Pages tagged "Lauren Southern"

  • 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.

  • Appellants Submissions Moncrief-Spittle NZSC

    For the Appellant's Submissions see – Here


  • Professor Philip Joseph Joins Free Speech Court Case

    2 June 2021


    Professor Philip Joseph Joins Free Speech Court Case

    Because the issues are so important, Professor Philip Joseph, the author of New Zealand’s leading textbook on Constitutional and Administrative Law, has volunteered to support the Free Speech Union’s lead barrister Jack Hodder QC before the Supreme Court in its appeal relating to the banning of controversial Canadian speakers from Auckland Council-owned venues. The Free Speech Union is heartened by this public-spirited move.

    Union spokesman, Dr David Cumin, says “We think the issues should be straightforward. The effects of the Thug’s Veto are clear. Our Court of Appeal acknowledged that the Supreme Courts of the US and Canada have grappled with the question - how far to let threats of violence override free speech rights. New Zealand’s Supreme Court judges should look forward to an opportunity to discuss this area of law and how to clarify it with an eminent specialist constitutional lawyer, as well as Mr Hodder.”

    On Monday the Free Speech Union announced its application for leave to appeal to the Supreme Court, prompted in part by the recent events of a New Zealand feminist group being banned from multiple councils because what they might say on a proposed law before Parliament could cause offence and therefore pose ‘health and safety' threats to officials.

  • Breaking: Court of Appeal improves on the High Court, but still gives-in to 'Thug’s veto’

    After eight months of waiting, today we received the decision from the Court of Appeal on our court action against Auckland Council that started the Free Speech Coalition back in 2018 (a special podcast episode summarising the decision is here).

    You’ll remember that it began when the Mayor claimed on radio that he had banned two controversial Canadian speakers from using public meeting venues (Council controlled) because they were “divisive”.

    When we got the Council evidence it said that the Mayor did not have power to make that decision because Auckland Council venues were controlled by a separate Trust, and he had not made the decision. The evidence said that instead the hall bookings were cancelled because of protestor threats raising health and safety fears.

    We continued the case because it was important for Mayors to be told that they can’t discriminate on political grounds in using their powers to control ratepayer assets, and that Councils can’t hide from their obligations to protect freedom of speech by appointing other bodies to manage those assets. But we were mainly concerned to get a clear message from the courts that public bodies would have a high threshold to cross before they allowed the “thugs’ veto” to trump freedom of speech.

    We won:

    1. on the point that Bill of Rights Act obligations (including freedom of speech) apply to councils and their subsidiaries that control public venues. In other words, Councils can’t hide behind “independent” managers – the Court of Appeal overruled the High Court on this point;
    2. in a terse reversal of the lower court’s incomprehensible ruling that we were not bringing a case of public interest and importance;
    3. in a similarly brusque dismissal of the lower court’s decision that our representative plaintiffs were on a personal crusade and did not have standing to bring the case;
    4. in statements about the importance of free speech and obligations not to assert health and safety fears without proper foundation;
    5. in getting the costs award against us cut by 70%, because of the public interest nature of our case. This is an unusually large discount. We could say it suggests we have been upheld 70% and lost as to 30% but that is not necessarily the way these things are calculated.

    We lost:

    1. on our key argument that the cancellation decision should have been made after much more investigation of ways to diminish the protestor threats to health and safety. The Court of Appeal says the speaking tour organisers were not upfront enough with the venue managers about the protest risks. We think this is a shame. In other contexts victim blaming is called out, but not this time;
    2. in that the Court fails to give a clear steer on just how important it is to ensure that Thugs’ Veto does not win. The judges have weaved around the issue, saying we do not have US-style law, and citing similar Canadian evasions where thugs have defeated free speech. They say our judges will have to develop law that suits New Zealand, but don’t take the opportunity to do so;
    3. in that the Court treated our withdrawal of our lawsuit against the Mayor as if it made his false claim immaterial. We hoped that the Court would mention the context of the case, that it came about when the Mayor claimed publicly that he’d banned the speakers from Council venues.  As it turned out he was lying but the Court just didn’t go on to say directly that if his claim had been true, it would have been unlawful. We think that conclusion underlies the decision, but it would have been better to have it stated clearly.

