THE PRESS MONDAY, JULY 15, 1985. The rugby tour injunction

Press, 15 July 1985, Page 12

THE PRESS MONDAY, JULY 15, 1985. The rugby tour injunction

The granting on Saturday of an interim, injunction against the departure of the All Black rugby team to South Africa is an attempt to preserve the status quo until broader issues have been settled. In the opinion of one man — a highly skilled jurist — the decision of the New Zealand Rugby Football Union Council to send a team to South Africa may be at odds with the aims of the organisation that the council is elected to administer. On the face of it at least, the possibility that the tour might be contrary to the sport’s best interests is sufficiently strong for the council to be required to answer the challenge. Until this question has been disposed of, the team must not leave New Zealand. The granting of the interim injunction is not a final ruling on the claim, nor is it necessarily an indication of how the Court will decide the issues. Because the main hearing would have continued past the team’s intended departure date — probaby next Wednesday — the interim injunction is meant to put everything on “hold” until the hearing has been completed. It might be an imperfect mechanism, but it is the best available to balance the rights of the plaintiffs to a hearing that is not thwarted by the speed of events outside the court, against the rights of the defendants to carry on activities that might turn out to be entirely proper. It is in the nature of an injunction that the Court must deal with a grey area — not with events that have happened, but with probabilities and with what may be the unintended consequences of otherwise lawful actions. Because the decision to grant or refuse an injunction relies on informed guesses about possible consequences, it will be hard to persuade the community that the decision carries the same authority as a decision about past events based on consideration of evidence. It also will be hard to convince some people that these abstract considerations should be sufficient to deny free movement to a group of New Zealanders who have broken no law, neither singly nor as a group, in this or any other country. A fine but important distinction needs to be recognised. The injunction does not inhibit the rights of New Zealanders to freedom of movement as individuals, but prohibits, in the meantime, the departure from the country

of a group under the auspices of the N.Z.R.F.U. The nicety will not comfort the libertarians. When giving his reasons for granting the interim injunction, Mr Justice Casey cast his net very widely, seemingly well beyond matters that might be taken to be the proper business or concerns of the Rugby Union. This is a measure of how far rugby activities now are seen to impinge on the well-being and reputation of others, and of the country as a whole. The good of rugby always has been a prime consideration in the tour controversy. A majority of the Rugby Union, assumed to be the best judge of its own business, decided in favour of the tour. By challenging that decision in the courts, two members of Auckland rugby football clubs, both lawyers, express the opposition to the tour felt by many New Zealanders.

The principle is open to wide ramifications. To take an extreme, but obvious example, politics and politicians almost inevitably divide the community. The destinations of some members of the Cabinet who have travelled abroad in the last year have been offensive to some people; some Ministers have made remarks abroad that people of opposing views would deem inept, embarrassing, or ill-judged in terms of the country’s welfare and reputation. Has a way been opened for private citizens to seek to restrain travel by Ministers?

The immediate effect of the interim injunction has been to cause maximum uncertainty and inconvenience, not only for the Rugby Union, the players, and their hosts, but also for the hundreds of supporters who had planned to accompany the tour. Once persuasion and argument had failed to bend the Rugby Union from its course, most people assumed that the tour was on and many made plans in anticipation of it. Whatever the result of the main hearing, the effect on the team has been deeply unsettling. One unhappy outcome might be an added motive for professional rugby tours of South Africa. If a tour under the control of those whose business it is to administer the amateur sport is stopped, there is a strong incentive for the South Africans to seek a paid tour by individuals, and an inducement for the more enthusiastic rugby players and supporters to accept.