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Canadian humans Lauren Southern and Stefan Molyneux.
Canadian humans Lauren Southern and Stefan Molyneux.

PoliticsOctober 1, 2019

How the free-market squad devoured its free-speech children

Canadian humans Lauren Southern and Stefan Molyneux.
Canadian humans Lauren Southern and Stefan Molyneux.

The High Court rejection of the Free Speech Coalition’s challenge to the cancellation of an Auckland event by Lauren Southern and Stefan Molyneux carries a cruel irony for the zealous right.

If the current madness of modern life permits, cast your mind back to the middle of last year. Two “right-wing provocateurs” from Canada (ship name “Stefren”) wanted to bring their grift to New Zealand, and to Auckland’s Bruce Mason Theatre in particular. Some people got mad about this prospect and threatened to physically block public access to the event. The organisation that runs the Bruce Mason Theatre – Regional Facilities Auckland Ltd – then cancelled Stefren’s booking on health and safety grounds. Whereupon some other people got mad at this alleged curtailment of free speech, whipped up a bunch of money, and went off to court to challenge the cancellation decision.

At the time, I said this about the prospect of such a case:

At the risk of lapsing into legalese, the council’s actions when hiring out its venues to speakers are captured by both the NZ Bill of Rights Act 1990 and the Human Rights Act 1993. Those enactments prevent the council from making venue hiring decisions (including cancellations) that “unjustifiably limit” freedom of expression, or that discriminate on the basis of political opinion. Auckland Live – the council’s company that manages the venues – can’t then contract out of those legal obligations.

Consequently, Mayor Goff’s decision (put into practice by Auckland Live) most likely will be found to be unlawful unless there is some sort of “demonstrably justified” reason for preventing [Stefren] from speaking at the council’s venue.

Well, you did read my internet hot-take for free, and so you got what you paid for. Not only did I get the name of the organisation that runs the Bruce Mason Theatre wrong, but it later turned out that the Mayor Phil Goff had nothing at all to do with the cancellation decision. Rather, he publicly jumped on board Regional Facilities Auckland Ltd’s independently-made decision in an effort to burnish his liberal, pro-diversity credentials.

And now the High Court has pretty much trashed my legal analysis of the issue as well. In a judgment released yesterday, it found that Regional Facilities Auckland Ltd didn’t have any public law duty, whether under the NZ Bill of Rights Act 1990 or otherwise, to consider freedom of expression when cancelling Stefren’s talk. That’s because, the Court said, Regional Facilities Auckland Ltd hadn’t made a “public” decision when it pulled out of its contract to hire out the Bruce Mason Theatre. As a separate body from Auckland Council that has the job of managing the region’s various facilities and making them available for use, it simply made a business call that holding this event represented too big of a legal risk for it. Which it was free to do irrespective of the resulting consequences for expressive rights.

In other words, to lapse into legalese again, Regional Facilities Auckland Ltd’s hiring out of the venue was neither susceptible to judicial review nor subject to the NZ Bill of Rights Act 1990. Whatever the moral rights or wrongs of the matter, it’s none of the court’s business. Meaning that the court didn’t examine whether the claimed health and safety concerns really justified cancellation, because Regional Facilities Auckland Ltd didn’t have to justify its action at all.

Now, better and brighter administrative law minds than mine have expressed some disquiet about this conclusion. But unless and until there’s an appeal, it stands. Which brings me to the real point of this piece.

You see, the decision to establish Regional Facilities Auckland Ltd as an arms-length organisation separate from Auckland Council was taken back in 2009 in the midst of setting up the Auckland Supercity. That reform project was primarily guided by the Act Party’s Rodney Hide. And a big part of his vision for the reforms was to increase the efficiency of local government in the region. Rather than having lots of local politicians interfering in the running of things, there would be large “Council Controlled Organisations” that (as the NZ Herald’s Bernard Orsman put it at the time) were “designed to take control from politicians and the public to get things done in a business-like manner”. Such a model, Rodney Hide and Steven Joyce enthused, would help ensure “efficient and cost-effective service delivery”.

You might recognise this model from the 1980s mania for “corporatisation”, with its underlying assumption that the market will do a better job than can democratically-chosen representatives. If we could just get our governing bodies to be more like private businesses, then everyone will be better off. After all, who could have a problem with running things in a way that gives superior outcomes for less money?