    On balance, we are satisfied to have secured a much-improved judgement. But the murkier parts of the decision, and our experience before the High Court show how vulnerable human rights can be in New Zealand.

    The court displayed none of the passionate commitment to defending fundamental rights it has shown in other ‘constitutional’ cases. Section 5 of our Bill of Rights gives a wide scope for courts to find that rights are limited according to the political inclinations of judges from time to time. Here was a perfect opportunity for the bench to stand on the side of free speech - but they've ducked for cover.

    For example, while lawyers will read this decision and tell councils that they must be careful to give due regard to freedom of expression in hiring venues, and that politicians can't stop people they don't like from using public facilities, the Court chose not to state it that simply. The rejection of Mr Goff's behaviour should been clear, not just implied.

    We don’t really have a “bill of rights” so much as a “bill of reasonable rights” - and what is “reasonable” might be anyone’s guess. How section 5 is used when the thug’s veto is next on trial may show whether it is just a cloak for leaving unpopular or minority views unprotected.

    Our work from here: stepping up the fight for free speech

    If this case shows anything it is that we must make free speech fashionable again. Anticipating this decision, behind the scenes we've been putting huge hours into the next step of defending, and improving, free speech in New Zealand. We can't wait to tell you about it very soon.

    Thank you for your support.

  • Why the Free Speech Union?

    Two youtubers from Canada were banned by Phil Goff from Council-owned venues because people who disagreed with them threatened to protest.

    A former Reserve Bank Governor, a man who in 2005 came within a couple of percent of becoming Prime Minister was not allowed to attend an event at Massey University, because he might say something which offended its policy on the Treaty of Waitangi. According to the University’s Vice Chancellor, his words could affect the health and safety of campus staff, and despite no credible threats being made, or the Police even being consulted, the event was deemed be too risky for the University.

    The same university, barred a women’s rights and feminist group from speaking on its Wellington campus, because of the group’s views that men cannot become women amount to assault on trans people.

    At another university, a lecturer was fired for publishing research that did not toe the politically correct interpretation of the Treaty of Waitangi, despite being Maori herself. She was told that one of reasons she had to go was because she had made public statements in support of free speech.

    I could go on.

    75 years ago, servicemen and women from across the Anglosphere put their lives on the line to defend democracy, including the right to express your views and opinions in the public square however unorthodox without fear of punishment. Today, scarcely a week passes without another attack being launched on free speech. That's why we’ve set up the Free Speech Union, a mass membership organisation that stands up for the speech rights that its members.

    If someone at work writes to your boss to complain about something you've said, we'll write to them too and remind them of the importance of intellectual tolerance and viewpoint diversity. If a bunch of self-righteous bullies pick on you, we'll pick on them. If someone launches an online petition calling for you to be sacked, we'll launch a counter petition.

    Long term, one of the benefits of full membership will be access to legal assistance. If we think you've got good grounds for a lawsuit, we want to help you fight it. If it looks as though it's going to be expensive, we'll help you crowdfund. The enemies of free speech hunt in packs. Its defenders need to band together, too. Whatever it takes, we'll defend your right to speak freely without fear of being punished.

    The list of people who've been no platformed, prevented from speaking in public by self-appointed morality cops is growing. Even gay rights campaigner, Dr Stephen Rainbow, has been attacked by the thought police. He made a comment on a facebook post cautioning friends not to sign a Green Party petition relating to gay conversion theory. He said: “be careful...there’s some elements of the trans agenda being sneakily promoted through this campaign” but that was enough to be singled out by a colleague who republished the post on Twitter, asked to be moved to a new team immediately, and encouraged twitter users to write to Auckland Transport’s HR manager about the so-called ‘transphobia’ so that Dr Rainbow would be fired from his role.

    Instead of telling media the comment had nothing to do with Dr Rainbow’s work, Auckland Transport, told Stuff that it was looking into the situation and launched an investigation into whether Dr Rainbow’s political views are consistent with the organisation’s values.

