It’s a significant case – the fact that the Supreme Court agreed to hear the appeal confirms that – and I was looking forward to watching proceedings. In fact I was on the verge of heading into Wellington yesterday morning when I received an urgent email from the FSU saying that because of Covid restrictions, the case would be heard entirely by video link.
Even the lawyers are not physically present. The FSU urged that the hearing be live-streamed so that its supporters could watch remotely, but the Supreme Court judges wouldn’t have that. Instead it's a virtual hearing, conducted via the sterile medium of VMR (Virtual Meeting Rooms) software. Interested parties were told that a maximum of 100 participants could register in advance so that the court could send them a link.
I declined. I find it utterly absurd and slightly alarming that when New Zealanders are able to attend sports events, go to movies, eat in restaurants, drink in bars and travel on public transport, the nation’s highest court locks its doors in apparent terror of the pandemic. Whatever happened to transparent, accessible, open justice?
In its email yesterday, the FSU cited the disruption caused by the protest at Parliament as an additional factor in the court’s decision. But the fact that the judges issued their ruling on Friday, when the protest was well contained within the immediate parliamentary precinct (in fact still is), suggests Covid was uppermost in their thinking.
I suppose it's possible the judges' hand was forced by an over-cautious bureaucracy panicking at the Omicron outbreak, but there’s an important matter of principle here. As the FSU points out, any member of the public can normally walk into court and watch what’s going on. Only extreme circumstances would seem to justify suspension of that right, and you have to ask whether the almost negligible risk of infection from Covid meets that test. I mean, a Supreme Court hearing is hardly likely to be a super-spreader event.
There are other considerations too. I’m no lawyer, but I’ve sat through enough judicial proceedings to know that courtroom dynamics can be important. The way lawyers interact with the judges and with each other can have a bearing on the way the hearing plays out. Body language can tell you something.
It might seem an odd analogy, but I recall it being suggested at the inquiry into the Wahine sinking that if the ship had had open wings on its bridge, the captain would have been able to step outside and physically feel the brute force of the storm. But he was cocooned in a fully enclosed bridge and might not have fully appreciated what his ship was sailing into.
In the same way, it seems reasonable to suggest that it makes a difference when the participants in court proceedings are physically together in the same room – appropriately masked and distanced, of course – rather than forced to engage via the arid means of digital technology, even when the case is likely (as in this instance) to involve a lot of dry legal argument.
To put it another way, the quality of the judicial decision-making may be influenced by the circumstances in which the case is heard. Justice is ultimately a flesh and blood business, after all, and judges shouldn’t allow it to be dehumanised.
For those interested in the background of the hearing, the FSU issued the following media advisory note:
Supreme Court to hear appeal of Moncrieff-Spittle v Regional Facilities Auckland Ltd
21 February 2022
FOR IMMEDIATE RELEASE
Time: 2.15 pm Monday, 21 February and continuing Tuesday, 22 February
Location: Supreme Court of New Zealand
Background
This is the first case to come before our appellate courts of attempts to de-platform by resorting to the heckler’s veto. Backing our case, Professor Philip Joseph, the author of New Zealand’s leading textbook on Constitutional and Administrative Law, will appear with the Free Speech Union’s lead barrister, Jack Hodder QC.
The Free Speech Coalition (now Union) was born out of an effort to crowdfund for this legal fight after Mayor Phil Goff ostensibly ‘banned’ two controversial Canadian speakers, Lauren Southern and Stephen Molyneux, from speaking at a Council-owned venue.
What happened in the Courts previously?
Once we filed proceedings in the High Court, we found out that Goff had lied. The decision to cancel the event was actually made by Regional Facilities Auckland Ltd (RAFL) personnel only hours after receiving an email threat from Auckland Peace Action to blockade the event venue four weeks before the event was to take place. No investigation into the credibility of the threat or what measures might have been taken to manage it took place at any stage. The Court ruled that our plaintiffs were on a “personal crusade” and didn’t have standing to bring the case. The Court also held that the decision to cancel the event was not judicially reviewable because RFAL’s decision did not, in the Judge's opinion, involve an exercise of public power and the venues were technically held in trust.
