Human Rights in the Administrative Decision-making Process: Moncrief-Spittle v Regional Facilities Auckland Limited [2022] NZSC 138

The New Zealand Supreme Court’s recent decision in Moncrief-Spittle v Regional Facilities Auckland Limited [2022] NZSC 138 contains an illuminating discussion of many important issues, including the obligation of public decision-makers to take human rights into account in their decision-making processes.

The incident which gave rise to the underlying litigation was the cancellation of an event featuring alt-right speakers (Canadians both, as it happens) at the Bruce Mason Centre, a 1,000-seat theatre in Auckland. Perhaps predictably enough, when word began to circulate about the event, voices were raised in opposition to giving these speakers a platform; one local group promised to blockade the venue and confront the speakers. The organizers had not concealed any information about the event but equally they had not raised potential security issues, even though they had faced similar challenges in hosting the same event in Australia.

Ultimately, the facilities management company (RFAL) responsible for the venue decided to cancel the event:

[The director] identified the competing demands as being the right to protest in a safe environment, Auckland Peace Action’s reputation for blocking events it disagreed with and the potential for disruption and violence. Mr Macrae said that he did not want to risk being in breach of his health and safety obligations with the potential for prosecution in that regard, nor to be responsible for anyone being harmed at the event (at para. 13).

An application for judicial review was brought by two individuals, a ticket holder for the cancelled event and a local concerned citizen.

An important preliminary question was whether the New Zealand Bill of Rights applied to the decision to cancel the event. RFAL is an entity that manages various facilities for Auckland Council. The council is a public body, but it had not taken any decisions here. What about RFAL? Section 3(3)(b) of the NZBORA makes its provisions applicable to “acts done…by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law”. The animating purpose is to ensure that bodies which “carry out functions of a public nature, are caught by the Bill of Rights” (at para. 46). This ultimately requires a judgement call based on a variety of contextual factors (see para. 42). Here, “RFAL effectively stands in the shoes of Auckland Council in providing a service that is intended for the social well‑being of the community, and so there is a governmental aspect to its functions” (at para. 51). Moreover, it was “relevant that running this part of the Council’s business engages freedom of expression” (at para. 59). The NZBORA accordingly applied.

For similar reasons, the cancellation decision was amenable to judicial review on the usual common law grounds, including rationality (at para. 113), despite its contractual nature:

First, RFAL’s actions in this respect were inextricably linked with the Auckland Council and the implementation of its social objectives.[149] Second, RFAL’s activities are not solely commercial, a point we will develop further shortly. Third, its assets were acquired with public funds. Fourth, as the Court of Appeal noted, whilst most of the Trust’s operating revenue (some 70 per cent) is derived from commercial activities such as venue hire, the balance comes from funding from the Council. Finally, the decision to cancel plainly engages freedom of expression and,[150] in this respect, RFAL’s functions, although expressed in different language, are derived from those formerly vested in territorial local government in relation to the holding and maintenance of land and buildings for purposes that include holding public meetings (at para. 109).

Given that the NZBORA applied, RFAL had to comply with the rights therein set out, of which freedom of expression was particularly relevant (at para. 61). There was some argument about whether freedom of expression has a positive as well as a negative function but the Court found it was unnecessary to take a firm position, finding “the right to receive information was engaged and was curtailed at least in relation to Mr Moncrief-Spittle as he had purchased a ticket to the event” (at para. 73). As such, the contract could only be cancelled if cancellation was a reasonable limit on the right to freedom of expression (at para. 74), consistent with s. 5 of the NZBORA: “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

Freedom of expression was a “substantive constraint” on RFAL, not merely a factor to be taken into consideration (at para. 83). But it was a substantive constraint in two ways. First, RFAL “had to turn [its] mind to and engage with the question of whether it was reasonable to limit the free speech interest in play by cancelling the event” (at para. 83). Indeed, in the decision-making process, RFAL was “required to give freedom of expression a heavy weighting” (at para. 121). Here, RFAL’s decision-making was adequate: it took freedom of expression into account (at para. 125) and balanced it with its statutory duties in respect of health and safety (at para. 126); and it considered options which would be minimally impairing of freedom of express, though many of these were not actionable because of decisions made by the organizers (e.g. to publish information about the venue) (at paras. 128-130).

Second, on judicial review, the reviewing court would have to be “satisfied that the decision was a reasonable limit” (at para. 84). Here, the Court considered comparative jurisprudence on the application of the proportionality test to individualized administrative decisions and ultimately adopted the “less structured approach” set out by the Supreme Court of Canada in Doré over the proportionality test set out in Oakes (at para. 91). After a brief and somewhat inconclusive discussion of the ‘heckler’s veto’ jurisprudence from the United States, the Court held that the cancellation decision was a reasonable limit on freedom of expression in this case:

The key question is whether the limit on the right effected by the cancellation of the venue hire agreement was a reasonable limit that could be justified in a free and democratic society. In terms of that question, we agree with the Court of Appeal that cancellation was a reasonable limit on the right to freedom of expression. Given the factual findings,[143] this aspect of the present case can be resolved simply by saying that health and safety issues could be relied on, freedom of expression having been given a heavy weighting.[144] Certainly, Mr Macrae was in a better position than we are to assess matters such as the ability to manage security concerns, the costs of that exercise, and how the features of the venue would affect risk. In any event, as we have discussed, we consider cancellation was almost inevitable once the option of not publicising the venue until late in the piece was lost. This is not to say that option must always be available. Rather, given the features of this venue, the relatively inexpensive nature of the tickets, and the likely costs to RFAL of ensuring it could meet its health and safety obligations, cancellation was a proportionate response. We add that it is relevant to the balancing exercise that the Bruce Mason Centre was not available to all members of the public, like the traditional town hall or community centre. Rather, those who wanted to hear the speakers had to pay. Finally, Axiomatic was able to hire an alternative venue (at paras. 101-103).

This is a very interesting decision on freedom of expression and the scope of judicial review (including bills of rights), where the emphasis on a contextual approach is especially notable (see chapter 7 of Understanding Administrative Law).

Reading from Canada, I am most struck by the preference for the Doré approach to reasonable limits, with Doré’s status in Canadian administrative law very much in a state of flux.

But I am also struck by the Court’s comment that Doré reflects “an approach which, to some extent at least, merges consideration of both substantive and procedural issues” (at para. 82). Indeed, as I have remarked before, Doré has an administrative justice aspect to go with its judicial review aspect: it speaks to the obligations that administrative decision-makers have in respect of fundamental rights (cast in terms of “values” in order to make them easier to operationalize in an administrative setting). The obligation to give a “heavy weighting” to freedom of expression in the decision-making process — an obligation which is separate and distinct from the court’s obligation to ensure that limits on freedom of expression are reasonable — is of a piece with Doré’s twin-track approach. Indeed, the New Zealand Supreme Court’s approach could map quite well onto Vavilovian reasonableness review, with fundamental rights to be grappled with in the decision-making process and acting as hard constraints on the decision-maker’s freedom of action.

Some of these issues will be aired at the Supreme Court of Canada next month, when the judges hear the appeal from the decision of the Court of Appeal for the Northwest Territories in A.B. v Northwest Territories (Minister of Education, Culture and Employment), 2021 NWTCA 8, where one of the many questions is the role that the Charter plays in administrative decision-making. I am representing the Commission scolaire Francophone du Yukon (you can read my written submissions here).

This content has been updated on January 17, 2023 at 20:25.