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Crashing and burning

By Steven | January 21, 2010

Valerie Morse has lost her appeal to the Court of Appeal over her conviction for flag-burning at the Anzac Day Dawn Service. (For some reason, this wasn’t regarded as a “decision of public interest”, but it’s posted here).

The judges all wrote separate judgments. Justice Arnold and the President of the Court of Appeal, William Young, voted to uphold the conviction. Justice Glazebrook wrote a dissent. (I think her dissent is very convincing, but I would say that: Tony Shaw and I represented Valerie.)

Still, perhaps the final chapter has not yet been written. The Supreme Court may yet grant leave for an appeal.

I won’t go into a detailed analysis of the judgments. But I do want to make one point, despite knowing that it’s a bit naff arguing the toss with a judge after a judgment.

You’ll see that at para [48], William Young P says:

In the course of argument, I pressed Mr Price for the appellant to identify an error of law made in the Courts below. His answers were variations on the theme that the outcome was simply wrong. This rather makes me think that the fundamental challenge to the conviction turns on the factual accuracy of the findings made in the District Court and the High Court. But such a challenge, at least in simple terms, is off-limits in this Court in a second appeal…

I’m not sure where this came from. First, the Court of Appeal itself gave leave on the of whether the conviction was consistent with the Bill of Rights Act. It characterised this as a question of law.

Second, here our our written submissions on the errors of law in the courts below:

The failures of the courts below

The courts below failed to properly conduct an analysis of the impact of ss14 and 5 of the BORA in that:

– they did not adopt a rights-centred approach;

– they did not acknowledge that the right to offend, shock or disturb is an indispensable aspect of freedom of expression, and particularly political expression;

– they did not acknowledge that limitations on BORA rights should be construed narrowly, convincingly established, and strictly applied in favour of the rights at issue;

– they did not properly assess the significance of freedom of expression in the circumstances of this case;

– they did not identify any legitimate purposes for the restriction on the appellant’s right to burn the NZ flag, the starting point for any proportionality analysis;

– they did not consider whether the appellant’s conviction was “demonstrably justified” in a free and democratic society;

– they appeared to treat the symbolic nature of the act of flag-burning as an aggravating rather that mitigating factor;

– they did not properly apply the Brooker test, which significantly lifted the bar in cases of protest; nor did they create and apply an analogously high bar for offensive behaviour;

– they did not consider the relevance of the offence of flag-burning under the Flags, Emblems, and Names Protection Act 1981;

– they apparently regarded the proportionality analysis as an ad-hoc balance between the rights of the appellant and the rights of the others in attendance, rather than a structured process of justification that revolves around evaluating the legitimacy, relevance and strength of the state interests in the restriction.

Also, as Justice Arnold notes at para [14], we supplied three alternative approaches to interpreting the offense of offensive behaviour, all of which we said were consistent with the Bill of Rights, and none of which were adopted by the District and High Court judges.

Finally (and I’m taking this from the notes I wrote during the break in order to respond to William Young P’s question), we emphasised that the fundamental failure of the judges was in adopting the wrong approach to the question of justifying restrictions on free speech. The correct legal approach required them to acknowledge that the starting point was freedom of expression and that the burden of justification lay with the Crown; the second step was to examine how deeply the right to freedom of expression is involved in the particular circumstances; the third step was to assess the countervailing state interests and the extent to which they were harmed; and the final step was to assess whether that harm outweighed the damage to freedom of expression. This is the sort of analysis, we noted, that Canadian courts conduct all the time.

I guess that, to the President, that didn’t sound like an error of law. It sounded like a fancy way of dressing up a bare claim that the lower courts had just “got it wrong”. In any event, he wasn’t convinced by our arguments.

And to be fair, the essence of our argument was indeed that on any properly rigorous justification analysis, a conviction could not be found proportionate. There’s a big difference between that sort of robust approach, and one that merely plays a bit of lip service to free speech, refers to a few factors that seem relevant to a “balancing” exercise, and reaches an airy conclusion that a conviction is justified. I think Justice Glazebrook was the only judge to really grapple with all the facts and apply a rigorous justification analysis. She found the conviction unjustified.