To our relief, the Court of Appeal reversed the most disturbing parts of the High Court Judgement, holding that RFAL must uphold free speech rights as if it were the Council. It also held that our plaintiffs did have standing to bring the case and we were relieved by the appeal decision to cut the costs awarded against us by 70% because of the importance of the issues and public interest in our bringing the case.
That being so, the Court of Appeal ultimately found the decision to cancel the event to be a ‘justified limit’ on freedom of expression under section 5 of the New Zealand Bill of Rights Act. In holding that the decision to cancel the event was a justified limit on free expression, the Court of Appeal considered the purported failings of the event organisers (in particular the Court of Appeal was critical of the event organisers for not warning RFAL venue management of the possibility of law-breaking protest at the time of booking), the experience of RFAL personnel, the venue hire agreement and the protest noise over the preceding week. The Court of Appeal held that the “heckler’s veto” concept we put forward had a general application as part of the section 5 analysis but did not go on to analyse it or consider its implications under section 5 in any detail.
Why this further appeal?
The Court of Appeal judges stopped after describing the thug's veto problem as if solving it was not their job, instead treating it like some sort of abstract long-term project when they had a perfect opportunity to address it head-on. We asked them to say how much should be done about thuggish threats before they can override free speech rights but after summarising the different approaches in other countries, they passed that ball into space.
While the Court of Appeal Judgement improved upon the High Court Judgement, it leaves the right to freedom of expression vulnerable to vague threats of violence. We wish to argue that the Court's failure to address the heckler's veto concept was wrong. The judgement allows for a threatened unlawful action (a blockade, with an implicit threat of intimidation) to effectively curtail the lawful exercise of fundamental rights. Free speech rights in public spaces and venues across New Zealand need protection from such a dangerous precedent.
Further, cancelling the contract for the event didn’t serve any objective aimed at substantive and urgent concerns (RFAL had other options to deal with the security concerns rather than outright cancelling the event). For example, RFAL took no genuine steps to obtain professionally based, reliable information about the security concerns, either by engaging with the police, its own security personnel or the event organizer. Rather, RAFL cancelled the event having succumbed to unsolicited threats of unlawful action. This is a disproportionate response to a breach of fundamental rights.
The Court of Appeal judgment also emphasised the event organisers’ non-disclosure of security arrangements for comparable events in Australia, and labelled this “contributory fault” but they were under no such obligation to disclose these (they were required to submit a health and safety plan 10 workings days before the event but RFAL cancelled the contract 28 days in advance.). In any event, it is standard for human rights cases to involve conduct that is near the margins.
There are other considerations too. I’m no lawyer, but I’ve sat through enough judicial proceedings to know that courtroom dynamics can be important. The way lawyers interact with the judges and with each other can have a bearing on the way the hearing plays out. Body language can tell you something.
It might seem an odd analogy, but I recall it being suggested at the inquiry into the Wahine sinking that if the ship had had open wings on its bridge, the captain would have been able to step outside and physically feel the brute force of the storm. But he was cocooned in a fully enclosed bridge and might not have fully appreciated what his ship was sailing into.
In the same way, it seems reasonable to suggest that it makes a difference when the participants in court proceedings are physically together in the same room – appropriately masked and distanced, of course – rather than forced to engage via the arid means of digital technology, even when the case is likely (as in this instance) to involve a lot of dry legal argument.
To put it another way, the quality of the judicial decision-making may be influenced by the circumstances in which the case is heard. Justice is ultimately a flesh and blood business, after all, and judges shouldn’t allow it to be dehumanised.
For those interested in the background of the hearing, the FSU issued the following media advisory note:
Supreme Court to hear appeal of Moncrieff-Spittle v Regional Facilities Auckland Ltd
21 February 2022
FOR IMMEDIATE RELEASE
Time: 2.15 pm Monday, 21 February and continuing Tuesday, 22 February
Location: Supreme Court of New Zealand
Background
This is the first case to come before our appellate courts of attempts to de-platform by resorting to the heckler’s veto. Backing our case, Professor Philip Joseph, the author of New Zealand’s leading textbook on Constitutional and Administrative Law, will appear with the Free Speech Union’s lead barrister, Jack Hodder QC.
The Free Speech Coalition (now Union) was born out of an effort to crowdfund for this legal fight after Mayor Phil Goff ostensibly ‘banned’ two controversial Canadian speakers, Lauren Southern and Stephen Molyneux, from speaking at a Council-owned venue.
