MONCRIEF_x001e_SPITTLE v REGIONAL FACILITIES AUCKLAND LIMITED [2021] NZCA 142

MONCRIEF-SPITTLE v REGIONAL FACILITIES AUCKLAND LIMITED [2021] NZCA 142 [30 April 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA531/2019[2021] NZCA 142BETWEEN MALCOLM BRUCEMONCRIEF-SPITTLEFirst AppellantDAVID CUMINSecond AppellantAND REGIONAL FACILITIES AUCKLANDLIMITEDFirst RespondentAUCKLAND COUNCILSecond RespondentHearing: 4 and 5 August 2020Court: Kós P, Cooper and Courtney JJCounsel: J E Hodder QC and J K Grimmer for AppellantsK Anderson, KEF Morrison and O J Towle for RespondentsF M Joychild QC, J S Hancock and E C Vermunt for HumanRights Commission as IntervenerJudgment: 30 April 2021 at 10 amJUDGMENT OF THE COURTA The appeal against the High Court's substantive decision is dismissed.B The appeal against the High Court's costs decision is allowed.C Costs and disbursements payable in the High Court are reduced by70 per cent.D Counsel may file memoranda as to costs on the appeal within 10 workingdays from the date of this decision.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Table of ContentsPara NoIntroduction [1]Factual background [11]The case in the High CourtThe basis for challenge [19]The High Court decision [23]Issue 1: is the decision to cancel reviewable?The issues [29]The statutory context [33]RFAL's status [45]Is the decision to cancel reviewable and on what basis? [51]Did the decision to cancel have important publicconsequences?[69]Common callings [71]Issue 2: was the decision unlawful by reason of it being irrational,perverse or arbitrary?The issues [72]The events leading up to the decision to cancel [73]Was the decision made prematurely and without adequateinformation?[88]Did RFAL fail to follow its to follow the health and safetypolicy?[94]The "heckler's veto" [97]Misdirection on the law [110]Issue 3: was the cancellation an unreasonable limit on the BORArights engaged?The BORA rights engaged [111]Was the decision to cancel a reasonable limitation on the rightsof freedom of expression and peaceful assembly?[116]Issue 4: did the appellants have standing to bring theproceedings?[128]Issue 5: did the Judge err in making the costs order against theappellants?[133]Result [142]Introduction[1] In New Zealand the right to freedom of expression, including the freedom toseek, receive and impart information and opinions of any kind in any form, is protectedby the New Zealand Bill of Rights Act 1990 (BORA). The question in this appeal iswhether a council-controlled organisation (CCO) is under an obligation to facilitatethe right to freedom of expression when it hires out a venue for a paid event.[2] Regional Facilities Auckland Ltd (RFAL) is wholly owned by the AucklandCouncil. It is the trustee of Regional Facilities Auckland, a charitable trust and CCOestablished as part of the Auckland "super city" merger in 2010 to hold and manageassets previously held by territorial authorities in the Auckland region. One of theseassets is the Bruce Mason Centre on Auckland's North Shore.[3] An Australian promoter hired the Bruce Mason Centre to host speakers whoseviews (unbeknownst to RFAL) had attracted controversy overseas. Once the proposedevent became public knowledge, a group opposed to the speakers' views signalled itsintention to blockade the theatre to prevent the event proceeding. The venue hireagreement (VHA) was cancelled on the grounds of perceived health and safety risksarising from the anticipated action by the protesters.[4] Mr Moncrief-Spittle had purchased a ticket for the event and was disappointedat its cancellation. Dr Cumin is an Auckland ratepayer and a member of the AucklandJewish community. He was concerned that his community's future use of Councilfacilities could be affected by threats from those wanting to disrupt planned events.Mr Moncrief-Spittle and Dr Cumin sought judicial review of the decision to cancelthe VHA. They argued that RFAL was under public law obligations to facilitate theright to freedom of expression and, in breach of those obligations, had cancelled theevent without being satisfied that there were clear and sufficient public safety groundsfor doing so.[5] In the High Court, Jagose J held that RFAL's decision to cancel the VHA wasnot reviewable because RFAL was not exercising a public power.1 As a result, nor didthe Judge accept that RFAL's decision was made in the performance of any publicfunction or power for the purposes of s 3(b) of BORA and, therefore, theBORA-protected right to freedom of expression was not engaged. The Judge also heldthat neither Mr Moncrief-Spittle nor Dr Cumin had standing to bring the proceedings.[6] The appellants challenge each of these findings. They say the decision tocancel was (1) reviewable because it was in substance public and was made in theexercise of a public function or power for the purposes of BORA or, alternatively, thatit had important public consequences, (2) unlawful because it was unreasonable onorthodox public law principles and (3) an unreasonable limitation on BORA-protectedrights. They seek a declaration that RFAL acted unlawfully in cancelling the VHA, inorder to secure confirmation that bodies responsible for managing public assets mustrecognise and facilitate the rights of free speech and association enjoyed by thoseorganising unpopular or controversial events. They say that they have standing byvirtue of their differing interests — Mr Moncrief-Spittle in relation to the particularevent and Dr Cumin as an Auckland ratepayer, in relation to the future use by hiscommunity of public venues.[7] The respondents seek to support the judgment on the grounds that the decisionto cancel was (1) not reviewable because its context was essentially commercial ratherthan public, (2) not unlawful because it was not unreasonable and (3) if BORA wasengaged, a reasonable limit on BORA-protected rights. As to standing, therespondents support the judgment only in relation to Dr Cumin; they nowacknowledge that Mr Moncrief-Spittle had standing to bring the proceeding.[8] In a separate decision, Jagose J ordered the appellants to pay costs on the basisthat the proceedings did not concern matters of public interest.2 The appellants appealthat decision as well, asserting that the proceeding did raise matters of genuine publicinterest and that either no costs should have been awarded against them, or the Court1 Moncrief-Spittle v Regional Facilities Auckland Ltd [2019] NZHC 2399, [2019] 3 NZLR433 [Substantive decision].2 Moncrief-Spittle v Regional Facilities Auckland Ltd [2019] NZHC 2828 [Costs decision].should have significantly reduced the costs payable by the appellants. The respondentssupport that judgment for the reasons set out in the judgment and on further grounds.[9] The Human Rights Commission was granted leave to intervene, which it didon the question whether BORA was engaged.[10] We deal with the issues as follows:(a) Issue 1: is the decision to cancel reviewable?(b) Issue 2: was the decision to cancel unlawful by reason of it beingirrational, perverse or arbitrary?(c) Issue 3: was the cancellation an unreasonable limit on the BORA rightsengaged?(d) Issue 4: did the appellants have standing to bring the proceedings?(e) Issue 5: did the Judge err in making the costs order against theappellants?Factual background[11] RFAL operates through five divisions. One of these is Auckland Live, whichis responsible for venues (mostly theatre-style) used for live performances. It bookscommercial and non-commercial events at its venues, which include the Bruce MasonCentre.[12] In June 2018 Axiomatic Media Pty Ltd (Axiomatic) contacted Auckland Liveto inquire about hiring a venue for two speakers in early August 2018. The ASBWaterfront Theatre and the Bruce Mason Centre were both available on the dates beingsought and Axiomatic selected the Bruce Mason Theatre for a performance on 3August 2018. When Auckland Live sought more information about the event,Axiomatic advised that the speakers were Stefan Molyneux and Lauren Southern anddescribed them respectively as "a renowned philosopher and author" and "adocumentary filmmaker and best-selling author".[13] A few days later Auckland Live sent Axiomatic a standard form VHA.The agreement required a hire fee of $5,000 or 12.5 per cent of net box office takings,whichever was greater. Axiomatic was to provide a written health and safety plan forthe event and the venue addressing all hazards to RFAL's reasonable satisfaction atleast 10 days in advance of the event. Axiomatic completed and returned theagreement. On 18 June 2018 RFAL countersigned the agreement.[14] There were separate agreements between the promoter and the speakers underwhich the speakers would be paid AUD 10,000 each plus a share of profit frommerchandise sales.[15] Tickets went on sale on 29 June 2018. They were priced at between $79 and$749 each. Axiomatic publicised the date and venue of the event. Within a short time,there were complaints. RFAL learned that the speakers were self-described "alt-right"activists and that for the Australian leg of their tour venues had only been advised toticketholders 24 hours beforehand. RFAL decided to approach the police for its viewregarding any threat the event might pose.[16] On 5 July 2018 a representative of Auckland Peace Action appealed tothe Council directly, asking that the event be cancelled. On the morning of 6 July2018, Auckland Peace Action issued a press release announcing its intention toblockade entry to the venue. Soon after that, RFAL management held a meeting todiscuss the situation. There was particular concern over the fact that the Bruce MasonCentre was located on the corner of two busy roads in Takapuna which weresurrounded by local businesses and restaurants. This would make crowd and trafficcontrol, and separating attending patrons from protestors while preserving publicaccess to other businesses, difficult. There was a high degree of risk to safety if theCentre had to be evacuated. There was concern at the cost of additional securitymeasures. No bond or guarantee had been obtained from Axiomatic to cover suchexpenses.[17] Later in the morning the director of Auckland Live, Robin Macrae, made thedecision to cancel the event. He identified the competing demands as being the rightto protest in a safe environment, Auckland Peace Action's reputation for blockingevents it disagreed with and the potential for disruption and violence. Mr Macrae saidthat he did not want to risk being in breach of his health and safety obligations withthe potential for prosecution in that regard, nor to be responsible for anyone beingharmed at the event.[18] RFAL advised Axiomatic of its decision by telephone in the afternoon, givingthe reason as a pragmatic one related to security. On 10 July 2018 it wrote formallyconfirming that decision.The case in the High CourtThe basis for challenge[19] The proceedings began as a claim for breach of contract by Axiomatic andjudicial review by Axiomatic and the appellants. The application for interim reliefwas withdrawn and Axiomatic took no further steps. The appellants continued theirclaim for judicial review.3[20] The substantive hearing proceeded on the basis of a third amended statementof claim. It was said that RFAL was the Council's agent and all references to RFALwere to be taken as including the Council. As argued, the decision sought to beimpugned was that made on 6 July 2018 that the event should not be held at the BruceMason Centre or any of its other venues.4[21] The appellants pleaded that:RFAL performs a public function when granting and/or terminating licencesto use the Public Venues.3 Initially the Mayor of Auckland, Philip Goff, was named as a respondent on the basis that he hadmade or dictated the decision under challenge. However, the appellants accepted that the evidencefiled on behalf of RFAL and the Council showed this not to be the case and there is no allegationmaintained against the Mayor.4 The pleadings also identified an alleged representation when advising of the cancellation that noother public venues would be available because of security and safety concerns and/or lack ofavailability. However, the appeal focussed on the actual decision to cancel.In exercising such public functions, RFAL and the Council were and aresubject to public law obligations, including making decisions involving suchfunctions on the basis of relevant considerations only, on an appropriatelyinformed basis, without errors of law or fact, and rationally.In particular, in making such decisions, RFAL and the Council were and arerequired to facilitate rights to freely express lawful speech and opinionswithout these being denied or eroded by potential health and safety risksassociated with possible physical protests against such speech and opinionswhere such risks are not founded on cogent and informed evidence followingproper investigation and consultation.[22] It was alleged, first, that the decision to cancel was irrational, perverse andarbitrary and, secondly, that it unreasonably restricted the appellants' common law andBORA-protected rights to freedom of thought and expression, peaceful assembly andassociation and freedom from discrimination.5The High Court decision[23] The Judge recorded the appellants' argument that the decision to cancel:6 engaged "broader public interests" in provision of a public forum –including the trust's argued objective to promote cultural well-being andinvolved "a high level of governmental involvement" (in the form ofthe Council and Mayor) [24] The reference to the Trust's "argued objective to promote cultural well-being"is a reference to Regional Facilities Auckland's statement of intent, which included asa stated objective "advancing the social and cultural well-being of Aucklanders". Thiswas heavily relied on in the High Court and before this Court.