    It's time to end this digital McCarthyism. Free speech isn't some luxury we can afford to live without. It's the foundational freedom on which all the others depend.

    Because it’s not just the online witch hunts which that are vicious – our institutions need to be reminded of our traditions too.

    More and more, what democratically elected city and district councillors are allowed to say to the public and the media is bring curtailed. We know of councillors being sanctioned under new ethical codes of conduct simply for speaking to the media without prior approval from the mayor or council officials.  How can local democracy work, if opposition politicians can be silenced by their peers?

    Despite the proud on-campus traditions of protest, our university students at one institution have been told that they were not permitted to publish posters critical of the CCP. That university even had campus security follow the group to remove any material they posted.

    More and more we are seeing our enemies goad employers to sack or sanction those who express views they don’t like. That’s why we’ve picked this union model. One of the wins of the trade union movement in the early twentieth century was the idea that at the end of the working day, you are no longer a servant for the person you work for. When you say something in your private life that has nothing to do with your job, your boss shouldn’t be able to check you. That’s the principle we need to re-establish.

    One of the advantages of being a registered trade union is that it illegal for your employer to discriminate or even try to persuade you not to join or support us. We have the legal right to conduct union work and organise in workplaces and even when we are targeted by the thought police, they won’t be able to kick us out. No one is safe from these witchfinder generals, which is why mavericks and dissenters of all stripes will be welcomed in the Free Speech Union.

    And being a union doesn’t preclude us from working for the wider cause – you don’t need to be in paid employment to join the union and we are open too to those who are self-employed, work for the government, elected officials, or retired.

    Labour’s left-wing unions claim they stand up for the little guy. But when it comes to standing up for the views or the right to express views that don’t find favour on Lambton Quay or Ponsonby, they’re missing in action. The once-proud traditions of free speech within the old labour union movement is all but gone.

    The Free Speech Union is the only union that doesn’t care what the political elite think. We don’t care if you’re politically left or right, religious or secular, what genitalia you have, what you identify as, or what else you think. What we care about is your right to think it, say it, or hear from others to judge for yourself and demand tolerance. We want New Zealand to be a country of diverse opinions that are respected and challenged so we can create a better place to live for ourselves, our children, and their children.

    We’re building a fantastic team of volunteers, academics, lawyers, and civil leaders who get it. But to win this fight we need Free Speech Union organisers to build chapters within industries and employers. You can join the Free Speech Union if you are already a member of another union and enjoy the benefits of both. 

    You can also support the Free Speech Union and our mission by donating, if you’d rather not join. Stopping other people from being de-platformed or attacked for views impacts on all of our rights, not just the victim.

    As a wise man once said, "I may disagree profoundly with what you have to say, but I will defend to the death your right to say it." It doesn't matter if somebody somewhere finds it offensive, no one has the right not to be offended. As George Orwell said, "If liberty means anything at all, it means the right to tell people what they do not want to hear."

    Human beings can't flourish outside of free society, which means they can't flourish in the absence of free speech. Free speech is how knowledge is developed and shared at great universities, civil institutions, and in the media. Or at least it should be, with theories about the nature of reality constantly being tested and refined in open inquiry and discussion.

    Robust debate appealing to reason and evidence, not blindly accepting the prevailing orthodoxy, is the best way to resolve disagreements about the most important questions facing mankind without descending to violence or intimidation.

    Free speech is also the most effective bulwark against the abuse of power by our would-be masters with history demonstrating again and again that an assault on people's right to add their views in the public square is an ominous precursor to the removal of other freedoms.

    We can't continue to appease the enemies of free speech. As Churchill said, "An appeaser is someone who keeps feeding the crocodile in the hope that it will eat him last." Many good men and women died fighting for our right to speak our minds and exchange ideas without being persecuted by the enforcers of intellectual conformity and moral dogma. This is our precious inheritance and we owe it to them as well as our children to come to its defence. Join me in the Free Speech Union and together we can defeat the authoritarianism and intolerance that is once again threatening to destroy our liberty.

