UPDATE:
The Supreme Court gave the FSU leave to appeal on two grounds, with the hearing taking place on 22 February 2022. The court dismissed the appeal on both grounds, however the decision has important implications for freedom of expression. To read our brief, click here.
Summary
Mr Moncrief-Spittle and Dr Cumin appealed the High Court’s decision to refuse an application for judicial review of Regional Facilities Auckland Ltd (RFAL)’s cancellation of a venue hire agreement. The venue was to host speakers Lauren Southern and Stefan Molyneux in August 2018.
Background
RFAL is a Substantive Council Controlled Organisation (SCCO) wholly owned by Auckland Council but operated at arms length. It administers a number of public venues for hire, including the Bruce Mason Centre. RFAL’s objectives include supporting the vision of Auckland and it must give effect to Auckland’s Long Term Plan and the Council’s objectives and priorities (so far as they relate to RFAL).
On 18 June 2018, Axiomatic Ltd signed a contract with RFAL to host a speaking event at the Bruce Mason Centre on 3 August 2018. Tickets went on sale on 29 June and RFAL started receiving complaints from the public about the upcoming event. On 6 July, Auckland Peace Action issued a press release stating “if [Stefan Molyneux and Lauren Southern] come here, we will confront them on the streets. If they come, we will blockade entry to their speaking venue.” Later that day, RFAL cancelled the contract because of health and safety concerns. Mayor Phil Goff also published a series of Tweets early that day claiming that he had decided to cancel the event because of the speakers’ views.
His Honour Jagose J in the High Court dismissed the claim for judicial review. He ruled the decision was not reviewable, the public interest was not engaged, the applicants were not representing the public but were on “something of a crusade”, and the applicants did not have standing to claim judicial review. Therefore the cancellation decision was lawful. He awarded costs to the Council.
The applicants appealed the decision to the Court of Appeal.
The Case
Reviewability
The Court of Appeal overturned the High Court’s decision that RFAL was not acting as the Council’s agent when it entered into the contract for hire. They ruled that RFAL “stands in the shoes of the Auckland Council” when it administers its venues and should be seen as a public body.
Not all decisions of public bodies are judicially reviewable. For example, purely commercial decisions that do not have a public interest element (as opposed to being just interesting to the public) are not reviewable. However, the Court of Appeal found that RFAL is not a purely commercial body. Providing venues for hire is part of its core statutory functions and is a public activity typically performed by local authorities who provide access to venues like town halls. The effects of cancelling these agreements extend beyond the contracting parties to members of the public – ticket holders, would-be ticket holders and prospective users of venues. This means decisions relating to these venue hire agreements are subject to judicial review.
Standing for judicial review
The Court of Appeal overturned the High Court finding that the applicants did not have standing and that the proceedings were not in the public interest. The Court ruled that this was clearly a matter of public interest and a plaintiff who has a genuine interest in having a matter of public interest considered will have standing unless the claim is frivolous, vexatious or untenable (which was not the case here).
New Zealand Bill of Rights Act 1990
The Court ruled the function of providing venues is protected both at common law and under the New Zealand Bill of Rights Act 1990 (BORA). The decision impacted the right to freedom of expression and the right to freedom of assembly. The Court found the decision did not engage the right to freedom of thought (because the speakers’ views were available online and the decision did not prevent people from forming opinions on those views), or the right to freedom of association (because there was no common organisational aim).
BORA allows for justifiable limitations to rights.
Section 5 of BORA requires decision-makers in New Zealand to assess whether a limitation on BORA rights, including freedom of expression, is reasonable. The Court found that this would depend on the nature of the decision and the circumstances in which it is made. In this case, health and safety concerns posed by the protestors could be a justifiable limit.
The applicant’s argued that the decision was an example of the “heckler’s veto”, where a peaceful speaking event is cancelled out of fear of the reactions of an oppositional group. The Court recognised the existence of the heckler’s veto but refused to rule that, in New Zealand, such an outcome was “necessarily perverse”. The Court found that Axiomatic failed at the time of their booking to provide RFAL with key information about the speakers, the controversial nature of the event and the security protocols they had applied during the Australian leg of the tour (for example, the venue location was not released to ticket holders until 24 hours before the event). RFAL was found to not have followed their own health and safety procedures but did seek advice from an internal security advisor about the level of protest and the difficulties in managing a safe evacuation if required, and did ultimately comply with its obligations under health and safety legislation.
The Court ruled that the decision to cancel was not inevitable but that it was not irrational or unreasonable in the circumstances.
Result
The appeal was dismissed because the Court found that the decision to cancel was not unreasonable. However, the appellants succeeded in proving they had standing to bring the claim, that the claim concerned a matter of public interest, that RFAL’s venue hire agreements were subject to judicial review, and that the heckler’s veto applies in New Zealand (although it will be subject to justifiable limitations on rights). The Court also reduced the costs awarded in the High Court by 70% to take account of the public interest nature of the claim.
Franks Ogilvie acted as the solicitors on record for the Appellants.
To read the press release of the Free Speech Coalition on this judgment, please click here.
Mr Moncrief-Spittle and Dr Cumin applied for leave to appeal the decision to the Supreme Court (see Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138)