[25] However, the Judge did not accept that the objective expressed in the statementof intent imposed any direct obligation on RFAL. Rather, the Trust held a "subsidiarybut standalone role"; it was not required to promote community well-being itself, butinstead existed to promote "the effective and efficient provision, development andoperation" of regional facilities, as provided for by clause 3.2 of RFAL's Trust Deed.7The Judge regarded the objective of "promotion" as an outcome of the establishmentof the Trust rather than a task for the Trust to undertake.5 New Zealand Bill of Rights Act 1990 [BORA], ss 13, 14, 16, 17 and 19.6 Substantive decision, above n 1, at [32] (emphasis added).7 At [35]–[36].[26] The Judge did not see the Trust's principal statutory obligation to "achieve theobjectives of its shareholders"8 as inconsistent with this conclusion:[38] A context-free reading of the trust's statutory "principal obligation" –"to achieve the objectives of its shareholders, both commercial andnon-commercial, as specified in the statement of intent" – might be thought topermit the trust to arrogate to itself, by incorporation in the statement of intent,such of the Council's objectives as it sought to achieve. But that would be todisregard the quite careful delineation between Council and trust in theirconstituent documents.[39] The "deciding" entity for promotion of community well-being, whensuch is a local government purpose, here is the Council. The separationbetween Council and trust is reinforced in the latter's statement of intent,which emphasises the Council's objective to provide community facilities andthe trust's intention to manage them. That is not to say trust and trustee areimmune from judicial review on their cancellation of the event. It remainsnecessary to identify what public or governmental power they (or the Council)may be said to have exercised in deciding to cancel the event.(Footnote omitted).[27] The Judge went on to consider the nature of the power RFAL exercised incancelling the event and whether public law obligations accrued to it in doing so. Heconsidered that there was no evidence of the Council requiring anything more fromthe Trust than the functional role reflecting the vesting of the Bruce Mason Centre inRFAL.9 Significantly, the Judge noted that the Council's own statutory purpose at thetime required it to provide good quality public services in a cost-effective way.10 Inthe Judge's view:[44] Had I to confront the Council's obligation directly, I would haveheld "public services" even broadly interpreted still did not extend to theoutcome sought by the applicants. Rather, by reference to the since-repealeds 11A,[11] those "public services" then were the more prosaic provision ofamenities in which the city's "vision" may be achieved. Even if the BruceMason Centre was to be considered a "community amenity" for the purposesof s 11A, its "contribution" was not expressly to be in promotion ofcommunity well-being, but in provision of good-quality public services in acost-effective way. 8 Local Government Act 2002, s 59(1)(a) [LGA 2002].9 Substantive decision, above n 1, at [42].10 At [43], referring the Local Government Act 2002 Amendment Act 2012, s 7.11 Section 11A of the LGA 2002, which was repealed in 2019, identified the core services localauthorities were to have particular regard to as network infrastructure, public transport services,solid waste collection and disposal, the avoidance or mitigation of natural hazards and libraries,museums, reserves and other recreational facilities and community amenities.[45] In the end, it was not for the trust proactively to pursue the Council'sactivities. Rather, it was for the Council to devolve such to the trust, if theCouncil can and decides to do so. There is nothing in the trust's constituentdocuments to suggest the Council here has put any direct responsibility forcommunity well-being with the trust. Instead the trust's express responsibilityis to provide services on the Council's behalf, with only discretionaryobligation to have regard for "the interests of the community" (and even thennot more proactively to promote community well-being).(Footnotes omitted).[28] In these circumstances, the Judge concluded that RFAL did not exercise apublic power in cancelling the event.12 Nor, for the same reasons, did the Judgeconsider that RFAL was exercising any public power that would engage BORA.13Issue 1: is the decision to cancel reviewable?The issues[29] Mr Hodder QC, for the appellants, submitted that RFAL is properly viewed asthe Council's agent and, in managing the Bruce Mason Centre, was carrying out localgovernmental functions. He argued that the Judge erred in reasoning by reference towhether the Council had "devolved" its powers to RFAL through the Trust so thatRFAL was providing services on the Council's behalf; it effectively "stood in theshoes" of the Council. He submitted that a public body ought not to be able to avoidscrutiny by the courts by simply conferring its powers and functions on other entitiesover which it continues to exercise control.[30] If RFAL is held to be the Council's agent, Mr Hodder submits that the correctfocus is on whether the power being exercised was in substance public. Because ofthe nature of the event, BORA is engaged in relation to the right to freedom ofexpression and other rights and reviewable on usual principles. If RFAL is held not tobe the Council's agent, the decision is nevertheless reviewable on the usual principleson the basis that it had important public consequences. The appellants' argumentsrested, essentially, on the fact that the assets RFAL owns and manages are public assetsand on the express objective in RFAL's statement of intent to advance the culturalwell-being of Aucklanders.12 At [46].13 At [54]–[55].[31] RFAL accepts, in principle, that a decision made by it could be amenable toreview. But it does not accept that it is the Council's agent. Nor does it accept that,even if it were held to be the Council's agent, the decision to cancel the VHA isreviewable. It says that the correct focus should be on the fact that the decision wasmade in the context of a commercial contract and, as such, is only amenable to reviewin limited circumstances where there has been fraud, bad faith, corruption or the like,none of which exist in this case.[32] These arguments raise two distinct issues. First, is RFAL's status merelysubsidiary, as the Judge found, or is it properly viewed as a public body under publiclaw principles and for the purposes of s 3(b) of BORA? Secondly, is the decision tocancel reviewable? Answering the first question does not answer the second, whichdepends on the nature of the decision and the context in which it was made.The statutory context[33] Determining whether RFAL is properly viewed as the Council's agent requiresa full explanation of the statutory context in which RFAL was established andcontinues to operate.[34] In 2018, when RFAL cancelled the VHA, the statutory purposes of localgovernment in New Zealand were:14(a) to enable democratic local decision-making and action by, and onbehalf of, communities; and(b) to meet the current and future needs of communities for good-qualitylocal infrastructure, local public services, and performance ofregulatory functions in a way that is most cost-effective forhouseholds and businesses.[35] The role of a local authority is to give effect to the statutory purposes of localgovernment (obviously as they stand at the relevant time) and to perform the dutiesand exercise the rights conferred on it by or under the Local Government Act 200214 In 2010, when the Trust was established, s 10 of the LGA included as one of the purposes of localgovernment "to promote the social, economic, environmental, and cultural well-being ofcommunities in the present and for the future". The formulation that stood in 2018 was insertedby the Local Government Amendment Act 2012, s 7. In 2019 the purpose was changed again,reverting to the previous formulation.(LGA 2002) and any other enactment.15 Local authorities must adopt a long-term plan,one purpose of which is to provide integrated decision-making and co-ordination ofthe resources of the local authority.16[36] Local authorities may establish CCOs and transfer some of their undertakingsto those organisations. CCOs are required to produce a statement of intent and theirdecisions must be made in accordance with that document.17 They are subject toperformance monitoring by the local authority, including as to achievement of thedesired results as set out in the statement of intent, which the local authority musteither agree to or take steps to modify.18 CCOs have as a principal objective to"achieve the objectives of its shareholders, both commercial and non-commercial, asspecified in the statement of intent".19[37] In 2010, local government in the Auckland region was reorganised to createwhat is commonly known as the Auckland "super city". This was achieved bythe Local Government (Tamaki Makaurau Reorganisation) Act 2009, the LocalGovernment (Auckland Council) Act 2009 (LGA 2009) and two orders in council,the Local Government (Tamaki Makaurau Reorganisation) Establishment ofCouncil-controlled Organisations Order 2010 (Organisations Order) and the LocalGovernment (Tamaki Makaurau Reorganisation) Council-controlled OrganisationsVesting Order 2010 (Vesting Order).[38] LGA 2009 introduced a new form of CCO, the substantive council-controlledorganisation (SCCO) for the purposes of the reorganisation. The definition of a SCCOincludes a CCO that owns or manages assets valued at more than $10 million.20Regional Facilities Auckland was established as a CCO under the Organisations15 LGA 2002, s 11.16 Section 93(6)(c).17 Sections 60 and 64 and sch 8.18 Section 65.19 Section 59(1)(a).20 Local Government (Auckland Council) Act 2009 [LGA 2009], s 4(1).Order.21 RFAL is the Trustee,22 vested with a variety of regional assets (including theBruce Mason Centre).23 These assets are worth well over $10 million and RFAL is,accordingly, a SCCO.[39] The statutory objectives of the Trust include, relevantly:24 to support the vision of Auckland as a vibrant city that attracts world classevents and promotes the social, economic, environmental, and culturalwell-being of its communities, by engaging those communities (and visitorsto Auckland) daily in arts, culture, heritage, leisure, sport, and entertainmentactivities [40] The Trust Deed establishing Regional Facilities Auckland was required to (anddid) contain a statement of purposes that reflected its statutory objectives:253.2 Charitable Purposes of the Trust: In order to:(i) Engaging the Communities of Auckland: support thevision of Auckland as a vibrant city that attracts world classevents and enhances the social, economic, environmental, andcultural well-being of its communities, by providing RegionalFacilities throughout Auckland for the engagement of thosecommunities (and visitors to Auckland) daily in arts, culture,heritage, leisure, sport, and entertainment activities: and(ii) Providing world class Regional Facilities: develop andmaintain, applying a regional perspective, a range of worldclass arts, culture, heritage, leisure, sport, and entertainmentvenues that are attractive both to residents of and visitors toAuckland;the Trust has been established, and is to be maintained, to promote theeffective and efficient provision, development and operation ofRegional Facilities throughout Auckland for the benefit of Aucklandand its communities (including residents of and visitors to Auckland)and in particular:(c) Development and Operation of Regional Facilities:[26] topromote, operate, develop and maintain, and to hold and21 Local Government (Tamaki Makaurau Reorganisation) Establishment of Council-controlledOrganisations Order 2010 [Organisations Order], cl 9(1). The Trust was one of six structuresdirected by the Organisations Order, the others being the Waterfront Development Entity,Auckland Council Investments Ltd, Auckland Council Investments (AIAL) Ltd, AucklandCouncil Property Ltd and Auckland Tourism, Events and Economic Development Ltd.22 Organisations Order, cls 9(4) and (5).23 Local Government (Tamaki Makaurau Reorganisation) Council-controlled Organisations Vestingorder 2010, cl 14.24 Organisations Order, cl 9(3)(a).25 Clause 9(2).26 "Regional Facilities" include venues that are entertainment facilities, such as the Bruce Masonmanage interests and rights in relation to, Regional Facilitiesthroughout Auckland, and to promote and co-ordinatestrategic planning in relation to the ongoing development andoperation of such facilities;(d) Provision of High Quality Amenities: to provide, and topromote the provision of, high quality amenities at RegionalFacilities throughout Auckland that will facilitate andpromote arts, cultural, heritage, education, sports, recreationand leisure activities and events in Auckland which attract andengage residents and visitors; and(e) Prudent Commercial Administration: to administer, and topromote the administration of, Regional Facilities throughoutAuckland on a prudent commercial basis, so that suchfacilities are operated as successful, financially sustainablecommunity assets.