5 Aug 2020

Judges retire to consider appeal against council ban on Southern, Molyneux event

5:19 pm on 5 August 2020

Three Court of Appeal judges have retired to consider whether Auckland Council broke the law by denying two far right speakers the opportunity to host an event in one of its venues.

Coat of Arms inside the High Court in Rotorua

Photo: RNZ / Claire Eastham-Farrelly

Lauren Southern and Stefan Molyneux had been due to speak at the Bruce Mason Centre in August 2018, sparking a public outcry and large protests, but the council-controlled Regional Facilities Auckland intervened and stopped the event.

The speakers, through Australian agency Axiomatic Events, tried to hire a private venue instead but got turned down time and time again.

Auckland Council had claimed that it made the decision out of concern for public safety, given the angry protests that the event would no doubt invoke.

Jack Hodder QC, who was acting for the appellants, argued the council failed to properly explore the public safety issue and had not, for example, contacted police about how the event could be safely managed.

"The proposition is that health and safety matters trump everything else, not least public discourse," Hodder said.

"That is described ... as a pragmatic approach. Conversely, that would suggest it was an unprincipled approach - no advice about legal obligations being sought, no advice about security being sought, police input not obtained."

He suggested it was a foregone conclusion the event would be cancelled before the issue of health and safety was raised on the morning the event was called off.

"Up to that point, as we know, all the previous concerns had been about content - those are the concerns that had been expressed to RFAL [Regional Facilities Auckland].

"They were about the content; we don't want these people here, we think that what they say is objectionable."

The appeal was lodged by Dunedin bookseller Malcolm Moncrief-Spittle and prominent member of the Auckland Jewish community David Cumin after the High Court found the council had acted lawfully.

The higher court was told that Cumin had no interest in attending the event and was acting on the principle of protecting free speech, while Moncrief-Spittle had paid $749 for a "VIP" meet-and-greet with Southern and Molyneux.

Counsel for Regional Facilities Auckland and Auckland Council Katherine Anderson argued that the speakers could have sought another private venue to hold their event.

"Council and RFAL do not have a monopoly on venues. The premise that my friend [Hodder] put to you is that there's a special role of council in providing venues," she said. "The city's awash with venues."

Justice Kós questioned the lawyer about the role of local government.

"I mean this is the very work of local government, it has those overriding responsibilities [of] well-being and social discourse," he said.

"It's not just right wing activists that we're talking about here it's liberal causes that may be unpopular. The Howard League wants to hold a rally to encourage lower sentences, the Sensible Sentencing Trust on the other side wants to hold a counter rally."

Anderson argued that the "artists" - as Southern and Molyneux were referred to in contractual documents - could not be said to have been holding a public event, as claimed by the appellants.

"The artists were to be paid a minimum of $60,000 each so in this context it's clearly a paid speaking engagement. It was not an event that was open to the public."

Justice Kós called it a "tricky case".

"The fact that we have thoroughly tested the arguments by putting propositions which are inherently diverse doesn't mean that we have formed a view about this case. We will consider the merits of it and the arguments presented and deliver our decision as soon as we can."

The appellants have also asked the Court of Appeal to overturn a decision ordering them to pay $46,500 in court costs.

It could be several months before a judgement is released.