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 otherpeople 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. Which brings me to the real point of this piece.
You see, the decision to establish Regional Facilities Auckland Ltd as an arms-length organisation separate from Auckland Council was taken back in 2009 in the midst of setting up the Auckland Supercity. That reform project primarily was guided by the Act Party’s Rodney Hide. And a big part of his vision for the reforms was to increase the efficiency of local government in the region. Rather than having lots of local politicians interfering in the running of things, there would be large “Council Controlled Organisations” that (as the NZ Herald’s Bernard Orsman put it at the time) were “designed to take control from politicians and the public to get things done in a business-like manner.” Such a model, Rodney Hide and Steven Joyce enthused, would help ensure “efficient and cost-effective service delivery.”
You might recognise this model from the 1980s mania for “corporatisation”, with its underlying assumption that the market will do a better job than can democratically-chosen representatives. If we could just get our governing bodies to be more like private businesses, then everyone will be better off. After all, who could have a problem with running things in a way that gives superior outcomes for less money?
Unfortunately, as people like Auckland Professor of Law Janet McLean have warned, it turns out that this model comes at a cost. Because if you say that public services and facilities should be operated in a business-like fashion, then you really can’t complain when they operate like … a business. And if some business considers that a particular customer represents too much of an operational risk for it to contract with, then that’s up to the business to decide. And if that means there’s then nowhere for controversial speakers like Stefren to publicly speak, then the market has spoken. After all, who could have a problem with running things in a way that gives superior outcomes for less money?
Now, why am I revisiting all of this background? Well, let’s take a look at who was behind the legal challenge to Regional Facilities Auckland Ltd’s cancellation decision. While the case was brought in the name of two individuals in an (ultimately vain, as it turns out) effort to demonstrate sufficient “standing”, it was funded by the “Free Speech Coalition”. And prominent amongst that body’s members are ex-Act Party members Don Brash and Stephen Franks, as well as vocal champion of local government efficiency Jordan Williams.
Writing in 1793, the Swiss-French journalist Jacques Mallet du Pan summed up the fate of many of the leaders of the French Revolution in the reign of terror this way;“Like Saturn, the Revolution devours its children.” It turns out that the pro-market revolution in societal governance also has its victims – those who think that a local body’s public spaces should be operated in a way that pays due attention to the citizenry’s expressive rights. Because according to the High Court, you can’t have organisations that are both designed to take control from politicians and the public to get things done in a business-like manner and also required to be respectful of individual speech rights when deciding who to contract with.
Or, to put it another way, the Free Speech Coalition has met the enemy and it is (some of) them.