the availability of an alternative venue (which the promoter booked after the Bruce Mason cancellation) meant there was no limitation of the right to freedom of expression. Accordingly, the Supreme Court determined the right to freedom of expression was engaged and had been limited by RFAL’s decision.
How should a reasonable “limit” be determined?
The Supreme Court then turned to whether this was a reasonable limit for RFAL to apply. FSU and RFAL disagreed on the test that should be applied – whether it was for the Court to determine or whether the Court should assess the decision made by RFAL on the basis that it was within a reasonable range of decisions it could have made. The Court determined that the appropriate test is the Court must be satisfied that the decision was a reasonable limit. In a practical sense, this meant the Court expected to see evidence the decision-maker had identified and weighed the right, and gave consideration to whether the reasons to cancel (health and safety) were sufficient to outweigh the right.
Was the cancellation decision a reasonable limitation?
FSU argued that RFAL imposed the most severe limitation on the right as the event was cancelled. However, RFAL argued that there was not a range of options available to them.
The Court determined that based on the factual findings in this case, health and safety issues could be relied upon, but freedom of expression should be given a heavy weighting.
Key facts, such as an inability to take other options (such as not publicising the venue until later on), the costs of the tickets and the potential costs to RFAL, meant the Court determined it was a reasonable limitation.
The role of Heckler’s veto
FSU submitted that those who had threatened protest, particularly violence, prevented those targeted from exercising their right to freedom of expression. This veto, arising in the USA, argues that if the opponents can raise enough concerns they can get authority to silence any speaker they do not approve of. The Supreme Court agreed with the Court of Appeal that the questions that would arise in the application of the veto in the USA would be addressed in considering the reasonableness of a limit on free speech (s5 of BORA). However the Court stated that American jurisprudence on the heckler’s veto is “a helpful reminder that free speech is not always easy and that fact should not diminish its protection”. Additionally, that “while there may be health and safety or other security related concerns arising from the exercise of free speech, that can sometimes obscure the reality that the resultant challenge to speech is not content neutral”.
The Court also stated, “we agree with the appellants that there are limits on the ability to restrict freedom of expression in order to manage the disruptive actions of third parties.”
Amenable to judicial review
This was the second ground for review. For a decision to be challenged by judicial review, the decision maker’s functions must be part of government, or the source of the power being exercised must be ‘governmental’ in nature, or the exercise of power has public law consequences. The Supreme Court agreed with the Court of Appeal that after considering the purpose of the statutes applicable to RFAL that “RFAL stood in the shoes of Auckland Council”. Furthermore, that the decision to cancel the event involved the exercise of a power by RFAL.
The reasons for the Court’s determination that it was amenable were similar to those determining the applicability of BORA (as discussed above).
Was the decision to cancel unreasonable?
The Supreme Court referred to its determination that the limit on the right to freedom of expression was reasonable, therefore making it largely redundant for it to re-examine the arguments under this ground. However, the Court did address FSU’s argument there was a failure of process – that in making the decision RFAL failed to properly engage relevant evidence. The Court agreed with FSU that RFAL was required to give freedom of expressiona heavy weighting. It referred to the decision of Whitmore v Palmerston North City Council, where the group Speak up for Women had their event at the local library cancelled. The Supreme Court agreed with the decision based on the evidence presented of the process the library engaged.
A similar approach was applied to RFAL’s process. It found the decision maker had turned their mind to freedom of expression, and they were entitled to take in to account the particular health and safety features of the venue. However, it found “while the process followed (and should) have been better, we are satisfied that in the circumstances the course adopted did not lead to an unreasonable decision.”
Result
Both grounds of appeal were dismissed. The Court reserved its decision as to costs.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