What happened in the Courts previously?
Once we filed proceedings in the High Court, we found out that Goff had lied. The decision to cancel the event was actually made by Regional Facilities Auckland Ltd (RAFL) personnel only hours after receiving an email threat from Auckland Peace Action to blockade the event venue four weeks before the event was to take place. No investigation into the credibility of the threat or what measures might have been taken to manage it took place at any stage. The Court ruled that our plaintiffs were on a “personal crusade” and didn’t have standing to bring the case. The Court also held that the decision to cancel the event was not judicially reviewable because RFAL’s decision did not, in the Judge's opinion, involve an exercise of public power and the venues were technically held in trust.
To our relief, the Court of Appeal reversed the most disturbing parts of the High Court Judgement, holding that RFAL must uphold free speech rights as if it were the Council. It also held that our plaintiffs did have standing to bring the case and we were relieved by the appeal decision to cut the costs awarded against us by 70% because of the importance of the issues and public interest in our bringing the case.
That being so, the Court of Appeal ultimately found the decision to cancel the event to be a ‘justified limit’ on freedom of expression under section 5 of the New Zealand Bill of Rights Act. In holding that the decision to cancel the event was a justified limit on free expression, the Court of Appeal considered the purported failings of the event organisers (in particular the Court of Appeal was critical of the event organisers for not warning RFAL venue management of the possibility of law-breaking protest at the time of booking), the experience of RFAL personnel, the venue hire agreement and the protest noise over the preceding week. The Court of Appeal held that the “heckler’s veto” concept we put forward had a general application as part of the section 5 analysis but did not go on to analyse it or consider its implications under section 5 in any detail.
Why this further appeal?
The Court of Appeal judges stopped after describing the thug's veto problem as if solving it was not their job, instead treating it like some sort of abstract long-term project when they had a perfect opportunity to address it head-on. We asked them to say how much should be done about thuggish threats before they can override free speech rights but after summarising the different approaches in other countries, they passed that ball into space.
While the Court of Appeal Judgement improved upon the High Court Judgement, it leaves the right to freedom of expression vulnerable to vague threats of violence. We wish to argue that the Court's failure to address the heckler's veto concept was wrong. The judgement allows for a threatened unlawful action (a blockade, with an implicit threat of intimidation) to effectively curtail the lawful exercise of fundamental rights. Free speech rights in public spaces and venues across New Zealand need protection from such a dangerous precedent.
Further, cancelling the contract for the event didn’t serve any objective aimed at substantive and urgent concerns (RFAL had other options to deal with the security concerns rather than outright cancelling the event). For example, RFAL took no genuine steps to obtain professionally based, reliable information about the security concerns, either by engaging with the police, its own security personnel or the event organizer. Rather, RAFL cancelled the event having succumbed to unsolicited threats of unlawful action. This is a disproportionate response to a breach of fundamental rights.
The Court of Appeal judgment also emphasised the event organisers’ non-disclosure of security arrangements for comparable events in Australia, and labelled this “contributory fault” but they were under no such obligation to disclose these (they were required to submit a health and safety plan 10 workings days before the event but RFAL cancelled the contract 28 days in advance.). In any event, it is standard for human rights cases to involve conduct that is near the margins.
Footnote: I originally posted this column yesterday, but took it down when confusion arose as to how the hearing was being conducted. I'm now satisfied that what I've written is a fair account of the situation.
The way lawyers interact with the judges and with each other can have a bearing on the way the hearing plays out.
ReplyDeleteMy reading of this refusal even to allow a simple live stream of the case is that the judges have made up their minds. Nothing the lawyers for free speech say will change the outcome, whatever the body language.
A ruling against free speech in this case threatens to end free speech as we thought was meant by the term. All the lower courts would have to uphold the Supreme Court decision. The many enemies of free speech would seize on it to close down contrary opinions on countless topics.
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ReplyDelete"Transparent, accessible and open justice"? Such touching idealism! That's not the "New Normal" I'm afraid. All part of the "Foundational Change".
ReplyDeleteYou are quite right, this is a significant case in NZ law, very significant indeed. I am reluctant to say that we are seeing the death throes of justice simply because justice has never been a big part of our legal system. What we are seeing is the rise of dogma-based rule in NZ, apparent in the leglislative and legal branches of government, fed by academia and the media.
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