[41] The statutory objectives of RFAL as Trustee include "to ensure that RegionalFacilities Auckland is administered, and its property held, for the purposes set out inthe deed of trust" and "to undertake any activities, in accordance with the deed of trust,that further those purposes".27 As a SCCO, RFAL is also required to give effect to therelevant aspects of the Auckland Council's long-term plan and to act consistently withthe relevant aspects of any other plan or strategy of the Council to the extent specifiedby the Council.28 It is subject to the Council's policy on the accountability of SCCOs,which includes a statement of the Council's expectations in respect of each SCCO'scontributions to and alignment with the Council's objectives and priorities.29[42] The Council's accountability policy describes its relationship with its SCCOsas one of partnership.30 It states as one of the core principles guiding the operation ofSCCOs that the public will hold the Council accountable for the actions of itsSCCOs.31 Its expectation of Regional Facilities Auckland includes that:32RFA shall assist Auckland Council in the delivery of the Auckland Plan andits Development Strategy with the equitable provision of cultural, heritage andlifestyle opportunities in the everyday lives of Auckland's residents andCentre. Under cls 14(1) and (2) and sch 3, pt 1 of the Vesting Order, various assets were vestedin RFAL as Trustee. This included the property known as the Bruce Mason Centre. Other assetsto be vested included the Auckland Art Gallery Toi o Tāmaki, Auckland Stadiums, the AucklandZoo, the Civic Theatre and the Aotea Centre.27 Organisations Order, cl 9(6).28 LGA 2009, s 92.29 Section 90(2)(a).30 Auckland Council Governance Manual for Substantive CCOs (December 2015) at 65.31 At 6.32 At 69.visitors. This shall be facilitated through RFA's management of assets and thefunding decisions made by RFA to support cultural and social activities.[43] The Trust Deed also sets out the respective roles of RFAL and the Council.Relevantly:4.1 Role of Trustee: Subject to the terms set out in this deed, the Trusteewill have overall control of, and responsibility for, the Trust Fund andthe administration of the Trust, and the affairs of the Trust will bemanaged by, or under the direction or supervision of, the Trustee.4.2 Role of Auckland Council: Acting in accordance with its role aslocal authority for Auckland, the role of the Auckland Council inrelation to the Trust is to oversee the conduct of the Trustee and toexercise its powers under the terms of this deed (in addition to anyrights and obligations of the Auckland Council under any of the LocalGovernment Acts or otherwise) to protect the public interest, and inparticular the interests of Auckland and its communities, in relation tothe Trust Fund and the proper administration of the Trust.[44] RFAL's statement of intent for the relevant period stated:Regional Facilities Auckland Limited's primary activity is to act as a corporatetrustee for Regional Facilities Auckland, a charitable trust and one of sixsubstantive Auckland Council Controlled Organisations.RFA supports Auckland Council's vision for Auckland as a vibrant, dynamic,international city by providing a regional approach to running and developingAuckland's arts, culture and heritage, natural environment, leisure, sports andentertainment sectors.RFA's role includes:• advancing the social and cultural well-being of Aucklanders• contributing to the growth of the Auckland economy• being trusted stewards of our venues and collectionsRFA does this by:• assisting Auckland Council in the delivery of the Auckland Plan andits Development Strategy with the equitable provision of cultural,heritage and lifestyle opportunities in the everyday lives ofAuckland's residents and visitors. This is facilitated through RFA'smanagement of assets and the funding decisions made by RFA tosupport cultural and social activities.• taking a regional perspective to the provision of social and communityinfrastructure• recognising Government as a strategic partner and aligning withpolicy and funding for arts, culture, heritage and cultural institutionsthat is targeted at the regional level.• promoting Auckland's Māori identity as Auckland's point ofdifference in the world and lifting Māori social and economicwell-being by developing new economic opportunities with Māoribusiness interests.RFAL's status[45] We agree with the appellants that the Judge's focus on the wording ofthe Organisations Order and the Trust Deed obscured an important aspect. The overallscheme of the LGA 2002 and LGA 2009 is that some local governmentdecision-making will be undertaken by CCOs. Whilst policy considerations andobjectives are set by the local authority and CCOs are subject to governance by thelocal authority, CCOs may make decisions that would otherwise be made by the localauthority.[46] In the case of the Auckland Council, a convenient place to start is the Reportof the Royal Commission on Auckland Governance, which formed the basis for thereorganisation of the Auckland Council.33 The Commission considered the functionand effectiveness of CCOs under the LGA 2002 at some length and concluded that:21.45 The Commission anticipates that in future the Auckland Council'smajor commercial trading and infrastructure activities as set out below will beundertaken through CCOs.21.46 For the Auckland Council to plan and deliver the infrastructure andservices to meet its requirements, it will need access to the best commercialand engineering expertise and resources. CCO structures and boards ofdirectors can bring these required skills and expertise.[47] The Commission considered that six major commercial infrastructure CCOswould be required. One would manage major events facilities, including the BruceMason Centre.34 These CCOs would operate at arm's length from the AucklandCouncil, have independent professional boards that would be accountable for theirperformance and be subject to best commercial governance and reporting practices.3533 Peter Salmon, Margaret Bazley and David Shand Royal Commission on Auckland Governance(March 2009).34 At [21.48].35 At [21.54].[48] The LGA 2009, Organisations Order and Vesting Order reflect theseexpectations. The scheme of the reorganisation is for SCCOs such as RFAL to takefull responsibility for the relevant infrastructure. We do not agree that the statutoryobjective of the Trust to support the vision of Auckland indicates some lesser role.The vision RFAL is charged with supporting is very wide and, self-evidently,encompasses facets of the city entirely divorced from the scope of its activities. Moreimportant in the present case are the purposes of RFAL set out in the Trust Deed atsubcls 3.2 (c), (d) and (e); these identify the specific ambit of RFAL's activities. Inour view RFAL's purposes do not indicate that the nature of its operation is merelysupportive but, rather, they show that RFAL is independently responsible for allaspects of the operations that fall within its purview. Given that the assets in questionare legally vested in RFAL, its purposes to provide, promote, operate, develop andmaintain those assets could hardly be wider.[49] Nor do we consider that the Trust's statutory obligation to achieve theobjectives of its shareholders as specified in the statement of intent36 conveys somelesser role for the Trust, with the Council as the "deciding" entity and the Trust's rolebeing simply to manage. That view would be entirely inconsistent with the fact that itis RFAL that owns the assets and the Council that is required either to agree to ormodify the statement of intent.37 The scheme contemplates that, once the Council hascommitted itself to certain objectives (by agreeing to the statement of intent), the Trusthas both the power and obligation to achieve those objectives. Subject only togovernance for the purposes of ensuring compliance with the statement of intent, andto policy guidance in the form of the accountability policy, the long-term plan and anyother relevant plans or strategies, the decision-making power in relation to the subjectassets lies with RFAL.[50] We agree with the appellants' submission that, in relation to the assets it holds,RFAL stands in the shoes of the Auckland Council.36 LGA 2002, s 59(1)(a).37 Section 65(2).Is the decision to cancel reviewable and on what basis?[51] The fact that RFAL was the Council's agent for all relevant aspects ofmanagement of the Bruce Mason Centre does not, in itself, mean that the decision tocancel is reviewable; that question turns on whether the power RFAL was exercisingwhen it cancelled the event was, in substance, public. The management of such anasset entails all manner of decisions. Some are prosaic — maintenance, cleaning,catering, for example. They are plainly not reviewable because they have no publiccharacter. But the appellants say that the decision to cancel the VHA is reviewablebecause it relates to a service that local governments have traditionally provided, i.e.town halls and similar venues for public meetings and debates. It is, in substance,public and, for BORA purposes, made pursuant to a public function or power incircumstances that engage BORA rights. Key to this submission are the value ofpublic discourse and RFAL's role in controlling a venue used for that purpose.[52] It has now long been the case that the reviewability of a decision depends onthe nature of the decision rather than the nature (public or private) of thedecision-maker. In Royal Australasian College of Surgeons v Phipps this Court saidthat:38Over recent decades Courts have increasingly been willing to review exercisesof power which in substance are public or have important publicconsequences, however their origins or the persons or bodies exercising themmight be characterised The Courts have made clear that in appropriatesituations, even although there may be no statutory power of decision or thepower may in significant measure be contractual, they are willing to reviewthe exercise of the power [53] The approach is essentially the same in relation to decisions that engageBORA, which applies only to acts done by the legislative, executive or judicialbranches of government or by "any person or body in the performance of any publicfunction, power or duty conferred or imposed on that person or body by or pursuantto law".39 The approach taken in cases decided in the BORA context is to focus onthe nature of the act in issue. In Ransfield v Radio Network Ltd, which concerned the38 Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 11–12, citing R vPanel on Take-overs and Mergers, ex parte Guinness plc [1990] 1 QB 146 (CA) at 159–160. Seealso Wilson v White [2005] 1 NZLR 189 (CA) at [21].39 BORA, s 3(b).reviewability of a decision by a commercial radio station to ban individuals fromaccess to its talk-back programme, Randerson J observed that:40Given the many and varied mechanisms modern governments utilise to carryout their diverse functions, no single test of universal application can beadopted to determine what is a public function, duty or power under s 3(b). Ina broad sense, the issue is how closely the particular function, power, or dutyis connected to or identified with the exercise of the powers andresponsibilities of the state. Is it "governmental" in nature or is it essentiallyof a private character?[54] The Judge went on to identify a number of helpful indicia: whether the entityis publicly owned or is privately owned and exists for private profit; whether thesource of the function, power or duty is statutory; the extent and nature of anygovernmental control; the extent of public funding in respect of the function in issue;whether the entity effectively stands in the shoes of the government in exercising thefunction, power or duty; whether the function, power or duty is being exercised in thebroader public interest as distinct from merely being of benefit to the public; whethercoercive powers analogous to those of the state are conferred; whether the functions,powers or duties being exercised affected the rights, powers, privileges, immunities,duties or liabilities of any person; whether the powers being exercised are extensiveor monopolistic; and whether the entity is democratically accountable.41[55] Ms Anderson, for the respondents, accepted the correctness of these principlesgenerally but said that RFAL's decision to cancel was not one that was, in substance,public and nor was RFAL acting in the performance of a public function when it madethe decision. She argued that the decision was made in a commercial context (astandard contract for venue hire) and that commercial decisions are reviewable onlyin limited circumstances, none of which apply here. This submission rested on theline of cases beginning with Mercury Energy Ltd v Electricity Corporation of NewZealand Ltd, in which the Privy Council considered that, whilst the decisions of astate-owned enterprise could be the subject of judicial review:4240 Ransfield v Radio Network Ltd [2005] 1 NZLR 233 (HC) at [69(f)], endorsed in Low VolumeVehicle Technical Assoc Inc v Brett [2019] NZCA 67, [2019] 2 NZLR 808 (CA) at [25].41 At [69(g)].42 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC) at391.It does not seem likely that a decision by a state-owned enterprise to enter intoor determine a commercial contract to supply goods or services will ever bethe subject of judicial review in the absence of fraud, corruption or bad faith.