Unfortunately, as people like Auckland professor of law Janet McLean have warned, it turns out that this model comes at a cost. Because if you say that public services and facilities should be operated in a business-like fashion, then you really can’t complain when they operate like, well, a business. And if a business considers that a particular customer represents too much of an operational risk for it to contract with, then that’s up to the business to decide. And if that means there’s then nowhere for controversial speakers like Stefren to publicly speak, then the market has spoken. After all, who could have a problem with running things in a way that gives superior outcomes for less money?

Now, why am I revisiting all of this background? Well, let’s take a look at who was behind the legal challenge to Regional Facilities Auckland Ltd’s cancellation decision. While the case was brought in the name of two individuals in an (ultimately vain, as it turns out) effort to demonstrate sufficient “standing”, it was funded by the “Free Speech Coalition”. And prominent among that body’s members are ex-Act Party members Don Brash and Stephen Franks, as well as vocal champion of local government efficiency Jordan Williams.

Writing in 1793, the Swiss-French journalist Jacques Mallet du Pan summed up the fate of many of the leaders of the French Revolution in the reign of terror this way: “Like Saturn, the revolution devours its children.” It turns out that the pro-market revolution in societal governance also has its victims – those who think that a local body’s public spaces should be operated in a way that pays due attention to the citizenry’s expressive rights. Because, according to the High Court, you can’t have organisations that are both designed to take control from politicians and the public to get things done in a business-like manner and also required to be respectful of individual speech rights when deciding who to contract with.

Or, to put it another way, the Free Speech Coalition has met the enemy and it is (some of) them.

Keep going!
Sign from climate strike at parliament, September 2019. Photo by Hagen Hopkins/Getty Images
Sign from climate strike at parliament, September 2019. Photo by Hagen Hopkins/Getty Images

PoliticsSeptember 30, 2019

The climate strike smashed it for scale. But is it all too … polite?

Sign from climate strike at parliament, September 2019. Photo by Hagen Hopkins/Getty Images
Sign from climate strike at parliament, September 2019. Photo by Hagen Hopkins/Getty Images

The groundswell of protesters across NZ on Friday is cause for optimism. But if results don’t follow, the calls for more direct action that confronts the status quo will grow, writes Peter McKenzie.

Half an hour after the #SchoolStrike4Climate marchers began arriving at parliament, organisers got worried. Two young student coordinators, in pink high-vis vests, grabbed megaphones and began pleading with marchers to move “towards the sea”. With the tail of the march still snaking along Lambton Quay, it wasn’t clear that everyone would fit onto the grounds of parliament.

There were estimates of 5,000 marchers in Christchurch, 40,000 in Wellington, 80,000 in Auckland, and smatterings in the rest of the country. In total, the #SchoolStrike4Climate organisers said they’d received credible reports of 170,000 New Zealanders marching to call for stronger climate action – 3.5% of the country.

And for protest organisers, 3.5% is a magic number.

In 2011, Erica Chenoweth, then a little-known political scientist at the University of Denver, wrote a blockbuster book which showed that nonviolent protest movements which can get 3.5% of the population to actively participate are practically assured to succeed. According to Chenoweth, in her research “there weren’t any campaigns that had failed after they had achieved 3.5% participation during a peak event.”

Since Chenoweth’s book came out, protest organisers around the world have been laser focused on hitting that 3.5% number. Of course, very few do. So for #SS4C to have done so is a huge achievement.

But it’s not a guarantee of success. That’s because #SS4C is different to many of the protest movements which Chenoweth studied. The examples which Chenoweth draws on in her writing were not just nonviolent and widespread, but disobedient and challenging. The consumer boycotts of black South Africans (which caused an economic crisis and partly led to the collapse of apartheid) required black South Africans to make costly personal choices.

The civil rights movement in America required protesters to participate in sweeping and systematic civil disobedience; to face down police dogs and risk being arrested for occupying the streets. Gandhi’s Indian independence movement relied on satyagraha (non-violent civil disobedience): the boycott of British goods, the defiance of British laws and taxes, and non-violent resistance to British and Indian police officers.