    This project is based on a similar effort recently launched in the United Kingdom by the journalist Toby Young. We hope to be as successful as the UK Free Speech Union growing a mass movement to successfully defend this most essential right.

    I hope you’ll join the New Zealand branch of the Free Speech Union – not to endorse the views of anyone we may need to defend, but to defend against other people deciding what you can say, hear, and think.

  • Dr David Cumin's Analysis of the Regional Facilities Auckland Litigation

    It took about one year but we got our two days in court. The judge heard our case against Auckland Council and they put up their best defence, as they should. Now we wait for a decision, expected by the end of the year.

    The arguments were submitted in writing before they were presented to the judge in person, but they were able to be challenged and refined through questions from His Honour. While it was difficult to hear the words of my affidavit selectively used and abused by lawyers for Auckland Council, I understand their job is to give their client the best defence. And that they did, just as our lawyers presented our case in a convincing manner.

    There is little doubt in my mind that we have the stronger position. But I’m not the judge.

    What I hadn’t appreciated well enough before sitting in the back of the packed room, despite reading the submissions from both sides, was the importance of the decision that needs to be made about whether Regional Facilities Auckland (RFA) - the Council Controlled Organisation that controls the large venues in Auckland - is a purely commercial operation.

    The reason this is such an important point is that the NZ Bill of Rights is only applicable to branches of government or acts in the performance of a public function.

    I would not have been interested enough to put my name to the case if this was a purely commercial dispute. While it would disappointing for a private business to prevent a speaking event on the basis of activist pressure; it is unacceptable (and illegal) for a government body to trade away our fundamental freedoms in the face of vague threats. Especially when, as we heard in court, the evidence is that there was no consultation with the Police and not even a bona fide discussion with security experts advising the promoters.

    The Council lawyers put forward arguments trying to distance RFA from the council and, in doing so, highlighted the sad reality that this court case was brought urgently on the basis of a lie told by the Mayor of Auckland.

    Mr Goff had publicly and explicitly stated that he was responsible for cancelling the talk, apparently thinking this was some sort of moral imperative and suggesting that anyone else with views he disagrees with strongly will be barred from public facilities if he so chooses.

    Thankfully, I suppose, the Mayor was lying.

    However, even without a direct edict from the Mayor’s office - from where RFA staff were told that Mr Goff had “itchy Twitter fingers” in the lead-up to the decision - it is somewhat absurd to even suggest that a Council Controlled Organisation that Auckland ratepayers subsidise more than $24 million annually and which was established by council for the purposes of serving the public is completely private.

    Though, the law is strict and not always reflective of what us common people might think. If, for some technical reason, the judge determines that RFA has no public function and this was a purely commercial decision, then the case will go no further. It will only pose more questions - like why are ratepayers bankrolling the facilities, why was the Mayor’s office emailing a private company engaging in a private transaction, and does this mean all other Council Controlled Organisations (like Watercare, Auckland Transport, etc) are also exempt from adhering to our Bill of Rights.

    It would seem to my lay mind that RFA is clearly acting in a public function and there happens to also be a commercial element to their decision-making. After all, it would be irresponsible for such expensive assets to not consider commercial realities entirely. Should the judge agree that RFA is serving the public, the next question becomes how much care was taken by RFA staff to ensure the rights and freedoms enshrined in our Bill of Rights were considered in the decision to cancel the event - particularly freedom of thought, expression, and peaceful assembly. 

    This also seems manifestly straightforward to me. It seems clear that a “thugs veto” was upheld in this case and that is a precedent that we must not allow to stand.

    Nevertheless, Council lawyers tried to convince the judge that consultation with the NZ Police wasn’t necessary even though RFA did send them an email (after the decision to cancel was made) and there was evidence presented about particularities that make the Bruce Mason Centre unsafe in the face of any sort of protest. The latter admission is quite extraordinary and, if we cannot truly protect a venue from protesters, raises uncomfortable questions about the appropriateness of ratepayer-funded venues and the power of those who would want to disrupt an event.