[56] In cases decided since Mercury Energy, however, this Court and the SupremeCourt have signalled that the circumstances in which judicial review is available inrespect of contractual decisions by public bodies is not so narrow.[57] Lab Tests Auckland Ltd v Auckland District Health Board concerned thetendering process adopted by three district health boards for the provision of pathologyservices.43 The incumbent but unsuccessful tenderer challenged the outcome on thegrounds of procedural unfairness in the tendering process (alleging a conflict ofinterest by the successful tenderer). Arnold J, writing for the majority, considered thatMercury Energy indicated that the courts will intervene by way of judicial review inrelation to contracting decisions made by public bodies in a commercial context inlimited circumstances, though that is subject to context.44 On the question of contexthe said later that:[85] In assessing the standard of review (or scope of the proceduralobligations) to be applied, it is necessary to look at the nature of the publicbody, the particular function being performed, the context within which thatfunction is being performed and what it is said has gone wrong. [91] Clearly, judicial review will be available where there is fraud,corruption or bad faith. Further, we accept, as a matter of principle, that itmay be available in analogous situations, such as where an insider withsignificant inside information and a conflict of interest has used thatinformation to further his or her interests and to disadvantage his or her rivalsin a tender. In such a case it may be that the integrity of the contracting processhas been undermined in the same way as in the case of corruption, fraud orbad faith. [58] In reaching that view, the Court expressly rejected the applicants' effort toextend the Mercury Energy formulation to encompass any other material departurefrom accepted public sector ethical standards, commenting that such "open-endedformulation is not, in our view, consistent with the authorities, or, in the present case,with the statutory context".4543 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776.44 At [57]–[59].45 At [92].[59] In Ririnui v Landcorp Farming Ltd, however, the Supreme Court held thatjudicial review of a commercial decision by a state-owned enterprise, Landcorp, oughtnot to be limited to the situations contemplated by Mercury Energy because of theparticular context in which the decision was made.46 The case concerned a challengeto Landcorp's decision to sell a block of land following erroneous advice fromthe Office of Treaty Settlements that it did not require the land for any Treatysettlement. The parties had not challenged the position in Lab Tests regarding thelimited circumstances in which the decision of a state-owned enterprise could bereviewed. Nevertheless, the majority of the Supreme Court observed that:47 even if that proposition is accepted, it does not necessarily apply to allcontracting decisions made by state-owned enterprises. We see the presentcase as falling outside the general proposition because we do not accept thatthis was an ordinary commercial transaction, given the special context offormer Crown land, the Treaty and Māori interests.[60] Attorney-General v Problem Gambling Foundation of New Zealand was alsodecided in the context of a procurement process, this time by the Ministry of Healthin respect of public health services to address problem gambling.48 This Courtconfirmed that judicial review of a procurement contract entered into by a public bodyis generally not available unless the applicant can point to fraud, corruption, bad faithor like conduct. Winkelmann J (as she then was) reiterated that:[41] where the decision the subject of review is a procurement(contracting) decision made in a commercial context, that is the starting pointfor consideration of the appropriate scope of review. It follows the primafacie position will be that only narrow review is appropriate, subject to anyrelevant contextual matters indicating a need for the High Court to havebroader powers of review.[41] This Court identified relevant contextual matters in Lab Tests Tothose we would also add the nature of the interest sought to be protected bythe party seeking judicial review. We say this because it may be that a decisiontaken in a commercial context by a state actor does entail wider public interestconsiderations, suggesting that a broader scope of review will be appropriate But to avail itself of that broader scope of review, the applicant for reviewmust raise issues relevant to that public interest and not just be a disappointedcommercial party, seeking to take advantage of public remedies in acommercial context.46 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056.47 At [65].48 Attorney-General v Problem Gambling Foundation of New Zealand [2016] NZCA 609, [2017] 2NZLR 470.(Footnote omitted).[61] As Ms Anderson argued, the immediate context of the cancellation wasunquestionably commercial. The VHA was for the hire of a theatre-style venue atcommercial rates for a performance that could only be accessed by ticket-holders,where the cost of the tickets was set on a commercial basis and the performance hadother commercial features such as the offering of merchandise. The venue hire wasagreed on the basis of a standard hire agreement and in accordance with RFAL's usualpractices. Once the suitability of the venue (e.g. in terms of location and capacity) andavailability were established, only basic information was obtained — contact details,the name of the person authorised to enter the hire agreement and generic informationabout the nature of the event. In this case, the account manager concerned only knewthat there would be two keynote speakers and a "question and answer" session.The standard form agreement contained provisions permitting RFAL to cancel inspecified circumstances, which included where the management or control of the eventcould lead to danger or injury or damage to any person or damage to property.[62] But beyond the contract itself, the wider context is not comparable to the casesin which the narrow approach to the availability of judicial review has been taken.RFAL is not required to administer its assets on a competitive commercial basis (aswas the position with the state-owned enterprises in Mercury Energy and Ririnui).49Rather, under the Trust Deed it is required to administer its assets on a prudentcommercial basis so that they are "operated as successful, financially sustainablecommunity assets". Although RFAL makes it clear in its statement of intent that it"operates a commercial business model" and most of the Trust's operating revenue(around 70 per cent) comes from commercial activities, including venue hire, thebalance comes from funding by the Auckland Council and not all of RFAL's venuesare operated with the same degree of commerciality; its aim is to maximise profits inorder to cover costs and be able to accommodate non-commercial activities, includinglow-cost and free events. Mr Macrae, the director of Auckland Live, said in hisevidence that "RFAL's decisions to accept a booking are commercial decisions, andgenerate revenue to enable RFA to carry out its charitable purposes".49 State-Owned Enterprises Act 1986, s 4.[63] Nor is the nature of the VHA quintessentially commercial in the same way asthe tendering processes in Lab Tests and Problem Gambling. Those contracts wereentered into to enable the district health boards and the Ministry of Health to fulfiltheir respective statutory functions of providing health services and implementing anintegrated problem gambling strategy. In comparison, the hiring out of venues is notcollateral to RFAL's core statutory function of managing the assets vested in it but partof that core statutory function; the venues that Auckland Live manages existspecifically to be used for live performances and the usual way of achieving that is byhiring them out. Moreover, the effect of cancelling a VHA is not limited to thosedirectly interested in the contract. Unlike Lab Tests and Problem Gambling, where thedispute was between the decision-makers and the unsuccessful tenderers, cancelling avenue directly affects those members of the public who are (or who planned to be)ticketholders. It also has the indirect effect on prospective users of the venue whomust assess how secure they will be if they hire the venue in the future.[64] Thirdly, and at the heart of the appellants' case, RFAL's statutory function ofproviding venues for live performances engages rights protected at common law andunder BORA.50 The appellants rely on the BORA-protected rights to freedom ofexpression,51 thought,52 peaceful assembly,53 association54 and freedom fromdiscrimination.55 They say that these rights were mandatory considerations, that RFALfailed properly to consider them and the decision to cancel the event was inconsistentwith them. We consider that only the rights of freedom of expression and peacefulassembly are engaged.56[65] Under s 14 of BORA, the right to freedom of expression includes the right toseek, receive and impart information and opinions of any kind in any form. This rightis recognised as one of the essential foundations of a democratic society.57 The breadth50 It was not contended that the common law rights relied on would add anything to the appellants'case and, for convenience, we refer only to the BORA rights.51 BORA, s 14.52 Section 13.53 Section 16.54 Section 17.55 Section 19.56 Later we explain why we consider that the other rights relied on are not engaged.57 R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, [2015]AC 945 at [13] per Lord Sumption.of the right has been described as being "as wide as human thought and imagination".58It includes non-verbal and symbolic conduct as well as expression through speech andwriting, provided that the conduct conveys, or attempts to convey, something toothers.59 By its nature, live performance — whether theatre, music, dance, debate orlecture — involves forms of expression protected by BORA. The present caseconcerns the type of expression readily understood as protected by BORA; thespeakers wished to express their political views and those interested in their views hadthe right to hear them being expressed. We consider it incontrovertible that the rightto freedom of expression was engaged when RFAL decided to cancel the event.[66] We also accept that the right to peaceful assembly was engaged. This righttends to be considered in relation to those who wish to protest, rather than those whoare the object of protest.60 However, those wishing to assemble for a purpose likelyto attract protest are equally entitled to do so as those protesting. The right to peacefulassembly may be viewed as a corollary to the right to freedom of speech.61 In thecircumstances of this case, which are akin to those in Verrall v Great YarmouthBorough Council,62 we think that is the proper approach. We add, however, that wedo not see this right as making any practical difference to the obligations on RFAL; inthe circumstances of this case the right to peaceful assembly involves the sameconsiderations as the right to freedom of expression.[67] Society places a high value on freedom of expression and RFAL has the powerto control public assets that are used for many forms of expression. The decision tocancel was made pursuant to a core statutory function and would directly affect theBORA rights of members of the public who wished to attend the event. That is theproper context in which to view RFAL's decision to cancel the VHA. It ought not tobe treated as merely a commercial decision subject to the same limitations for reviewas apply to ordinary commercial decisions that have only commercial consequences.58 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [15].59 Attorney General v Smith [2018] NZCA 24, [2018] 2 NZLR 899 at [46].60 See, for example, Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91; Morse v Police [2011]NZSC 45, [2012] 2 NZLR 1; and Police v Beggs [1999] 3 NZLR 615 (HC).61 Watchtower Bible & Tract Society v Mount Roskill Borough [1959] NZLR 1236 (SC) at 1242.62 Verrall v Great Yarmouth Borough Council [1981] QB 202 (CA).[68] We therefore differ from Jagose J and find that RFAL's decision to cancelthe VHA falls outside the parameters contemplated by Lab Tests and ProblemGambling. It should be treated as occupying a special position and reviewable bothon the usual public law principles and subject to s 3(b) of BORA.Did the decision to cancel have important public consequences?