#SS4C takes a different approach. Far from trying to break down the system, their protests take place in cooperation with the system. Streets were closed ahead of time. Police officers were there to redirect traffic. MPs were there to make speeches and to demonstrate in solidarity. The #SS4C march was a way for tens of thousands of people to show unity and express dissatisfaction with the status quo. It did not demand a lot from participants, nor was it a way of forcing immediate political action.

That doesn’t mean #SS4C isn’t having an impact. As a youth-led, youth-centric movement uniting tens of thousands of young people, it has been radically successful at inspiring young New Zealanders.

Countless young New Zealanders are suffering from “eco-anxiety”, which an American Psychological Association paper chillingly described as “”watching the slow and seemingly irrevocable impacts of climate change unfold, and worrying about the future for oneself, children, and later generations”.

#SS4C’s work has shown how widespread those concerns are, and how many people want to do something about it. As one activist at the march said, “This is the first time I’ve felt hope in a long time.” Many of these young people, whether they are long-time climate organisers or new arrivals to the movement, will become increasingly committed to climate action as a result of their involvement with #SS4C. In other words, #SS4C is creating an army of inspired, energised climate activists.

Nevertheless, at the moment it is unclear whether #SS4C is quite what Chenoweth envisioned when she wrote of 3.5% of the population “actively participating” in non-violent protest. Other environmental movements have more explicitly modelled themselves off of Chenoweth’s model. Extinction Rebellion, the main environmental mass-movement in the United Kingdom, is centred entirely on “nonviolent direct action”. It has closed down city streets and public places and filled them with major concerts and art exhibitions. At protests earlier this year, which brought London to a standstill for two weeks, over a thousand participants were arrested. Extinction Rebellion’s members have glued themselves to underground trains and held funerals at London Fashion Week. They are deliberately provocative and explicitly inconvenient – they want to force decision-makers to respond.

At the moment, #SS4C is uninterested in the nonviolent direct action (NVDA) approach of Extinction Rebellion. Part of the reason NVDA is unappealing is simply because “there’s a chance that you’ll be arrested”, Sophie Handford, #SS4C’s national convener, tells me over a patchy phone line, as members of the group celebrated in the background. “Some people are not necessarily willing, or for other reasons, they just aren’t keen to put themselves in that position.”

In the lead-up to the marches on Friday, #SS4C was particularly focused on engaging people of colour in the movement. Their protests across the country were co-hosted with the environmental group Pacific Climate Warriors, and featured Pasifika performances and speakers.

That emphasis is a big part of why #SS4C avoided NVDA. Molly Doyle, one of the main #SS4C organisers, explained the approach this way: “As much as NVDA examples that we need faster, direct action now, it is something that’s not acceptable for a lot of people. Therefore it’s excluding minorities, and heaps of people can’t be taken along on this journey. To make actual, societal change, you need everyone.”

But inside the broader environmental movement, people are getting more and more impatient. Recent reports by the Intergovernmental Panel on Climate Change have said humanity has barely a decade to slash its greenhouse emissions before radical climate impacts are locked in. Environmental activists are wary that humanity will start to feel severe climate impacts sooner than that. Doyle emphasises that “We’ve only really got three years to take immediate action before we start seeing really significant effects of climate”.

Consequently, the debate between gentler protest movements with widespread appeal and confrontational movements with more limited membership is far from abstract. Determining which is more effective and devoting the environmental movement’s focus accordingly could be instrumental in the climate fight.

For the moment, #SS4C is planning to continue with its current approach and pursue change from within the existing system. Handford explains that “in the next couple of weeks and coming months [we’ll] hopefully organise meetings with those politicians and follow up on their response to the Strike, to ensure that they are taking on our messages and our demands.” That an estimated 170,000 New Zealanders marched in the streets, Doyle says, “gives us such leverage to work with all the [MPs] who actually want to actively make a change, [and also to] make a change in all of our own lives.”

Essentially #SS4C is trying to nudge individuals into changing their habits and coax our politicians into behaving. For a movement full of people who are stridently dissatisfied with the status quo, that demonstrates remarkable and ironic optimism – predicated on a belief that our current political system is capable of the change necessary to satisfactorily address the climate crisis.

With 3.5% of the population behind them – and with the real prospect of more at future protests – #SS4C’s approach could work. But if it doesn’t start to do so quickly, that optimism will fade. And in its place will grow a more confrontational approach, in line with Chenoweth’s vision, which our status quo will find far harder to absorb.

Politics