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Burning for reform

By Steven | March 25, 2010

Are republicans the only people in NZ who can commit the offence of flag-burning by burning a flag?

You might remember that Paul Hopkinson had his conviction for flag-burning overturned in the High Court, because Justice Ellen France held that the offence needed to be interpreted narrowly to provide space for free speech rights under the Bill of Rights. She said that the offence requires that the prosecution prove that the defendant intended to vilify the flag. That’s unlikely to be established where a flag is burned as part of a political protest. (That’s one of the reasons that Valerie Morse, the ANZAC day flag-burner, was charged with offensive behaviour rather than the specific offence of destroying or damaging a NZ flag.)

At first blush, that sounds like good news for the Republic of New Zealand Party members who torched a flag on Parliament’s grounds recently, and are under investigation by the police for it. After all, they too were conducting a political protest, at a political venue, and their message was pretty clear. They too were simply using the flag as a vehicle for that protest.

But hang on. There’s quite a good case for saying that, unlike Paul Hopkinson, these guys really did intend to vilify the flag. They were protesting against the flag itself and all it stands for. A Maori sovereignty protester might who lit up a flag might be in a similar position. But anyone else who uses this device to protest any other government policy almost certainly isn’t.

I rather doubt that charges will be laid. The Attorney-General’s consent is required, for one thing. Goes to show, once again, what a silly offence this is. We should repeal it.

Topics: NZ Bill of Rights Act, Protest speech | 32 Comments »

32 Responses to “Burning for reform”

  1. ross Says:
    March 31st, 2010 at 6:42 am

    Steven,

    I agree that flag burning is a silly offence and the law should be repealed. But presumably that wouldn’t help someone charged with offensive behaviour, as Valerie was.

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