[69] In the event that the argument regarding the public nature of the decision andthe application of BORA failed, the appellants argued as an alternative that thedecision is reviewable on the basis that it had important public consequences, relyingon the approach taken in Dunne v CanWest TVWorks Ltd which concerned the decisionby a private television station to exclude a minor political party from a pre-electiondebate.63 Ronald Young J considered that by undertaking the debate, which had theprospect of significantly influencing the outcome of the election, the television stationhad put itself into the public arena and, applying the Phipps "impact test", consideredthat the decision to include only some political leaders would have important publicconsequences.64 The Judge concluded that "this is one of those comparatively rarecases where a private company is performing a public function with such importantpublic consequences that it should be susceptible to review".65[70] However, our conclusion regarding RFAL's status means that it is unnecessaryto consider this argument.Common callings[71] Our conclusion also makes it unnecessary to address the appellant's argumentthat the decision is reviewable by analogy with the common law doctrine of "commoncallings".63 Dunne v CanWest TVWorks Ltd [2005] NZAR 577 (HC).64 At [34].65 At [36].Issue 2: was the decision unlawful by reason of it being irrational, perverse orarbitrary?The issues[72] The reason RFAL gave for cancelling the venue hire agreement was concernthat RFAL would be unable to discharge its obligations under the Health and Safety atWork Act 2015, either at all or at a reasonable cost. The appellants say that the decisionto cancel was irrational, perverse and arbitrary (or in other words, unreasonable) andtherefore unlawful because (1) it was made prematurely and without adequateinformation about security arrangements, (2) RFAL failed to follow its own health andsafety policy, (3) the decision represented an effective "heckler's veto" and (4) RFALmisdirected itself on the nature of the free speech rights that were engaged.The events leading up to the decision to cancel[73] The events leading up to the decision to cancel were the subject of extensiveevidence from RFAL personnel. On 13 June 2018 a director of Axiomatic, Mr Izaak,contacted RFAL. Wendy Pafalani, an account manager, spoke to Mr Izaak andarranged the booking for 3 August 2018. Ms Pafalani deposed that Mr Izaak saidnothing about likely security risks. He did not initially tell her the names of theperformers, he only said there would be two keynote speakers. He did not give detailsabout the arrangements that had been made for the Australian leg of the tour. Anotherdirector of Axiomatic, Mr Pellowe, provided an affidavit and asserted that Mr Izaakhad provided some details of the security arrangements in place for the Australian tour.Ms Pafalani does not accept that and produced the notes she made of the conversation,which say nothing about security. Mr Izaak did not provide any affidavit in response.In these circumstances, we proceed on the basis that Ms Pafalani's evidence is correct.[74] The terms of the VHA required Axiomatic to file a health and safety plan nolater than 10 working days prior to the event, i.e. by 19 July 2018. Axiomatic was stillworking on that plan when the decision was made to cancel the event and the plan (ordraft) was never provided to RFAL.[75] Soon after the tickets went on sale on 29 June 2018, RFAL became aware ofcomplaints about the event. Initially there were complaints in the form of telephonecalls and emails. These developments were monitored by Mr Crighton, the Managerof Presenter Services at Auckland Live, who had approved the VHA and signedthe contract on behalf of Auckland Live. Mr Crighton checked online to find outwhich venues were being used in Australia so that he could talk to the managers ofthose venues. However, he could find only ticket prices; there were no details ofvenues. At that stage he thought that there were only a small number of complaints,which was not uncommon for political speaker events. He decided to monitor thelevel of complaints and speak directly to anyone who wanted to complain to AucklandLive.[76] By 5 July 2018 the number of complaints, including by Twitter and Facebookposts, had increased. An online petition to cancel the event had been started.Mr Crighton thought it prudent to flag the event to Auckland Live's Manager of Safetyand Security, Dean Kidd. Mr Kidd was to gather further information and report back,including on risk rating and mitigation strategies. As part of that Mr Kidd planned tocontact the police to check whether the event was on its radar and to discuss securityissues.[77] By the afternoon of 5 July 2018 Mr Crighton still considered that thecomplaints were not out of the ordinary for an event that involved political discussionsbut thought it prudent to find out more. As part of establishing what sort of securityprecautions might be needed, he looked again at the Axiomatic website to find outwhat venues were being used for the Australian leg of the tour. He wanted to find outhow other venues were managing the security concerns and planned to contact themto discuss that. This is a course he had taken in relation to previous events thatattracted public complaints. However, still none of the Australian venues wereidentified on the Axiomatic website.[78] Mr Crighton asked Ms Pafalani to contact Axiomatic for information about theAustralian venues. The response was that the venues were not available online butonly advised to ticket holders 24 hours before the event. This was very unusual inMr Crighton's experience; it had never happened with any event in which he had beeninvolved. Mr Crighton said, "I became concerned that there was more to this than justthe odd public complaint". Mr Crighton raised his concerns with the director of RFAL,Mr Macrae.[79] On the evening of 5 July 2018, Auckland Live received an email fromAuckland Peace Action which expressed the view that hosting the event might be abreach of the Human Rights Act 1993, outlined facts about the views previouslyexpressed by Ms Southern and Mr Molyneux and said that "there is simply no otherchoice but to refuse the use of the venue for these purposes".[80] Just after 9 am on 6 July 2018, Auckland Live received a copy of a press releaseissued by Auckland Peace Action that morning. It stated that "If [Stefan Molyneuxand Lauren Southern] come here, we will confront them on the streets. If they come,we will blockade entry to their speaking venue".[81] At about 9.15 am on 6 July there was a meeting involving Mr Macrae,Mr Crighton and other Auckland Live personnel to discuss the concerns arising fromthese developments and what action should be taken. By the end of the meetingMr Macrae had formed the preliminary view that he would need to cancel the eventon health and safety grounds. Mr Macrae said that it was uncommon for RFAL tocancel a VHA and that it does not do so because the content of an event may becontroversial or offensive to some people. It has no formal policy to assess the contentof a venue booking; its only interest is in facilitating a venue and ensuring that theevent proceeds without risk of injury or damage to its venues.[82] Mr Macrae identified a number of factors as relevant to the assessment of thelikely risks if the event proceeded. The first was the location of the venue givenAuckland Peace Action's signalled intention to blockade the event. Mr Macrae hadprevious experience with a protest blockade involving Auckland Peace Action andconsidered there was a reasonable likelihood of disruptive protests, potentially both inand outside the venue. The Bruce Mason Centre occupies a corner site in a busy partof Takapuna. Its direct street frontage gives onto a relatively narrow street where thereare other businesses, including cafés and restaurants. Mr Macrae considered that theroad would need to be closed and barricades erected for crowd control. This wouldadd an estimated $30,000 to the cost of the event for Auckland Live in terms of securitystaff, fencing, traffic management and provision for business disruption to localrestaurants and other businesses. No bond or guarantee had been obtained fromAxiomatic because, on the information provided by the promoter, there had been noreason to think that would be needed.[83] Secondly, although only 68 tickets had been sold at that point, tickets couldcontinue to be purchased prior to the event, including by protestors. Mr Macraeconsidered what would happen if there were between 100 and 500 ticket holders insidethe venue, along with potentially hundreds of protestors outside the venue. Thisrequired consideration of what would happen if the venue had to be evacuated, forexample in the event of a bomb threat or smoke alarms being triggered, and access foremergency vehicles. Mr Kidd was consulted; he considered there was a high degreeof risk to safety in the event of evacuation.[84] Also relevant was the fact that Axiomatic had taken a different approach topublicising the venue in Australia. Mr Macrae considered the fact that the venue hadbeen publicised in New Zealand had a direct and limiting effect on how the securityconcerns could be managed in relation to the Bruce Mason Centre.[85] By 11 am, having considered the information before him, Mr Macrae made thedecision to cancel the event. Clause 13.2 of the VHA entitled RFAL to cancel inspecified circumstances:13.2 Cancellation by Us: We may cancel Your booking and terminate thisAgreement at any time by notice in writing to You (with immediate effect) ifany of the Default Circumstances apply.[86] "Default Circumstances" was defined in the contract as including where:We consider that the management or control of the Event is inadequate and/orthe behaviour of any of Your Representatives could lead to:(i) danger or injury to any person;(ii) damage to any property (including the Venue);[87] Mr Macrae advised Axiomatic of the decision to cancel by telephone on 6 July2018. A formal letter of advice was sent on 10 July 2018. It did not specify cl 13.2but it is clear from the terms of the letter that this was the basis for the decision:Since the time the Agreement was entered into, RFA has become aware ofinformation that has led us to the conclusion the Event cannot be hosted at anRFA venue, without posing an unacceptable risk to the security and safety ofthe presenters, RFA staff, contractors, and patrons attending the Event.Was the decision made prematurely and without adequate information?[88] Mr Hodder submitted that the decision was unreasonable because it was madeprematurely and without sufficient information. He relied on this Court's statement inCREEDNZ Inc v Governor-General that the question for the Court was:66 did the [decision-maker] ask himself the right question and take reasonablesteps to acquaint himself with the relevant information to enable it to answerit correctly?[89] In argument, Mr Hodder accepted that RFAL had asked the right question;Mr Macrae said in his affidavit that he considered the free speech issue and how tobalance that interest with RFAL's obligations regarding the health and safety of staff,patrons, protestors and the wider community. The criticism was, rather, that thedecision had been made without proper consultation with Axiomatic, or advice fromthe police, as to the security risk and appropriate steps that could be taken. It shouldtherefore be regarded as having been made on the basis of a material mistake or withdisregard of a material fact.67[90] The respondents maintain that the decision was reasonable given the availableinformation and relies as a cross-check for its reasonableness on expert evidence froman experienced security consultant, Mr Collins. He expressed the view that theincrease in risk between 3 and 6 July 2018 and the increase in awareness of thevulnerability of the venue made the event as planned unsuitable without significantadditional work regarding security, safety and traffic management.66 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 197, citing Secretary of State forEducation and Science v Tameside Metropolitan Borough Council [1977] AC 1014 (HL) at 1064per Lord Diplock.67 Harry Woolf, Jeffrey Jowell, Catherine Donnelly and Ivan Hare (eds) De Smith's Judicial Review(8th ed, Sweet & Maxwell, London, 2018) at [11-051].[91] Mr Hodder pointed out that Mr Kidd had contacted the police on the morningof 6 July 2018 for the purposes of gathering further intelligence in order to advise onrisk and mitigation strategy. That exercise had not been completed by the time thefinal decision to cancel was taken on the morning of 6 July 2018. He also pointed toMr Macrae's advice to Axiomatic of the decision to cancel in which he said "we'vehad some early conversations with the police" whereas, in fact, no conversations hadactually taken place at that point. Notably, the police themselves had not received anythreats in relation to the event.