New Zealand's highest court has handed down a decision dealing with the extent of the right to freedom of expression and its limits.⁽¹⁾ The case involved an application for judicial review of a decision by a local council-owned entity. The decision was to cancel a contract for the hire of a venue for an event involving addresses by two controversial "alt-right" speakers.

 

Facts

In June 2018, an Australian promoter, Axiomatic, contacted the operational division of Regional Facilities Auckland Limited (RFAL) about hiring a venue for two speakers in August 2018. They advised that the speakers were Stefan Molyneux and Lauren Southern. RFAL provided a standard form venue hire agreement, which required Axiomatic to provide a health and safety plan at least 10 days prior to the event. Tickets went on sale at the end of June, publicising the date and venue of the event. Shortly after, RFAL began to receive complaints about the event.

At the time of booking, Axiomatic had not indicated that there would be any security issues. It had recently run similar events in Australia at which special security arrangements had been required, including not advising ticket holders of the venue until 24 hours before each event. On 5 July 2018, a representative of Auckland Peace Action asked for the event to be cancelled and the following day it announced that it intended to confront the speakers and blockade entry to the event. This group had caused problems at a previous event. The venue hired was in a busy street surrounded by local businesses and restaurants, meaning that crowd and traffic control to separate protestors from patrons and maintaining public access to the local businesses would be difficult and costly. RFAL considered there to be a high risk to health and safety if an evacuation was required. On 6 July 2018, RFAL decided to cancel the venue hire as a result of health and safety concerns.

RFAL is the trustee of a charitable trust that owns Auckland Council's regional facilities. The trust's purpose is to support the vision of Auckland to attract world-class events and promote the social, economic, environmental and cultural wellbeing of its communities by engaging them in arts, culture, heritage, leisure and entertainment activities.⁽²⁾ Auckland Council is the shareholder of RFAL and is required by legislation⁽³⁾ to monitor RFAL's performance to evaluate the achievement of its objectives and the overall aims of the council. RFAL was also obliged by legislation to give effect to certain aspects of the council's long-term plan.⁽⁴⁾

Two individuals sought judicial review of the decision to cancel. One had bought a ticket to the event; the other was a ratepayer member of the Auckland Jewish community, concerned that the future use of council facilities by his community could be threatened by those wanting to disrupt such events. They alleged that the decision to cancel the contract:

• was irrational;
• had failed to take account of relevant information; and
• was inconsistent with the New Zealand Bill of Rights Act 1990 (Bill of Rights), including the right to freedom of expression.

New Zealand's Bill of Rights contains the rights and freedoms affirmed by law in New Zealand. It applies to government and people performing public functions and provides that the rights and freedoms affirmed within it can only be subject to such reasonable limits as can be demonstrably justified in a free and democratic society.⁽⁵⁾

 

Lower courts

The High Court held that RFAL had not exercised a public power in cancelling the contract for venue hire and so it was not amenable to judicial review nor subject to the Bill of Rights. It also held that the applicants had no standing. The Court of Appeal held that the decision was amenable to review, but the decision to cancel was reasonable, both in an administrative law sense and under the Bill of Rights.

 

Supreme Court

The Supreme Court considered that the appeal raised the following issues:

• Did the Bill of Rights apply?
• If the Bill of Rights was applicable, was the decision to cancel a breach of protected rights?
• Was RFAL's decision to cancel the contract amenable to judicial review and, if so, what were the available grounds of review?
• If the decision was reviewable, was the decision to cancel unreasonable and how should freedom of expression be taken into
  account in that assessment?

The Supreme Court held, in a judgment delivered by Ellen France J, that the Bill of Rights did apply. The Bill of Rights provides that it applies only to acts done by the legislative, executive or judicial branches of government, or any person or body in the performance of a public function, power or duty conferred on that person pursuant to law.⁽⁶⁾ The key issue was whether the act of cancelling the contract was "public". The starting point was that the application of the Bill of Rights should be given a generous interpretation as it is concerned with human rights and fundamental freedoms.⁽⁷⁾

The Court examined the list of indicia set out in Ransfield v Radio Network Ltd⁽⁸⁾ in determining whether an act was "public", which provides guidance on where the line is to be drawn but is not treated as determinative.⁽⁹⁾ It noted that, while there may be little to distinguish the test for application of the Bill of Rights and the test for amenability of judicial review ultimately, separate analysis was required for each as they involved different procedures and potential remedies.⁽¹⁰⁾

In determining that the Bill of Rights applied, the Court held that RFAL effectively stood in the shoes of the Council in providing a service that:

• was for the social wellbeing of the community;
• had received some public funding;
• did not exist for private profit; and
• was subject to the governance of the council.⁽¹¹⁾

The Court then turned to a consideration of the rights engaged by the decision to cancel. Its analysis focused on the right to freedom of expression. It held that there was support for the view that the focus of the right was negative (ie, a right to non-interference), but that positive obligations (ie, an obligation to facilitate expression) may arise depending on the context.⁽¹²⁾

The right to freedom of expression in the Bill of Rights includes the right to receive information that might in some circumstances impose a positive duty to impart information. The Court relied on the International Covenant of Civil and Political Rights to affirm the view that positive steps may be required to give effect to certain rights.⁽¹³⁾ The Court held that the cancellation of the event had curtailed the ticket holder's right to receive information and so was a limit on the right to freedom of expression. As a result, the cancellation decision would only be lawful if it were reasonable under the Bill of Rights.

