Pages tagged "Moncreif-Spittle"
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SC 57/2021 Moncrief-Spittle v Regional Facilities Auckland Ltd
The Supreme Court heard the appeal from the Court of Appeal’s judgment last week 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. -
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:
- 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;
- in a terse reversal of the lower court’s incomprehensible ruling that we were not bringing a case of public interest and importance;
- 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;
- in statements about the importance of free speech and obligations not to assert health and safety fears without proper foundation;
- 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:
- 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;
- 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;
- 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.
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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.
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