[92] We do not see the failure to wait for input from the police as undermining thebasis for the decision to cancel. It seems clear from the evidence that the concern wasover the practicalities, including cost, of protecting the venue, managing the disruptionto local businesses and ensuring the safety of those inside the venue in the event ofevacuation. These were not necessarily matters on which police input would haveassisted and we note that the appellants do not identify any advice or action likely tohave been provided by the police that could have affected the decision. There was nochallenge to Mr Crighton's estimate of the cost that would be involved and in thatregard it was relevant that Axiomatic had not been asked for a bond to cover securityor damage costs.68[93] The second aspect was RFAL's failure truly to engage with Axiomatic aboutits ability to manage the event before deciding to cancel. During the telephone callfrom Mr Macrae to Mr Pellowe advising of the decision to cancel, Mr Pellowe andAxiomatic's head of security asked whether Axiomatic's security team could doanything to address the security concerns. Mr Macrae did not take up that invitation,indicating that the decision was already made. We do not regard Mr Macrae's refusalas making the decision unreasonable. It is evident that the level of opposition, andtherefore risk, had escalated over the course of the week since the tickets went on sale.What had started out as a small number of disparate complaints by members of thepublic had become a concerted plan by organised protestors to disrupt the event.Mr Collins makes the point that the escalation in the level and nature of complaints68 Interestingly, Mr Pellowe filed a further affidavit describing the security issues surrounding theMelbourne event that had proceeded on 20 July 2018 with private security and heavy policepresence, including riot police, mounted police and a helicopter. The police had quoted a figureslightly under AUD 68,000 for the security services at the event, which Axiomatic refused to pay.about the event increased the risk of the venue being targeted even in advance of thescheduled date. We think that it was reasonable for RFAL to be influenced by the factthat when Axiomatic made the booking, it did not disclose the controversial nature ofthe event and the steps taken in Australia to avoid advance publicity. In our view,RFAL was entitled to make its own assessment of the risk and of the practical stepsthat would be required to manage that risk based on the knowledge and resources thenavailable to it.Did RFAL fail to follow its health and safety policy?[94] RFAL had a written Event Health and Safety Policy. It provided for health andsafety requirements to be communicated to the client 30 days prior to the event, andfor a health and safety plan to be received from the client two weeks prior to the event,with a process for escalation if the information is not provided. The stated purpose ofthe policy was to set the responsibilities and guiding principles to ensure that eventsare planned, designed and executed safely and to meet responsibilities under therelevant workplace health and safety legislation. It was intended to cover peopleworking at the venue or in a particular show or patrons attending an event. It was notintended to cover public safety in a broader sense.[95] It is evident from the timeline described that RFAL did not follow thisprocedure. Mr Hodder submitted that this failure in itself made the decisionunreasonable. He relied on Chiu v Minister of Immigration in which this Courtobserved that in most cases the misinterpretation of voluntarily adopted rules orguidelines will vitiate the decision on the ground that it constitutes an error of law.69But the Court also noted that the consequences of misinterpretation depend on context.[96] We see the circumstances of this case as entirely different to Chiu. The policywas not prepared pursuant to any legislative requirement but was intended as guidancein relation to compliance with RFAL's obligations under the Health and Safety inEmployment Act 1992.70 If, on a reasonable assessment, compliance with thoseobligations required departure from the policy, RFAL was entitled to depart from it.7169 Chiu v Minister of Immigration [1994] 2 NZLR 541 (CA) at 550.70 Now repealed and replaced by the Health and Safety at Work Act 2015.71 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington,For the reasons we have already discussed, the circumstances were such as to justifydeparting from the policy. The booking had been made at quite short notice and, amonth from the scheduled date, RFAL discovered that there were aspects about thetour that it had not previously appreciated. The level of risk had escalated significantlyover a matter of days. That risk went beyond those directly involved in the venue asworkers, performers or patrons but extended to members of the public and protesters.RFAL was entitled to make its own assessment as to what was required in terms ofcompliance with its obligations under the relevant health and safety legislation.The "heckler's veto"[97] The third basis on which the appellants rely as showing that the decision tocancel was unreasonable was that the outcome reflected the so-called "heckler's veto".This phrase describes the situation in which those wishing to exercise their free speechrights are prevented from doing so by actual or threatened protests, particularly threatsof violence.72 Mr Hodder submitted that a decision that resulted in such an outcomewould be unreasonable because it would result in a perverse outcome.[98] The concept of the heckler's veto has a specific associated jurisprudence inthe United States in relation to the First Amendment right to freedom of expression.Mr Hodder submitted that the same principles should apply in New Zealand.[99] In the US the principles developed in response to the heckler's veto reflect thefreedom of expression as guaranteed by the First Amendment. Specifically, thewording of the First Amendment precludes any law abridging the freedom of speech,so that any limitations on the First Amendment right must be internal to the provisionitself.73 Self-evidently, this has influenced the basis on which limitations on freespeech are permitted. We take as an example the decision in Bible Believers v WayneCounty, Michigan, which Mr Hodder cited.74 That case concerned a civil actionagainst the police brought by members of a Christian evangelical group whose effortsto speak during a festival celebrating Arab culture were shut down in the face of2018) at [15.74].72 The phrase is attributed to the American scholar Harry Kalven.73 This feature is discussed by L'Heureux-Dubé J in Committee for the Commonwealth of Canada vCanada (1991) 1 SCR 139 at [82]–[87].74 Bible Believers v Wayne County, Michigan 805 F 3d 228 (6th Cir 2015).heckling from a group of hostile festival-goers. The United States Court of Appeals(Sixth Circuit) reviewed the cases where the extent to which actions constituting aheckler's veto might justify limiting First Amendment rights had been considered.Noting that it is a "fundamental precept of the First Amendment" that the governmentcannot favour the right of one private speaker over another, the Court described theheckler's veto as a "type of odious discrimination" designed to exclude a particularpoint of view from "the market-place of ideas".75 In the context of the FirstAmendment right to freedom of expression, it considered that:76In a balance between two important interests—free speech on one hand, andthe state's power to maintain the peace on the other—the scale is heavilyweighted in favour of the First Amendment. Maintenance of the peaceshould not be achieved at the expense of the free speech. The freedom toespouse sincerely held religious, political, or philosophical beliefs, especiallyin the face of hostile opposition, is too important to our democratic institutionfor it to be abridged simply due to the hostility of reactionary listeners whomay be offended by a speaker's message. If the mere possibility of violencewere allowed to dictate whether our views, when spoken aloud, aresafeguarded by the Constitution, surely the myriad views that animate ourdiscourse would be reduced to the "standardization of ideas by [the] dominant political or community groups." Democracy cannot survive sucha deplorable result.When a peaceful speaker, whose message is constitutionally protected, isconfronted by a hostile crowd, the state may not silence the speaker as anexpedient alternative to containing or snuffing out the lawless behaviour ofthe rioting individuals.[100] And as to the practical implications of that principle:77 before removing the speaker due to safety concerns, and therebypermanently cutting off his speech, the police must first make bona fide effortsto protect the speaker from the crowd's hostility by other, less restrictivemeans.[101] The Canadian courts have been cautious in relation to the possible applicationto Charter freedoms of principles developed in the very different environment of theUS. In Committee for the Commonwealth of Canada v Canada, the Supreme Courtconsidered whether regulations that would prohibit the handing out of politicalpamphlets in an airport were a permitted limitation on the Charter right to freedom of75 At 247–248.76 At 252.77 At 255.expression. L'Heureux-Dubé J considered the appropriateness of recourse toAmerican jurisprudence in this area:78The United States Supreme Court has long been grappling with theformulation of an appropriate test, and in the process it has created a wholeseries of standards that have been applied somewhat unpredictably over theyears. We must recognise the differences in approach which result from outdistinctive constitutional documents.[102] The Judge then quoted from the paper "Freedom of Expression: Is It All JustTalk?" by A Wayne MacKay:79What if anything should Canadian courts do with these various rationalesevolved in the United States? As a first preliminary matter, account should betaken of the significant political and social differences between the twocountries and how this has been reflected in their historical approaches tofreedom of expression and the press. As a second preliminary matter, thelinguistic differences between the respective guarantees of freedom ofexpression should be considered, and in particular the European roots of theCanadian provision—section 2(b) of the Charter.On a more substantive basis the American rationales should only be used tothe extent that they are useful for advancing the purposes and values of theCanadian document.[103] She concluded:80Hence we should be particularly vigilant to formulate a "made in Canada"standard, that is sensitive to the legal, sociological, and political characteristicswhich inspired the Canadian Charter of Rights and Freedoms and itssubsequent development.[104] Mr Hodder drew our attention to UAlberta Pro-Life v Governors of theUniversity of Alberta as an example of conduct considered in Canada as a heckler'sveto scenario.81 The case concerned the decision of a university to impose conditions(including meeting the cost of security) on a pro-life student group that wished to holdan anti-abortion event on university grounds. A previous similar event attractedsubstantial counter-protests. The cost of security would have precluded the groupfrom holding the event and it complained that requiring it to meet that cost amounted78 Committee for the Commonwealth of Canada v Canada, above n 73, at [82].79 At [86], citing A Wayne MacKay "Freedom of Expression: Is It All Just Talk? (1989) 68 Can BarRev 713 at 719.80 At [87].81 UAlberta Pro-Life v Governors of the University of Alberta 2020 ABCA 1, (2020) 6 WWR 565.to a denial of their right to freedom of expression. The Court implicitly acknowledgedthe concept of the heckler's veto:82Although the University says the concept of the heckler's veto is misplacedhere, the position for the University escalated the status of potential objectorsto not merely being on par with the expresser, but above the expresser'sposition.[105] However, after referring to a number of American cases on this issue, the Courtrejected the principles stated as having relevance to the Canadian context:[180] All that said, it is not appropriate to immigrate AmericanConstitutional notions into this case. The American case law is interesting,but Canadian law is robust enough to figure things out on its own. [181] For example, where a state "action prevents individuals from lawfullyexpressing themselves because their expression might provoke or enrageothers, freedom of expression as guaranteed by s 2(b) is also implicated" On such occasions the debate moves to s 1 of the Charter and whetherreasonable limits meeting that provision have been made out.(Citation omitted.)[106] We turn to the New Zealand position. Mr Hancock, for the Intervener, arguedthat the principle as articulated and applied in the US is not easily reconciled with s 5of BORA, under which the question of limitations on protected freedoms isdetermined by reference to the statutory test of whether they are reasonable limitationsthat can be demonstrably justified in a free and democratic society. Mr Hancocksubmitted that the principle as applied in the US does not reflect the broad range ofinterests and rights that may be taken into account in deciding whether a limit isdemonstrably justified under s 5 and ought not to be regarded as applicable inNew Zealand.[107] The concept of the heckler's veto is one that has general application, includingin the New Zealand context. These days, as Mr Hodder commented, it often findsexpression in the so-called "cancel culture", where disapproval of a particular viewresults in the mass withdrawal of support (cancellation) of public figures, particularlyonline.83 However, as the Canadian courts have recognised, acknowledging the reality82 At [183].83 Merriam Webster Online Dictionary "Cancel Culture" <www.merriam-webster.com>.of this phenomenon does not mean that the principles developed in the US canautomatically be applied in a different constitutional context.