    While I don’t begrudge Auckland Council’s counsel putting forward their case as best they could, the real travesty of the proceedings as far as I am concerned was the “intervention” of the Human Rights Commission.

    The first function of the Human Rights Commission, according to the legislation is was created under, is to advocate and promote for human rights in NZ society. However, their submission to this court case did the opposite. The HRC lawyers suggested that freedom to form an opinion is only applicable in private – that freedom of thought does not extend to being allowed to adopt thoughts or beliefs at a public event. They also tried to argue that the “heckler’s veto” should be allowable under our laws and generally seemed to support the decision to ban the speakers on the basis that their speech was “hateful and dangerous” and they made a comparison between the proposed event at an RFA facility and activities in a gang headquarters.

    Whatever the judge decides, a precedent will be set that speaks one way or another to the importance of free expression in our country (or the public nature of organisations that we heavily subsidise). But the Human Rights Commission has once again shown that they are more than happy to caveat those freedoms, regardless.

    The 2017 submission of the HRC to the United Nations, in which they urged the UN to pressure the New Zealand government to introduce laws against “disharmonious speech” is another clear example of the agenda that the HRC is pursuing. 

    I’d like to think that their wish for “hate speech” laws is based on good intention. Unfortunately, the intention doesn’t matter when the laws are in place and so easily abused by those in power or those who wish to exercise a “thug’s veto”. We have seen this overseas, for example, in countries like the UK where “hate speech” laws have done nothing to decrease racism or discrimination but are responsible for good people being taken to jail by Police.

    The RFA case was brought under urgency. When it was clear the Mayor was lying to us all, the urgency subsided and, after a year of waiting, we now only have a few more months until we hear the decision. While the wheels of our justice system have been turning, we have seen similar incidents occur - at Massey University, for example - and this underscores the importance of our case.

    It is unfortunate but events like those at Massey University, the threatened arrest of a street preacher, and the continuing agenda driven by the HRC show that, whatever the decision is in this case, there will still be work to do to ensure we all actually have the freedoms outlined in our legislation and they aren’t undermined or eroded. That’s why the Free Speech Coalition was formed and continues. And it has been able to do the good work because of your generous support. I hope we will not be needed in the future but am committed to fighting until that dream becomes a reality.


    Dr David Cumin

    Dr Cumin is an Auckland-based academic with research interests in medical informatics and simulation in healthcare, and an active member of the Jewish community in New Zealand.


  • Coalition raising funds for legal action against Massey VC

    Free Speech Coalition raising funds for legal action against Massey University Vice-Chancellor

    9 AUGUST 2018

    The Free Speech Coalition has resolved that, contingent on raising sufficient funds, it will be issuing legal proceedings against the Vice-Chancellor of Massey University.

    Free Speech Coalition member Melissa Derby says, “Massey University’s action in barring Don Brash raises very similar legal and ethical issues as Auckland Council’s ban on Lauren Southern and Stefan Molyneux from Council-owned venues. In both bases, an authority has used threats of disruptive protest as an excuse to shut down contentious speech. This is the thug’s veto in action.”

    “Vice-Chancellor Jan Thomas’ ‘security concerns’ appear to be a ruse to obscure her real motivation – her personal distaste for Don Brash’s opposition to Maori wards on councils, a view she describes as ‘dangerously close to hate speech’, in addition to his support of the speech rights of the recent Canadian visitors.”

    “This is a disgraceful breach of the University’s own charter and mission to "promote free and rational inquiry", and sets a dangerously low bar for ‘hate speech’.”

    “At the same time, we continue to engage Auckland Council in the High Court for their capitulation to the thugs. We face significant legal costs, but are advised that the marginal cost of bringing Massey into our case will be lower than for someone launching independent action.”

    Dr David Cumin, another member of the Free Speech Coalition, says, With Massey University refusing to back down on barring Don Brash from speaking on campus, it is clear that free speech issues are not going away. Many supporters of the cause have contacted us to urge the Free Speech Coalition to become permanent. We have now resolved to incorporate as a permanent group.

    “New Zealanders are welcome to join and donate to the coalition at

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