Council-controlled organisations must facilitate the right to freedom of expression

Council-controlled organisations must facilitate the right to freedom of expression, according to Dentons Kensington Swan senior associate Jeremy Bell-Connell and associate Stephanie Jones.

The two lawyers, who are part of the firm’s public law and litigation team, examined a recent judgment made by the Court of Appeal to uphold a decision made by Regional Facilities Auckland Ltd (RFAL) to cancel an event hosting two controversial “alt right” speakers. In doing so, the Court held that a council-controlled organisation (CCO) is under an obligation to facilitate the right to freedom of expression when it hires out a venue for a paid event.

The two appellants were Mr Moncrief-Spittle, who purchased a ticket for the event and was disappointed at its cancellation, and Mr Cumin, an Auckland ratepayer who was concerned that his community’s future use of council facilities could be affected by threats from those wanting to disrupt planned events. They argued that RFAL was under a public law obligation to facilitate the right to freedom of expression and that the decision to cancel the event on public safety grounds was unjustified.

What was the controversy?

In June 2018, a promoter contacted Auckland Live (one of RFAL’s divisions) to hire the Bruce Mason Centre in Auckland for two speakers in early August 2018. When more information was sought about the event, the promoter advised that the speakers were Stefan Molyneux and Lauren Southern, describing them as “a renowned philosopher and author” and “a documentary filmmaker and best-selling author,” respectively. However, both are well known online for espousing white nationalism and various associated conspiracy theories; Mr Molyneux in particular has been banned from a range of online platforms (including Twitter and YouTube) for violating their hate speech policies, and counts among his fans the Christchurch terrorist. Previous speaking engagements in Australia prior to their arrival in New Zealand, reportedly featured the sale of merchandise emblazoned with slogans like ”It’s OK to be white” and “Feminism is cancer.”

The RFAL hire agreement requires promoters to provide a written health and safety plan for the event and the venue that addresses all hazards to RFAL’s reasonable satisfaction. However, no mention was made of the controversial nature of the speakers or the fact that in Australia, steps had been taken to avoid public protests.

It was not until RFAL started to receive complaints from the public that it began to appreciate the tenor of the event it had agreed to host. A press release issued by the organisation Auckland Peace Action advised RFAL that if the event went ahead, Auckland Peace Action members would confront Mr Molyneux and Ms Southern and prevent them from entering the venue. Ultimately, RFAL made the decision to cancel the event on health and safety grounds.

Was the cancellation reviewable?

In order for RFAL’s cancellation of the event to be impugned, the appellants had to show that RFAL’s decision was reviewable. This could be established only if RFAL had been exercising a public power in cancelling the event. It has long been held that the reviewability of a decision depends on the nature of the decision itself rather than the nature (public or otherwise) of the decision-maker.

The High Court decision, which was subject to appeal, had concluded that RFAL was not exercising a public power and that the decision was therefore not reviewable. The Court of Appeal disagreed, finding that in relation to the assets it manages on behalf of the Council (including the Bruce Mason Centre), RFAL was standing in the shoes of the Council and acting as its agent. The Court held that RFAL’s statutory function of providing venues for live performances engages the right to freedom of expression. Society, the Court affirmed, places a high value on freedom of expression, and RFAL has the power to control public assets that are used for many forms of expression. The decision to cancel would directly affect the BORA rights of members of the public who wished to attend the event. The decision was not an ordinary commercial one which the courts would generally decline to scrutinise except in limited circumstances; it was, in substance, public. It was therefore reviewable both on the usual public law principles and subject to section 3(b) of BORA. 

Was the cancellation an unreasonable limit on the BORA rights engaged?

Having decided that the case engaged the BORA, the Court had to undertake the balancing exercise in section 5. That section permits a right guaranteed by BORA to be limited or infringed upon to the extent that doing so can be “demonstrably justified in a free and democratic society.”

The Court held that the cancellation was a justified limitation on the appellants’ BORA-affirmed rights to freedom of expression and freedom of peaceful assembly. The countervailing circumstances upon which the Court relied were:

1. the contractual arrangements on which RFAL operates, including its contractual entitlement to cancel the event
2. the fact that the promoter gave no indication that security was likely to be an issue when it made the booking
3. the fact that the RFAL personnel involved were experienced in the management of venues and had an internal security adviser
4. the fact that the level of protest escalated significantly during the first week of ticket sales and was expected to continue to do so

In reaching this conclusion, the Court allowed the CCO (in our words) a margin of appreciation. The Court accepted that the decision to cancel was not inevitable and another decision-maker in like circumstances may have made a different decision, particularly if they had understood the nature of the event from the outset. However, in the circumstances, it could not be said that the decision was not a rational and reasonable response.

Dentons Kensington Swan’s view: councils beware

Despite first appearances, and the Court finding against the appellants, the decision is a strong affirmation of the importance of the right to freedom of expression in New Zealand. On the facts of this case, though, there is no doubt that the Court of Appeal’s decision to uphold the cancellation was the right one.

The most significant impact of the decision will be felt by councils and other local government-affiliated organisations, including CCOs. As always, these entities need to be mindful of the fact that the courts will look at the nature of the decision under review rather than the nature of the decision-maker. In addition, the judgment suggests that CCOs will have to work harder in the future to convince the courts that their decisions – particularly those that engage BORA freedoms in any capacity – are purely commercial and not susceptible to judicial review.