[108] Again, the US cases reflect the fact that the wording of the First Amendmentprecludes any limitation on the freedom of expression. The development ofjurisprudence around the extent to which limitations may be permitted is thereforequite different from the New Zealand context, where limitations on the same right areexpressly contemplated by s 5 of BORA. We discuss this aspect in more detail whenwe come to consider whether the decision to cancel was a reasonable limitation on theright to freedom of expression. It is sufficient to say at this stage that in New Zealandthere is no one approach to the inquiry regarding the reasonableness of a limitation.The proper approach and the range of factors taken into account vary with the natureof the decision and the circumstances in which it is made. The principles articulatedin the US context do not fit easily into a s 5 analysis and it is both unnecessary andundesirable to attempt to do so.[109] Therefore, although the concept of the heckler's veto may be used inNew Zealand to describe an outcome where protest or the threat of protest has led tothe curtailment of the exercise of the freedom of expression, it would be unprincipledto treat such an outcome as necessarily perverse. That must depend on whether thelimitation was reasonable for the purposes of s 5; if so, there could be no basis onwhich to conclude that the decision was perverse.Misdirection on the law[110] The final ground on which the appellants maintain that the decision to cancelwas unreasonable was that it was made under a misunderstanding of the appellants'common law rights of free speech and expression (as opposed to the rights affirmedby BORA). This argument rested on the assertion that RFAL decided to cancel theevent against a backdrop of unsubstantiated security concerns, thereby actinginconsistently with the event organisers', the speakers' and the appellants' commonlaw rights. However, in oral argument, Mr Hodder confirmed that any substantivedifferences between the two classes of rights would not have any practical effect inthis case. He simply sought to emphasise that free speech and expression issues wereengaged by both BORA and the common law grounds of review. We accept that thisis the case but, as we have discussed above, we do not consider that RFAL's securityconcerns were unsubstantiated. We therefore see no advantage in exploring this aspectof the argument.Issue 3: was the cancellation an unreasonable limit on the BORA rights engaged?The BORA rights engaged[111] We have already concluded that the rights to freedom of expression andpeaceful assembly were engaged by the decision to cancel the event. However, we donot accept that the other rights relied on are engaged.[112] The right to freedom of thought (which includes the right to adopt and holdopinions without interference) has had limited consideration in New Zealand. InMoonen v Film and Literature Board of Review, the classification of a book asobjectionable was held not to infringe this right.84 Acknowledging that censorshipmay deprive some of the opportunity of forming certain thoughts, the Court pointedout that it did not actually censor thoughts. The right therefore was not engaged.85Mr Hodder relied on academic criticism of that reasoning, namely that censorshipindirectly censored the thoughts that potential readers would have.86 Even if thiscriticism were valid, we are satisfied that it is not material in this case. Potentialattendees had access to the ideas and views being promoted by the speakers, who bothhad a substantial internet presence. People were free to form opinions about thoseideas. We do not accept that being deprived of the opportunity to hear those ideasdiscussed in person infringed the right to freedom of thought.[113] The right to freely associate is, as Ms Joychild QC, for the Intervener,submitted, directed towards the right to form or participate in an organisation, to actcollectively, rather than simply to associate as individuals. In Turners & Growers Ltdv Zespri Group Ltd (No 2), White J, considering the meaning of "association" in theBORA context, cited Baroness Hale of Richmond's statement in R (Countryside84 Moonen v Film and Literature Board of Review, above n 58.85 At [36]–[37].86 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington, 2015) at [14.6.16].Alliance) v Attorney-General that association in this context "protects the freedom tomeet and band together with others in order to share information and ideas and to givevoice to them collectively".87 While the event in this case might have involved theexchange of ideas between individuals, there is no indication of a commonassociational or organisational aim. The right to freedom of association does notappear, therefore, to be engaged and, in any event, this argument adds nothing to theengaged right of freedom of peaceful assembly.[114] The last BORA right relied on is the right to freedom from discrimination onthe grounds of discrimination specified in the Human Rights Act. One of thosegrounds on which discrimination is prohibited is political opinion.88 Discriminationincludes indirect discrimination.89 The appellants say that the decision to cancelindirectly discriminated against them because it put those wishing to attend the eventin a less advantageous position that those who would use the venue for some otherpurpose.[115] An issue arises over the justiciability of this argument, having regard to thisCourt's decision in Winther v Housing New Zealand Corp.90 However, the argumentadvanced by the appellants and the Intervener was not developed and the respondentsdid not address this issue at all. Given our conclusion that RFAL's decision isreviewable on other grounds it is unnecessary to consider this issue.Was the decision to cancel a reasonable limitation on the rights of freedom ofexpression and peaceful assembly?[116] The BORA rights engaged in this case are not absolute; they may be subject tosuch reasonable limits as can be demonstrably justified in a free and democraticsociety.91 In R v Hansen the Supreme Court held that where a BORA right is limitedby legislation, a proportionality analysis is required to determine whether thelimitation is justified under s 5. Under that approach, the limitation must be rationally87 Turners & Growers v Zespri Group Ltd (No 2) (2010) 9 HRNZ 365 (HC) at [72], citing R(Countryside Alliance) v Attorney-General [2007] UKHL 52, [2008] AC 719 at [118].88 Human Rights Act 1993, s 21(1)(j).89 Section 65.90 Winther v Housing New Zealand Corporation [2010] NZCA 601, [2011] 1 NZLR 825.91 BORA, s 5.connected to its objective and impair the right or freedom in question as little aspossible.92[117] As this Court discussed in Taylor v Chief Executive of the Department ofCorrections, however, the position is less clear in relation to administrative decisionsthat infringe a BORA right.93 Taylor concerned the refusal to allow a media interviewof a serving prisoner, the decision having been made pursuant to the discretionconferred on the Chief Executive under the Corrections Regulations 2005. The Courtconsidered the views of commentators that the trend in judicial review ofadministrative decisions that affect BORA-protected rights was towards balancing theright against countervailing considerations rather than a formal proportionalityanalysis. It held that, in the particular context, the balancing approach wasappropriate.94 But the Court expressly eschewed any determination as to whetherreview of administrative decision making under the BORA generally requires a formof proportionality analysis of the type adopted in Hansen.95[118] The appellants did not contend for a formal proportionality analysis. Theysubmitted only that it was incumbent on RFAL to acknowledge the BORA rights thatwere engaged and be "alive" to the BORA implications of its decision.96 Ms Andersonalso invited the approach taken in Taylor on the basis that the circumstances of thiscase could not possibly require a more formal approach than that taken in Taylor.[119] Ms Anderson also relied on the decision of the Supreme Court of the UnitedKingom in R (Lord Carlile of Berriew) v Secretary of State for the HomeDepartment.97 The case concerned the decision to exclude an Iranian dissident fromthe United Kingdom, with the result that she was unable to accept speakingengagements to address issues of human rights and democracy. On the question of92 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [64], [120]–[124], [203]–[205] and [272].93 Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648.94 At [81]–[84], citing Television New Zealand Ltd v Attorney-General (2004) 8 HRNZ 45 (CA),which concerned a media request to interview a person detained pursuant to the Immigration Act1987.95 At [84].96 Relying on Taylor, above n 71, and on the High Court decision in Smith v Attorney-General [2017]NZHC 463, [2017] 2 NZLR 704 at [74] (that decision having been overturned on other grounds:Attorne- General v Smith [2018] NZCA 24, [2018] 2 NZLR 899).97 R (Lord Carlile of Berriew) v Secretary of State for the Home Department, above n 57.how the courts should respond to complaints about the effect of executive decisionson human rights, Lord Sumption made the following observations about thesignificance of the decision-maker's role: 98It does not follow from the court's constitutional competence to adjudicate onan alleged infringement of human rights that it must be regarded as factuallycompetent to disagree with the decision-maker in every case or that it shoulddecline to recognise its own institutional limitations. The executive'sassessment of the implications of the facts is not conclusive, but may beentitled to great weight, depending on the nature of the decision and theexpertise and sources of information of the decision-maker or those whoadvise her. Secondly, rationality is a minimum condition of proportionality,but is not the whole test. None the less, there are cases where the rationalityof a decision is the only criterion which is capable of judicial assessment. Thisis particularly likely to be true of predictive and other judgmental assessments,especially those of a political nature. Such cases often involve a judgment orprediction of a kind whose rationality can be assessed but whose correctnesscannot in the nature of things be tested empirically. Thirdly, where thejustification for a decision depends on a judgment about the future impact ofalternative courses of action, there is not necessarily a single "right" answer.There may be a range of judgments which could be made with equal propriety,in which case the law is satisfied if the judgment under review lies within thatrange.[120] And Lord Neuberger said:99 where human rights are adversely affected by an executive decision,the court must form its own view on the proportionality of the decision, orwhat is sometimes referred to as the balancing exercise involved in thedecision. [W]here, as here, the relevant decision maker has carried out the balancingexercise, and has not made any errors of primary fact or principle and has notreached an irrational conclusion, so that the only issue is the proportionalityof the decision, the court cannot simply frank the decision, but it must givethe decision appropriate weight, and that weight may be decisive. The weightto be given to the decision must depend on the type of decision involved, andthe reasons for it. There is a spectrum of types of decision, ranging from thosebased on factors on which judges have the evidence, the experience, theknowledge, and the institutional legitimacy to be able to form their own viewwith confidence, to those based on factors in respect of which judges cannotclaim any such competence, and where only exceptional circumstances wouldjustify judicial interference, in the absence of errors of fact,misunderstandings, failure to take into account relevant material, taking intoaccount irrelevant material or irrationality.98 At [32]99 At [67]–[68].[121] Acknowledging the very different context in which Carlile was decided,namely that it concerned the decision-making power of the executive in a nationalsecurity context, Ms Anderson argued that this approach was the appropriate one forthe present circumstances and noted that it had been adopted in the more factuallysimilar circumstances of R (on the application of Ben-Dor) v University ofSouthampton, which concerned the decision to refuse permission to hold a conferenceon university grounds because of security concerns.100 Mr Hodder did not resist theapplication of these decisions but submitted that in both cases the decisions wereupheld because there had been a thorough process, with all the relevant considerationscanvassed and time taken to reflect so that the decision was a careful, rational one.That, he said, was not the case here.[122] RFAL's decision is distinct because, although RFAL has the broad statutoryfunctions and objectives discussed, the immediate context was the VHA under whichAxiomatic had agreed that RFAL would be entitled to cancel on the basis of its ownassessment of security issues. Mr Moncrief-Spittle's rights were engaged as a resultof his own contract with Ticketmaster. Dr Cumin's interest was neither direct norpersonal; he was part of a class of people whose future rights might be affected byRFAL's approach to security issues in the context of controversial events. We havealready held that the contractual context does not preclude the decision being judiciallyreviewed and does not preclude the BORA rights of freedom of expression andpeaceful assembly arising. However, we see the countervailing considerations asfollows.