Censorship of conservatives in New Zealand upheld

If the current madness of modern life permits, cast your mind back to the middle of last year. Two “right-wing provocateurs” from Canada (ship name “Stefren”) wanted to bring their grift to New Zealand, and to Auckland’s Bruce Mason Theatre in particular. Some people got mad about this prospect and threatened to physically block public access to the event. The organisation that runs the Bruce Mason Theatre – Regional Facilities Auckland Ltd – then cancelled Stefren’s booking on health and safety grounds. Whereupon some other people got mad at this alleged curtailment of free speech, whipped up a bunch of money, and went off to court to challenge the cancellation decision.

At the time, I said this about the prospect of such a case:

At the risk of lapsing into legalese, the council’s actions when hiring out its venues to speakers are captured by both the NZ Bill of Rights Act 1990 and the Human Rights Act 1993. Those enactments prevent the council from making venue hiring decisions (including cancellations) that “unjustifiably limit” freedom of expression, or that discriminate on the basis of political opinion. Auckland Live – the council’s company that manages the venues – can’t then contract out of those legal obligations.

Consequently, Mayor Goff’s decision (put into practice by Auckland Live) most likely will be found to be unlawful unless there is some sort of “demonstrably justified” reason for preventing [Stefren] from speaking at the council’s venue.

Well, you did read my internet hot-take for free, and so you got what you paid for. Not only did I get the name of the organisation that runs the Bruce Mason Theatre wrong, but it later turned out that the Mayor Phil Goff had nothing at all to do with the cancellation decision. Rather, he publicly jumped on board Regional Facilities Auckland Ltd’s independently-made decision in an effort to burnish his liberal, pro-diversity credentials.

And now the High Court has pretty much trashed my legal analysis of the issue as well. In a judgment released yesterday, it found that Regional Facilities Auckland Ltd didn’t have any public law duty, whether under the NZ Bill of Rights Act 1990 or otherwise, to consider freedom of expression when cancelling Stefren’s talk. That’s because, the Court said, Regional Facilities Auckland Ltd hadn’t made a “public” decision when it pulled out of its contract to hire out the Bruce Mason Theatre. As a separate body from Auckland Council that has the job of managing the region’s various facilities and making them available for use, it simply made a business call that holding this event represented too big of a legal risk for it. Which it was free to do irrespective of the resulting consequences for expressive rights.

In other words, to lapse into legalese again, Regional Facilities Auckland Ltd’s hiring out of the venue was neither susceptible to judicial review nor subject to the NZ Bill of Rights Act 1990. Whatever the moral rights or wrongs of the matter, it’s none of the court’s business. Meaning that the court didn’t examine whether the claimed health and safety concerns really justified cancellation, because Regional Facilities Auckland Ltd didn’t have to justify its action at all.

Now, better and brighter administrative law minds than mine have expressed some disquiet about this conclusion. But unless and until there’s an appeal, it stands.

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