Free Speech Coalition
Further to my e-mail earlier in the week, at 10 am tomorrow the Moncrief-Spittle & Cumin v Regional Facilities Auckland Ltd & Ors will begin at the Auckland High Court before Justice Jagose. Right now, the legal team are doing their final preparation for the hearing.

Since that e-mail, we have received a lot of questions about the proceedings — so this note, a little longer than normal, sets out more of the detailed arguments.

First though, we want to thank you for getting us to this stage. Without your financial support, the Free Speech Coalition, and this challenge to Auckland Council and Phil Goff, would not have been possible.

From Interim Injunction to a Full Hearing

Our original grounds for urgent action were based on Mayor Goff claims on Twitter and radio that he had unilaterally decided to cancel the Lauren Southern and Stefan Molyneux event and ban the speakers from Council-owned venues.

As became clear once we had filed the proceedings, Mayor Goff’s claims were actually dishonest political grandstanding and we could not continue with an application for an interim injunction (reversing the decision to cancel the booking) within the time needed. That was because the Council pleaded that the Mayor’s public statements were wrong: what the real reason the event was cancelled rested on health and safety grounds.  Getting a Court to overturn that would require much more detailed examination and testing of evidence, which was not possible in the short timeframe. So the event remained cancelled.

Since then, Axiomatic Ltd (the event’s promotors) became insolvent and could no longer be one of the parties to the proceeding. Mr Malcolm Moncrief-Spittle (as a ticket holder to the event) and Dr David Cumin (as an Auckland ratepayer) are our plaintiffs.

The Council says health and safety is its trump card — we say a “thug’s veto” cannot be left to stand

It is the position of the Council’s subsidiary (Regional Facilities Auckland Ltd – RFAL) that health and safety concerns, caused by Auckland Peace Actions’ threats to disrupt the event, justified its actions.

In short, this will be a test case for the Court to explore the thug’s veto as a legitimate threat to our right to free speech.

As we saw with the subsequent banning of Don Brash at Massey University, concerns surrounding “health and safety” are becoming a common trump card for the purposes of censoring speakers.

Accordingly, our goals in the case are to:

  1. Prevent the “health and safety” claim from becoming a routine excuse for public bodies to abandon their duties in protecting freedom of speech and association. Where a threat exists, it must be genuine and unmanageable. Here RFAL had not even consulted the Police, or followed its own health and safety guidelines, when it cancelled the event.
  2. Become a precedent for Courts to use to criticise public bodies who abuse their powers on a partisan basis.  We want it to become known within officialdom that free speech (including freedom of association, and freedom to peacefully assemble, see below) must be carefully considered before health and safety is used as an excuse to ban events or speakers with politically unfashionable points of view.

Summary of our argument

We are asking the Court for a declaration that the cancellation of the license to hold the event was unlawful. This is a public interest proceeding; we are not seeking damages.

We are seeking a review of the decision under 3 grounds.

  1. The decision was “irrational, perverse and arbitrary”.
  2. RFAL failed to act in a manner consistent with the New Zealand Bill of Rights Act (NZBORA).
  3. The decision was illegal because of improper deference to known views of Mayor Goff.

Judicability

Our first hurdle is we need to establish that the decision is judicially reviewable. We argue that RFAL is a public body and therefore its decision are subject to judicial review. This is because RFAL is completely owned and operated by Regional Facilities Auckland (RFA), a Substantive Council Controlled Organisation, made for the purpose of managing Auckland Council’s venues. As such it has to act within the long-term plans and strategies of the Auckland City Council. It, therefore, cannot pretend to solely be a profit-seeking company while it has public duties to perform.

RFA’s relationship with the city council must be based on strong communication, meaning that it should not make decisions without receiving guidance on public interest. For these reasons, its decisions should be reviewable.

Irrationality

Our argument that the decision was poorly made rests on a number of factors. A few of them are:

  1. RFA did not follow its own protocol by waiting for its own security team to make a recommendation about health and safety threats.
  2. Official Information Act requests showed that the Police did not receive any threats in relation to the event.
  3. RFA’s claim that they had consulted with Police before cancelling the event appears to be untrue.
  4. RFA did not give the promoters of the event the agreed-upon time to produce a security and risk management plan.
  5. RFA’s decision enables the thug’s veto by caving to complaints about the speakers.

NZBORA

We argue that the decision violates several fundamental rights in the New Zealand Bill of Rights Act (NZBORA), including:

  1. freedom of thought, conscience and religion;
  2. freedom of expression;
  3. freedom of peaceful assembly;
  4. freedom of association; and
  5. freedom of discrimination.

Under NZBORA rights can be limited if demonstrably justified in a free and democratic society (section 5). We argue that this is not the case here. There is always the possibility for protest when politics are involved; that is in the very nature of politics. It is not justified to “cut and run” at every sign of protest. We believe that the Police and other security services were able to deal with risks to health and safety. We argue that cancelling an event must be a last resort after all other options are explored. 

Cancelling the event discriminates against any person that would have attended the event and violates their rights to appraise and discuss their views with the speakers and with each other.

RFA as a public body needed to prove that it was “alive” to NZBORA when it made the decision to cancel the event. It did not acknowledge NZBORA in its decision.

Mayor Goff

Mayor Goff claimed responsibility for the cancellation on Twitter and in the media.  While we do not know the level of the mayor’s involvement in the decision (if any) there is not lawful basic for Mayor Goff’s involvement. RFA should have operated independently of all political figures. One of the major points of public interest in this case is ensuring that no influential politicians like the Mayor of Auckland are allowed to determine what speech is acceptable.

Visit the Court to show your support

If you are in Auckland over the next few days, please pop-in to show support to our litigants. Your presence shows that the issues are ones that matter to New Zealanders and there are people wanting to protect our legal and philosophical inheritance from the protesting mob. Your presence in the courtroom will show that Malcolm and David are not alone in challenging censorship.

Again, this could not have happened without your support for free speech.

Thank you for making this effort possible.

signature_jordan.png
Jordan Williams
Free Speech Coalition
www.freespeechcoalition.nz