[123] First, RFAL's structure means that it necessarily operates on the basis ofenforceable contractual arrangements. Weight must be accorded to thosearrangements.[124] Secondly, Axiomatic gave no indication that security was likely to be an issuewhen it made the booking, yet it is clear from the evidence about the way it hadplanned the Australian tour that it knew there would be protests. Because Axiomatichad not signalled the likely security issue, no bond was required of it. With less than100 R (on the application of Ben-Dor) v University of Southampton [2016] EWHC 953 (Admin) at[63].four weeks before the event Axiomatic still had not provided a health and safety plan.Although not contractually obliged to do so until two weeks beforehand, thesignificance of that omission can be seen by the fact that in Australia it had begunconsulting with the local police two months in advance.[125] Thirdly, the RFAL personnel involved were experienced in the management ofthe Bruce Mason Centre and similar venues and had an internal security adviser.[126] Fourthly, the level of protest escalated significantly during the first week ofticket sales. It was reasonable to expect that this would continue. There was a riskthat protesters would purchase tickets so as to gain entry to the venue, which in turncreated a risk of action requiring evacuation. The internal security advice fromMr Kidd was that this would create a high security risk for staff, patrons and protestersalike. RFAL knew that the location of the Bruce Mason Centre would make it difficultand expensive to manage protests that might require crowd and traffic control.[127] It is apparent that most of the problems with this event arose from Axiomatic'sdecision not to share what it knew about the security risk associated with the eventwhen it made the booking. Had it done so, the suitability of the venue and the realnature of the security risk could have been assessed and managed. The decision tocancel was not inevitable and another decision-maker in like circumstances may havemade a different decision. But in the circumstances outlined it cannot be said that thedecision was not a rational and reasonable response. We therefore consider thatRFAL's decision to cancel the event was a justified limitation on the appellants'BORA-affirmed rights to freedom of expression and freedom of peaceful assembly.Issue 4: did the appellants have standing to bring the proceedings?[128] The contemporary approach to the issue of standing is summarised in thisCourt's decision in Ye v Minister of Immigration:101In New Zealand a generous approach to standing prevails, which is said to bebased on the constitutional principle that the courts must ensure that publicbodies comply with the law As a result of this generous approach, thequestion of standing is combined with the substantive issues as part of the101 Ye v Minister of Immigration [2008] NZCA 291, [2009] 2 NZLR 596 at [322] (citations omitted).judicial review discretion and standing decisions are made on the totality ofthe facts [129] The Judge correctly identified the approach to be taken.102 He then outlinedthe nature of the interests relied on by Mr Moncrief-Spittle and Dr Cumin.Specifically, the Judge noted the "paean" to freedom of speech that Mr Moncrief-Spittle included in his affidavit, and his disappointment at the cancellation. He alsonoted Dr Cumin's status as a resident and ratepayer and as a member of the Jewishcommunity with a particular concern about the risk of exclusion from council assets.103However, the Judge concluded that neither had sufficient interest to seek judicialreview of RFAL's decision:[65] the subject matter for my review is RFAL's decision to cancel theevent. That the applicants wish to imbue that decision with the values theyespouse cannot improve their standing to challenge it.[66] Mr Moncrief-Spittle's legitimate interest in RFAL's decision iscontractual, in relation to any loss and damage he incurred through thecancellation; Dr Cumin's is in desired Council policy-making, which – absentany policy said to be engaged by the decision – may not be justiciable at all,but an issue for participative democracy. Neither has standing to bring thisproceeding, but the point is academic given its failure. Standing's materialityis in exercise of discretion to grant relief.(Footnote omitted).[130] In argument, Ms Anderson conceded that Mr Moncrief-Spittle, as aticket-holder, did have standing to bring the proceeding. This was a responsibleconcession. The Judge accepted that, in addition to his own disappointment at missingthe performance, Mr Moncrief-Spittle had a genuine concern about the effect of thedecision on free speech rights in New Zealand. This is clearly a matter of publicinterest. A plaintiff who has a bona fide interest in having a matter of public interestconsidered will have standing unless the claim is frivolous, vexatious or untenable.104Clearly, Mr Moncrief-Spittle's position in the proceeding went beyond the merecontractual interest of having purchased a ticket. His standing should have beenrecognised.102 Substantive decision, above n 1, at [62].103 At [63].104 O'Neill v Otago Area Health Board HC Dunedin CP 50-91, 10 April 1992 at 4; and Jeffries vAttorney-General [2010] NZCA 38 at [70].[131] We also consider that Dr Cumin has standing. The right of a ratepayer tochallenge the decision of a local authority has been recognised in numerous cases.105For present purposes, however, it is apt to cite from R v Greater London Council, exparte Blackburn, in which a ratepayer was held to have standing to challenge a localauthority's decision to issue cinema licences that did not forbid the showing ofindecent films. Lord Denning MR said:106Who then can bring proceedings when a public authority is guilty of a misuseof power? Mr Blackburn is a citizen of London. His wife is a ratepayer.He has children who may be harmed by the exhibition of pornographic films.If he has no sufficient interest, no other citizen has.[132] Dr Cumin is a ratepayer and has, by membership of a particular community, agenuine interest is the way the Council and CCOs manage public assets. He ought tohave been recognised as entitled to bring the proceeding.Issue 5: did the Judge err in making the costs order against the appellants?[133] Rule 14.7(e) of the High Court Rules 2016 allows the court to refuse to makean order for costs, or to reduce an order for costs that would otherwise be payable,where the proceeding concerned a matter of public interest and the party opposingcosts acted reasonably in the conduct of the proceeding. In order to meet the thresholdunder r 14.7(e) "the proceeding must concern a matter of genuine public interest, havemerit and be of general importance beyond the interests of the particular unsuccessfullitigant".107[134] The appellants had resisted a costs order on the grounds that the proceedingraised novel and untested questions of public importance relating to fundamentalrights and freedoms under BORA and at common law, and important and novelquestions relating to the reviewability of local government bodies, particularly CCOs.They maintained that they had acted reasonably.105 See, for example, Walker v Otago Regional Council HC Dunedin CIV-2009-412-532, 11 June2009 at [8]–[10]; Rangitikei District Ratepayers Assoc Inc v Rangitikei District Council HCWhanganui CP12/00, 28 September 2000 at [3], citing Ratepayers and Residents Action Assoc Incv Auckland City Council [1986] 1 NZLR 746 (CA); and Calvert & Co v Dunedin City Council[1993] 2 NZLR 460 (HC) at 473.106 R v Greater London Council, ex parte Blackburn [1976] 1 WLR 550 (CA) at 558–559.107 Taylor v District Court at North Shore (No 2) HC Auckland CIV 2009-404-2350, 13 October 2010at [9].[135] The Judge rejected these submissions and made a costs order of $46,532 plusdisbursements of $940.108 Reiterating what he had said in his substantive judgment,the Judge considered, first, that the appellants had only raised questions aboutfundamental rights and freedoms "to imbue [RFAL's] decision with the values [theapplicants] espouse".109 Secondly, the Judge considered that there was nothing aboutCCOs that required anything other than an orthodox application of well understoodjudicial review principles.110 He concluded that:[5] Consistently with my conclusions RFAL exercised no public power indeciding to cancel the event – or public function, power or duty in cancellingthe event – the proceeding did not concern any matter of public interest. Theapplicants' self interest, although not disqualifying in itself, here lacked the'watchdog' quality informing public interest considerations on costs andconstituted "something of a crusade" to inject the subject matter of thatself-interest into RFAL's decision making.(Footnotes omitted).[136] The Judge relied for these conclusions on this Court's decision in New ZealandClimate Science Education Trust v National Institute of Water and AtmosphericResearch Ltd.111[137] The "watchdog principle" to which the Judge referred was first articulated inRatepayers and Residents Action Association Inc v Auckland City Council.112 Anincorporated society, whose objects were to promote, protect and advance the interestsof the residents and ratepayers of Auckland, sought judicial review of the AucklandCouncil's decision to enter into a contract for the construction of the Aotea Centre. Onthe question whether the society should pay security for costs, this Court upheldthe High Court's decision to award security but reduced the amount on the groundsthat the Judge had failed to weigh the public interest as a factor in the exercise of hisdiscretion. Richardson J said:113 compliance with the law by those acting under statutory powers is itself amatter of public interest and the availability of judicial review is a 108 Costs decision, above n 2.109 At [4(a)].110 At [4(b)].111 New Zealand Climate Science Education Trust v National Institute of Water and AtmosphericResearch Ltd [2013] NZCA 555 at [13].112 Ratepayers and Residents Action Assoc Inc v Auckland City Council, above n 105.113 At 750.recognition of the need to provide adequate procedures for testing thepurported exercise of statutory powers the law must somehow find a placefor the disinterested citizen in order to prevent illegalities in governmentwhich otherwise no one would be competent to challenge.In acting in a responsible way as watchdogs of the public interest communityorganisations perform a valuable public service. [138] This principle was endorsed in the context of r 17.7(e) in New Zealand ClimateScience Education Trust.114 We infer that the Judge's "something of a crusade"comment is drawn from the New Zealand Climate Science Education Trust case inwhich the first instance Judge (upheld on appeal) declined to discount the costsawarded against the applicant on the basis that the Trust, having mounted "somethingof a crusade", could not be said to have been acting reasonably.115[139] The respondents maintain that the proceeding lacked merit and did not involveany matter of genuine public interest beyond the interests of the appellants themselvessufficient to engage r 14.7(e). It will be apparent from our discussion above that weconsider that some of the issues raised in this case were novel and important,particularly the availability of judicial review in respect of contractual decisions byCCOS. Given the extensive reach of such organisations in local government, this wasan issue that warranted careful consideration. The case bears no real resemblance tothe New Zealand Climate Science Education Trust case in which repeated attempts tochallenge NIWA records (which were always doomed to fail because they were notmatters that could be determined by a court) were ultimately abandoned.[140] As to the appellants' conduct, we accept that the cause of action againstMr Goff could have been abandoned earlier. Apart from that aspect, however, there isno basis for criticism.[141] We consider that the Judge erred in refusing to reduce the costs that wouldotherwise have been payable. Given the importance of the issues raised we considerthat costs and disbursements payable by the appellants should have been reduced by70 per cent.114 New Zealand Climate Science Education Trust v National Institute of Water and AtmosphericResearch Ltd, above n 111, at [13].115 At [14], citing New Zealand Climate Science Education Trust v National Institute of Water andAtmospheric Research Ltd [2012] NZHC 2297, [2013] 1 NZLR 75 at [47].Result[142] The appeal against the High Court's substantive decision is dismissed.[143] The appeal against the High Court's costs decision is allowed. Costs anddisbursements payable in the High Court are reduced by 70 per cent.[144] Counsel may file memoranda as to costs on the appeal within 10 working daysfrom the date of this decision.Solicitors:Franks Ogilvie, Wellington for AppellantsAnthony Harper, Auckland for RespondentsHuman Rights Commission, Auckland as Intervener