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Sparking debate

By Steven | August 10, 2009

I’ll be in the Court of Appeal with Tony Shaw tomorrow trying to make the world safe for flag-burners. Specifically: Valerie Morse, who lit a flag over the road from the Anzac Day dawn service at Wellington’s Cenotaph in 2007 to protest our militaristic foreign policy. She’s been convicted of offensive behaviour. Is this a demonstrably justified restriction of her free speech rights under the Bill of Rights? We’ll find out. Should be an interesting day’s argument.

Update: argument is over. It’s fair to say that the judges did not seem particularly sympathetic to the flag-burners at ANZAC day services, but at the end were toying with the idea that a criminal conviction may be disproportionate, as opposed to simply moving such protesters along, or merely arresting them for a short while, or warning them to stop and prosecuting them for obstruction if they persisted.

We now await the decision. Watch this space.

Topics: NZ Bill of Rights Act, Protest speech | 34 Comments »

34 Responses to “Sparking debate”

  1. Graeme Edgeler Says:
    August 11th, 2009 at 9:10 am

    Is this a demonstrably justified restriction of her free speech rights under the Bill of Rights? We’ll find out.

    That’s optimistic.

    I think history has shown that our courts will do nearly everything possible to avoid answering that question…

  2. Steven Says:
    August 11th, 2009 at 9:30 am

    Well, it is the very question that the CA has agreed to hear on appeal.

  3. LawStudent Says:
    August 13th, 2009 at 11:59 pm

    Dear Steven,

    I wonder whether you could provide a brief summary of defence counsel’s main arguments?

    Was the “offensive behaviour” charge a result of the fact that it was at the ANZAC Parade itself rather than, say, down the road from it?

  4. Steven Says:
    August 14th, 2009 at 10:52 am

    I think it’s fair to say that the charge closely related to the fact that the flag-burning occurred during the dawn parade service.

    Our submissions were 30 pages long, but here’s the summary section:

    1. This case is about criminal punishment for expressing ideas. As the US Supreme Court put it in Spence v Washington 418 US 405, 411, a case about the conviction of a student for attaching a peace sign to a flag: “We are confronted then with a case of prosecution for the expression of an idea through activity.”
    2. Sections 14 and 5 of the BORA are clearly engaged in the present case.
    3. The appellant’s conviction should be quashed because it constitutes a disproportionate interference with the appellant’s BORA and ICCPR rights and freedoms.
    4. It is submitted that R v Hansen [2007] 3 NZLR 1 (SC) (Hansen) and Brooker v Police [2007] 3 NZLR 91 (SC) (Brooker) require the Court to (a) interpret the offence of offensive behaviour, and (b) apply it to the facts, in a BORA-consistent manner, and resist any interpretation or outcome that restricts freedom of expression in a way that is not “demonstrably justified” in a free and democratic society within the meaning of s5 BORA.
    5. The key issue is whether the Crown can establish that the appellant’s criminal conviction is a rational and proportionate response to an important social objective.
    6. The appellant’s actions in briefly burning a flag, in the context of conveying a genuine and relevant political message, fall at the core of the right to freedom of expression. Courts around the world have emphasised the importance of political speech, the speaker’s right to choose the method of speaking, and the implicit inclusion of the right to offend, shock or disturb within the right to freedom of expression.
    7. On the other side of the proportionality equation, the interests that might be said to be served in criminalising the appellant’s speech are less compelling, are not substantially advanced by the expansive use of this offence to achieve the appellant’s conviction, and are already protected by a range of more narrowly tailored restrictions. The appellant’s behaviour was fleeting, did not harm anyone or create danger, and provoked no disturbance, still less any breach of the peace or of public order.
    8. Therefore, a criminal conviction here is an unjustified and disproportionate restriction on Ms Morse’s right to protest on serious matters of public interest.
    9. It cannot be sensibly suggested that the broad and vague language of the offence of offensive behaviour is incapable of being read consistently with the BORA. This is not a s4 BORA situation in which the plain words of Parliament must be applied, even though the limit is not demonstrably justified.
    10. Brooker v Police is authority for the proposition that s4 SOA needs to be reassessed in light of the BORA. A variety of possible approaches – overlapping to some extent – provide the Court with tools with which to avoid a rights-infringing outcome. An outcome that is proportionate and compatible with freedom of expression can be achieved, for example, by an interpretation that:
    (i) recognises that the offence of offensive behaviour is generally aimed at indecently offensive public conduct such as sex, lewdness, nudity, swearing, and defecation and that the imparting of ideas and opinions, especially in the context of a public political protest, will not be offensive except in the rarest of circumstances;
    (ii) requires that the offensive behaviour create a serious or substantial disruption to the public order (the test established in Brooker for disorderly behaviour);
    (iii) requires that the offensive behaviour should create a serious or substantial disruption to public decency (by analogy with Brooker);
    (iv) excludes from the ambit of offensive behaviour, offences that Parliament has chosen to deal with in a specific fashion, such as the flag-burning offence in the Flags, Emblems and Names Protection Act 1981, particularly where those offences contain their own protections against over-use (such as the flag-burning offence’s Attorney-General consent requirement);
    (v) whatever meaning is adopted, requires the threshold to be raised to a very high level of offensiveness to justify a conviction when core BORA free speech rights are at stake (this approach involves a question of the intensity of the application of the section).
    11. There is no evidence in the present case of conduct of an indecently offensive nature, or of serious or substantial disruption to public order or to public decency. The current prosecution seeks to circumvent the protections in Parliament’s specific flag-burning offence.
    12. Whatever approach is taken to the meaning of s4(1)(a), the record does not disclose the very high degree of offensiveness required to justify the criminal conviction of a genuine political protester in these circumstances.

  5. Andrew Geddis Says:
    August 14th, 2009 at 5:19 pm

    Jeez, Steven …

    The request was for “a brief summary”!

    Seriously, though – I’m wondering about a point in your main post … that the Court at “the end were toying with the idea that a criminal conviction may be disproportionate, as opposed to simply moving such protesters along, or merely arresting them for a short while, or warning them to stop and prosecuting them for obstruction if they persisted.” My issue is that if Morse’s action wasn’t “offensive” behaviour such as attracts criminal sanction under s.4 SOA (or, one assumes, “disorderly” behaviour), then where would the police get authority to take these “more proportionate” actions? From the general common law power to prevent a breach of the peace (does that still exist in NZ?) Not being a criminal lawyer, I’d welcome any insight …

  6. LawStudent Says:
    August 14th, 2009 at 6:11 pm

    Thank you for that Steven.

    It seems that if the issue was that burning the flag at the ANZAC Parade was “offensive behaviour”, the CA is going to have to answer the BORA point explicitly. Surely, as mentioned above, they won’t be able to decide it on the basis that arresting/charging the D was unreasonable?

    I’ve never looked at the statutory provision, but based on your summary of submissions, there is obviously wide scope under the criminal provision to interpret consistently with BORA via Section 6?

  7. LawStudent Says:
    January 16th, 2010 at 1:09 pm

    Steven,

    Any thoughts on the recent CA judgment in this case? It looked like a narrow decision.

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