The Court of Appeal had held that RFAL's decision was consistent with the Bill of Rights as it was a rational and reasonable response to the security risk posed by the event. The appellants argued on appeal that the mere rationality test was not appropriate and the Court ought to have applied a correctness standard. RFAL disagreed and said that it was not for the Court to reach its own conclusion but to assess the lawfulness of the decision made.

The Supreme Court held that the application of the Bill of Rights to decisions creates a substantive constraint on the possible outcomes that a decision-maker can reach, rather than merely imposing a relevant mandatory consideration.⁽¹⁴⁾ That required the decision-maker to consider whether cancellation of the event was a reasonable limit to the right of free expression. The role of the Court is to assess whether the decision was a reasonable limit, although the expertise of the decision-maker is relevant and some respect should be given to the conclusion reached.⁽¹⁵⁾ In assessing the compatibility of an individual decision with rights, the Court held that an administrative approach which is more flexible than the structured approach to proportionality in R v Oakes⁽¹⁶⁾ was required.

The Court addressed the submissions on the "heckler's veto" – a situation in which those wishing to exercise free speech rights are prevented from doing so by actual or threatened protests. It referred to a string of US cases dealing with the issue.⁽¹⁷⁾ However, the Supreme Court cautioned against using jurisprudence developed in the very different context of the United States. In New Zealand, the proper focus is on the reasonableness of any limit on free speech under section 5 of the Bill of Rights.⁽¹⁸⁾ Ultimately the Court held that the cancellation of the event was a reasonable limit on free speech given the health and safety concerns involved.⁽¹⁹⁾

In relation to the third issue, the Supreme Court held that the decision was amenable to judicial review as it had the necessary substantial public interest component and that whether the decision was rational or reasonable was an available ground of review. Having held that the decision was a reasonable limit on the right, it also held the decision was reasonable in an administrative law sense. In relation to the process aspect of this ground of review, it held that RFAL had been required to give freedom of expression a heavy weighting. Although it held that the process adopted by RFAL should have been better, that conclusion had not led to an unreasonable decision.⁽²⁰⁾

 

Comment

This appeal would have been pursued to obtain guidance on what the right to freedom of expression requires as there was no prospect of obtaining practical relief – the event had long before been abandoned.

It is doubtful that the appellants obtained the vindication that they were seeking but that appears, in large part, to be down to the particular facts involved – Axiomatic could have:

• held the event elsewhere;
• been more upfront with RFAL about the security risk posed; and
• proactively engaged with the management of the expected health and safety risks.

The examination of the positive versus negative aspects of the right might have been more complex if a publicly owned venue had been the last resort for the event (ie, all privately held suitable venues had declined) and an extensive health and safety plan had been provided in advance. Nevertheless, the decision is significant in establishing both the relevance of interference with the rights conferred by the Bill of Rights on decisions of this kind and the elevated consideration by the courts of the original decision-maker's conclusion about what constitutes a reasonable limit on the protected right.

For further information on this topic please contact Felicity Monteiro at Wilson Harle by telephone (+64 9 915 5700) or email ([email protected]).

 

Endnotes

⁽¹⁾ Moncrieff-Spittle v Regional Facilities Auckland [2022] NZSC 138.
⁽²⁾ Clause 9(3) of the Local Government (Tamaki Makaurau Reorganisation) Establishment of Council-controlled Organisations Order 2010.
⁽³⁾ Section 65 of the Local Government Act 2009.
⁽⁴⁾ Local Government (Auckland Council) Act 2009.
⁽⁵⁾ Section 5 of the Bill of Rights Act 1990.
⁽⁶⁾ Section 3 of the Bill of Rights Act 1990.
⁽⁷⁾ At [38].
⁽⁸⁾ [2005] 1 NZLR 233 (HC).
⁽⁹⁾ At [48].
⁽¹⁰⁾ At [49].
⁽¹¹⁾ At [51]-[60].
⁽¹²⁾ At [67]-[69].
⁽¹³⁾ At [69]-[71].
⁽¹⁴⁾ At [82].
⁽¹⁵⁾ At [84]-[86].
⁽¹⁶⁾ R v Oakes [1986] 1 SCR 103.
⁽¹⁷⁾ Edwards v South Carolina 372 US 229 (1963); Cox v Louisiana 379 US 536 (1965); Ovadal v City of Madison 416 F 3d 531.
⁽¹⁸⁾ At [99].
⁽¹⁹⁾ At [103].
⁽²⁰⁾ At [131].