SC 57/2021 Moncrief-Spittle v Regional Facilities Auckland Ltd

The Supreme Court heard the appeal from the Court of Appeal’s judgment on Monday 21 and Tuesday 22 February 2022.

Jack Hodder QC advanced our case at common law, arguing that before a public body can cancel a venue hire agreement in the face of the threat of a heckler’s veto, it needs to have cogent and informed evidence following proper investigation and consultation. That submission relied upon recent and leading authorities on free speech from Australia, Canada, the European Union, the United Kingdom and the United States.

A number of the judges were concerned about health and safety, and the need to protect the bodily integrity of those involved with an event.  We argued that health and safety obligations have a ‘reasonableness’ element and must be read in light of free speech rights.  Our lawyers accepted that bodily integrity is an important consideration but argued that it must be balanced against free speech and cannot justify limiting free speech unless the risk is very serious.

Professor Philip Joseph argued our case under the New Zealand Bill of Rights Act 1990. He told the Court they were required to make their own assessment of whether the limits placed on free speech were justified.  He said the Court could not rely on the assessment by RFAL because it had not undertaken the required balancing exercise.  He said that RFAL had opted for the “nuclear option” by cancelling the venue hire agreement.

The Council argued that the High Court was correct to find that RFAL was not subject to judicial review or the New Zealand Bill of Rights Act.  There were few questions on this topic from the Court.  But the Chief Justice was interested in how RFAL’s commercial decision-making might be affected.  Mr Hodder explained that there would be no impact on the ability to, for example, charge fees because that would not involve controlling the content of speech.

The Chief Justice also asked what impact remote participation might have on free speech.  The Council suggested that society may no longer need to tolerate a level of disorder in order to facilitate free speech. We strongly rejected that suggestion and emphasised the importance of in-person communication for dialogue and protest.