Tuesday, October 01, 2019

A disturbing decision

Yesterday the High Court released its decision in Moncrief-Spittle v Regional Facilities Auckland Limited, on the (alleged) decision by the Auckland Council and Mayor Phil Goff to deny use of a public venue to a pair of visiting nazi grifters. Based on the information available back then, I said that I found the decision disturbing: freedom of speech is the foundation for any democratic change, and the idea that a council or council-controlled organisation could deny it because they didn't like what was being said was chilling (to point out the obvious, while everyone hates nazis, its not just nazis such powers could be used against).

The good news is that the court found that Goff and the Council had nothing to do with the decision. Instead, it was made independently by Regional Facilities Auckland on health and safety grounds, with no element of external direction. That raises other issues around heckler's vetoes and the real and serious duties of the Health and Safety at Work Act 2015 and their interplay with the BORA, and I was hoping that they would be addressed. They weren't. Instead, the court found that the decision was unreviewable, because Regional Facilities Auckland - a Council Controlled Organisation, established for the benefit of the people of Auckland and subject to the LGOIMA - was not "public", but acting in a purely private and commercial capacity.

Andrew Geddis has pointed out the irony here, because the decision was basicly made on the basis of National's supercity "reforms", which privileged "efficient" (privatised) public services over public control. But while enjoying that irony, I agree with Dean Knight that a finding that a CCO has no public duties and its decisions are unreviewable is disturbing to say the least. To point out the obvious, judicial review is a keystone of public accountability, but the effect of this decision is apparently to make a large (and growing) chunk of what was previously public business "private" and unaccountable. There's another irony here, in that NeoLiberalism was supposed to improve accountability; the ruling of this court is that is has done the opposite. And that's rather more important than a pair of visiting nazis.

(As for the actual issue at stake, I'd welcome an appeal and a decision on the merits. Knight thinks it would have gone against the nazis, and if so, that would be useful in clarifying what the limits of free expression are).