Case brief - Whitmore v Palmerston North City Council [2021] NZHC 1551

July 13, 2021

Background

The group Speak Up For Women (‘SUFW’) opposes the Births, Deaths, Marriages, and Relationships Registration Bill (the bill that would allow people to change their sex on their birth certificate), saying it risks unintended consequences for women's sex-based rights. SUFW are on a speaking tour to discuss the Bill and made bookings at Council venues around the country for these events.

SUFW has been labelled as ‘transphobic’ and a ‘hate group’ by those who oppose their views.

On about 1 June 2021, SUFW arranged with Palmerston North City Library to book a venue on 25 June.  On 17 June, the Library told SUFW it was cancelling the talk and would only host a debate on the Bill where all views would be represented.

On 21 June, SUFW filed urgent proceedings in the High Court to ensure the event could go ahead as planned.

The Case

SUFW told the Library that the event was to discuss their views on the Bill at the time they made the booking. The next day, SUFW sent through its promotional material and discussed what had happened at a similar event in Christchurch the previous week.

On 10 and 14 June, the Library told SUFW it was in the process of advertising the event. However, after receiving community feedback, the Library cancelled the event and said it would replace it with a facilitated debate that enables views from all sides to be heard on the Bill and would provide a "platform for informed and balanced dialogue".

There was no suggestion that SUFW wished to promote any alternative views on the legislation, although there would be an opportunity for discussion with anyone who attended.

The Court applied the recent CA judgment in Moncrief-Spittle v Regional Facilities Auckland [2021] NZCA 142 which dealt with similar facts. Nation J concluded that the Library’s decision to cancel the event was reviewable and engaged the rights to freedom of expression and peaceful assembly under New Zealand Bill of Rights Act 1990.

Nation J found "There is sufficient evidence before me at this stage to be clear that SUFW cannot rationally be described as a "hate group"". He found that this cannot affect whether SUFW should be allowed to exercise its rights to free speech and freedom of assembly.

Nation J found the Council's decision was a "significant failure to recognise SUFW's right to freedom of speech and freedom of peaceful assembly." SUFW did not in any way mislead the Library as to the nature of the event or the particular views they wished to discuss. Library staff had no safety concerns for themselves or anyone else and there was no evidence of a threatened protest.

However, the Council's decision put conditions on the event which insisted that SUFW could only present their views on the Bill if they were countered by speakers with an opposing view.

Result

The High Court found the cancellation decision was not a rational and reasonable limitation on rights and ordered that the event proceed, which is reportedly did, without protest.

Franks Ogilvie were instructing solicitors for Speak Up For Women on this matter.

Update: Following the Whitmore decision, Auckland Council settled with SUFW and their event went ahead in the Council Chamber and Dunedin City Council confirmed SUFW's booking. The Wellington City Council also accepted SUFW's booking at the Michael Fowler Centre.

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