Topics: NZ Bill of Rights Act, Protest speech | 15 Comments »

15 Responses to “Crashing and burning”

  1. ross Says:
    January 21st, 2010 at 7:17 am


    Didn’t Paul Tompkinson (sp) get convicted a few years back of flag burning but then have his conviction quashed? On the face of it, there seems to be an inconsistency here. Flag-burning is either illegal or it isn’t. Personally, if someone legitimately possesses a flag, I don’t see how burning it is a crime. If I made a t-shirt out of the flag and then burnt it (for whatever reason), would that be different or is that illegal too?

    Slightly off topic, cases such as this seem to take up a lot of the justice system’s time and money. I would’ve thought that the system, and those running it, had far more important things to worry about.

  2. Steven Says:
    January 21st, 2010 at 10:11 am

    Paul Hopkinson had his conviction for the specific offence of flag-burning overturned as inconsistent with the Bill of Rights. Had Valerie been charged under the flag-burning statute, she would almost certainly have been acquitted. Part of our argument was that the police shouldn’t do an end-run around the threshold in the specific law that aims at flag-burning by bringing charges for offensive behaviour. That didn’t win the day either.

    It’s not as simple as illegal-or-not. An action may breach one law but not another. Nor is it as simple as burning your own property. The offence here was not burning the flag per se (of course that’s legal), it was creating substantial offence in the people around.

    As for the justice system, I rather think it’s an important part of their job to adjudicate on civil rights issues, and this cases raises important issues about the application of the Bill of Rights to protesters.

  3. ursula cheer Says:
    January 21st, 2010 at 5:01 pm

    This is tricky stuff, but I was surprised by the decision. The judges still seem very cautious about going too far with Bill of Rights analysis. William Young P just doesn’t want these minor offences to become diluted by BoR analysis. Even Glazebrook J doesn’t want these cases to become about the BoR- she talks about the balancing test being a question of fact or possible a mixed one of fact and law. She frames the issue as a general one, of whether the principles, properly applied to the facts as found, could have legitimately led to the conviction. So, as you say, its ok to do some balancing, but it’s still an add-on, rather than a process which transforms the reasoning. And it doesn’t sit with interpretation of the Flag-burning legislation. What would Ellen France J have done with this, I wonder..?.

  4. Glassboy Says:
    January 22nd, 2010 at 12:22 am

    Steven, I’ve read bits and pieces of the decision. I plan to read the rest when I am a little less tired.

    I do want to make one point though.

    I agree that the right to shock or offend is an essential aspect of the freedom of expression. I don’t see why causing offence to returned service people and the families of people who have died in service to what the flag symbolises should be considered a reasonable political expression.

    In substance Ms. Morse’s actions would seem to little different from hate speech. She carried out a distructive and threatening activity, not a peaceful one. I doubt you object to the limits placed on the freedom of expression by the Human Rights act.

  5. Steven Says:
    February 2nd, 2010 at 12:14 pm

    Ursula – I like to think that Ellen France J would have found this disproportionate, as she did in Hopkinson (though she may not have; the facts differ a little). Her approach may then have been to look for an alternative interpretation of offensive behaviour – as you can see, we provided several.

    Glassboy – I’m afraid I don’t really follow your reasoning. You’re allowed to offend people but not these particular people? Is the line to be drawn at what you consider to be “reasonable political expression”? How do the rest of us know where that line is? The point being made is that we shouldn’t restrict political speech just because we’re offended by it.

    There is no specific hate speech provision in the Human Rights Act. In any event, what exactly was “threatening” about burning a flag? I think her protest was entirely peaceful.

  6. Graeme Edgeler Says:
    May 18th, 2010 at 3:14 pm

    Congratulations for leave judgment!

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