Court sequel to art fund stoush

A dance advocacy group is accusing the country’s national arts funding authority of unlawfully influencing a decision that saw it denied public money.

Lawyers representing Dance Aotearoa (DANZ) have told the High Court in Wellington that its business will likely shut down as a result of it not receiving new funding.

But Creative NZ maintains its decisionmaking processes were robust and lawful.

The judicial review proceedings hinge on an email sent by a Creative NZ staffer, who questioned scores DANZ received from an external funding panel. The scores were later lowered.

In 2019, the dance support company applied for money under two of Creative NZ’s funding schemes.

An assessment of its application by outsourced assessors awarded DANZ moderate to high scores, and a panel thereafter recommended funding the organisation under one of the schemes.

But Creative NZ’s senior assessment adviser Lee Martelli emailed the panel asking whether it wanted the scores it had given DANZ lowered to match corresponding criteria. A panel representative agreed they should be.

The Arts Council, which governs Creative NZ and signs off on all funding, later rejected any new money for DANZ.

While external assessment panels make funding recommendations, internal Creative NZ staff moderate those afterwards. The organisation’s chief executive then makes recommendations to the Arts Council, which signs off on final decisions.

Robert Kirkness, DANZ’s lawyer, argued Martelli’s questioning went beyond liaising with the panel, and amounted to unlawful ‘‘interfering’’ and moderation of their independent judgments.

‘‘Instead of leaving it up to the assessor to take a view, you tell them what the view – in your view – should be,’’ Kirkness said. ‘‘That’s the objectionable part ... [It’s putting] one hand on the scales.’’

Kirkness argued the email amounted to Creative NZ framing the panel’s thinking.

Legal advice given to Creative NZ in December 2019, after it informed DANZ it would not be receiving new funding, said the ‘‘most notable area of [legal] risk’’ regarding DANZ’s 2019 funding application was Creative NZ staff having acted beyond their mandate, Kirkness said.

He also argued it was not fair, given Creative NZ’s longstanding relationship with DANZ, that little effort was made to forewarn it about it not receiving any new funding.

But Wendy Aldred, representing Creative NZ, described the agency’s process as ‘‘unimpeachable’’. Creative NZ followed a complaint process with DANZ, and was not legally required to revisit its decision.

There was no basis for DANZ to expect new funding because it received historical funding, Aldred said.

The external panel could have refused to amend its scores, after Martelli asked it whether it wanted to change them.

Had Martelli not pointed out the scores were not in line with the corresponding criteria, any funding applicant could benefit from external panels’ misunderstandings of the scale, Aldred said.

The hearing, before Justice Christine Grice, has been adjourned to resume later this week.