Court of Appeal Q and A

Free Speech Coalition Court of Appeal Q and A


What did the High Court Decide? 

There were two main live issues at play in our application to the High Court.

  • Whether the Court had the power to judicially review the Regional Facilities Auckland (RFA) decision to cancel the hiring licence.
  • Whether there are any valid grounds for the court to intervene on.

On the first issue, the Court decided it did not have the power to review the decision.

The judge decided that there was no governmental element exercised by RFA because there was no “public power” decision to cancel the license. This is despite the fact that Regional Facilities Auckland is owned solely by Auckland City Council. The court did not take into account then necessary “important public consequences” of the decision as laid out in previous authorities.

The court also thought that Auckland Council had sufficiently “outsourced” its legal obligations as a local government body to a council-controlled organisation insulating RFA from any scope of judicial review.

Further, the Court thought that the applicants, Dr David Cumin and Mr Moncrief-Spittle did not have standing to bring the review proceedings.

The second issue was not addressed in the judgement because it had not held it had no standing to review the decision in the first issue.

What are the grounds for the appeal?

On the matter of the RFA decision being amenable to review, we submit:

  • That there was an inherent publicness to the decision of RFA to cancel the licensing agreement. We hold that the court erred in ruling that Regional Facilities Auckland Ltd (RFAL) was a wholly private entity owned by Auckland Council and had no direct relation to the Council’s obligations to the public.        
  • The High Court did not properly apply principles of reviewability. It failed to account for the decision-making powers of RFA has having an element of publicness or the important public consequences of the decision.
  • Auckland Council did not sufficiently separate itself from responsibilities it owes as a public body by allowing its responsibilities of providing a public platform to citizens to be facilitated by a trust and that trust’s company.
  • The High Court erred in holding that the applicants had no standing in bringing the claim against RFA to court. This runs counter to recent relaxations within the law of judicial review. Additionally, the applicants represent the wider community which have public interest in the decisions of RFA.
  • The High Court erred in concluding that the applicants had no standing to bring the review under the Bill of Rights Act because RFA was not ‘governmental in nature.’

On the matter of substantial issue on free speech, we hold that:

  • RFAL violated its duties to uphold the free speech rights of the speakers and the listeners by revoking the speakers license.
  • The censorious nature of the “thugs veto” is still a question the courts need to answer for. If we do not appeal, this sends a clear message to groups like ‘Auckland Peace Action’ that they can successfully bully officials into cancelling events on grounds of ‘health and safety’.

Why are you dropping Mayor Phil Goff from the proceedings? 

Initially the Free Speech Coalition raised money for an interim injunction preventing Region Facilities Auckland from cancelling the licensing agreement based on Mr Goff’s public statements on Radio New Zealand and Twitter that he was making the decision not to let the speakers speak in public venues. We kept the review ground of unlawful intervention by Mr Goff while we still believed that he may have placed influence on Auckland Council in the decision.

Given the evidence presented by Auckland Council in the High Court we concluded that Mayor Goff had misled New Zealand in taking credit for the cancelation as an easy grab of political credit. While we find this detestable, there is not sensible reason to continue suit against him.

What is the necessary prerequisite of public power?

Judicial review is the legal process by which an applicant is able to review the legality of the decision of a public body. Throughout the laws development and after the establishment of state-owned enterprises (SOEs) the courts created the necessary prerequisite that the decision had to have some element of public power.

Usually this takes the form of a statute conferring the ability to make decisions, but not always.

This is because there are some decisions made by public bodies that are “private” in nature which courts do not review. A common example of this is wholly commercial matters made by some government organisations. In the absence of dishonesty, bad faith or corruption, the courts are reluctant to look at such decision.

Regional Facilities Auckland Ltd was not set up as a commercial entity and it has public duties it must abide by; one of which is facilitating the expression of ideas.

Were there legitimate public health and safety concerns?

There were threats made by Auckland Peace Action to protest the event and given the location of the Bruce Mason Centre, there may have been issue in how to efficiently cater to both the protesters and the event goers. However, the event license was cancelled before Regional Facilities Auckland received the necessary safety plans Axiomatic (the event hosts) where to provide, nor was there proper consultation with the police on how best to manage the event.

While there was a genuine concern for health and safety, there were no reasonable steps to mitigate them.

What if you lose in the Court of Appeal as well?

We are prepared to go to the Supreme Court if necessary.