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Victory for protesters’ rights

By Steven | May 6, 2011

Valerie Morse has won her appeal in the Supreme Court against her conviction for offensive behaviour for burning a NZ flag in protest at the 2007 Anzac Day dawn ceremony. (I represented her, along with Tony Shaw and Felix Geiringer).

Valerie lost in the District Court, High Court and Court of Appeal. But the decision in the Supreme Court was unanimous in her favour. They have found that protesters can’t be arrested and convicted for offensive behaviour unless the police can show there is a disturbance of public order.

Topics: NZ Bill of Rights Act, Protest speech | 57 Comments »

57 Responses to “Victory for protesters’ rights”

  1. IdiotSavant Says:
    May 6th, 2011 at 12:42 pm

    Congratulations. And thankyou. Reinforcing the principle that public order law is about public order, rather than some police officer being annoyed, helps us all.

  2. Justin Says:
    May 6th, 2011 at 1:36 pm

    Congratulations Stephen, well argued and glad we now have a clearer definition of this.

    I admit I have only read the media release so far but what strikes me as odd is how are disorderly and offensive behaviour now differentiated? My question is really how can something be so offensive to disrupt public order without being disorderly behaviour?

  3. Steven Says:
    May 6th, 2011 at 1:42 pm

    Hi Justin,
    I think that’s a very smart question. I’m still digesting the judgments, and I’m not entirely sure they all address or agree upon that point. Still, Justice Blanchard says you might have an offensive-but-not-disorderly situation when there is an indirect threat to public order, as where a gang of thugs bully a young mother in public in an offensive manner. There may be no real prospect that any real disorder will break out, but there’s still a serious disturbance of public order.
    To which you might respond: doesn’t that sound more like disorderly behaviour than offensive behaviour? Or: even if it’s offensive behaviour, isn’t it also disorderly?
    And I’d be pretty interested in Justice Blanchard’s answer…

  4. IdiotSavant Says:
    May 6th, 2011 at 1:56 pm

    Justin: disorderly behaviour (s3) must have a real likelihood of violence. Offensive or disorderly behaviour (s4(1)(a)) can simply have a propensity to deter others from using public space (Anderson J puts this clearly in p127).

    This should have real consequences for the policing of protests. Sadly, I expect it won’t; they’ll just try and find another charge to use to shut down expressions they don’t want to hear.

  5. Graeme Edgeler Says:
    May 6th, 2011 at 3:40 pm

    The Chief seemed to suggest, on my initial reading, that disorderly behaviour was behaviour that was disorderly and offensive behaviour was behaviour likely/calculated to make others disorderly: both disrupt public order, but it’s a question of who exactly is really doing the disrupting.

  6. ross Says:
    May 6th, 2011 at 5:08 pm

    Out of interest, what was the total cost – to the Crown and Ms Morse – of taking this case to the Supreme Court, adding to the cost of earlier attempts to overturn her conviction?

  7. Steven Says:
    May 6th, 2011 at 5:15 pm

    Ross,
    I have no idea of what the Crown’s costs were. My involvement was pro bono, as was Felix’s. I think Tony received a very limited amount of legal aid. Of course, these days that’s treated as a loan repayable to the Crown by the defendant. Since the case has established important constitutional principle applying to a range of lower-order criminal offences, no doubt you and other taxpayers will be grateful to Ms Morse for her civic contribution…

  8. Steven Says:
    May 6th, 2011 at 5:26 pm

    I should add that one Graeme Edgeler lent a hand to the defence, pro bono as well, and deserves the praise of a grateful nation.

  9. ross Says:
    May 7th, 2011 at 9:08 am

    Thanks, Steven. I wasn’t complaining about the cost, just curious as to how much the Crown, in particular, had spent on this case.

    Does the outcome mean, as Bill Hodge has suggested, that anyone can burn the flag at any time and in any place (presumably as long as there is no threat to life or building)?

  10. Justin Says:
    May 9th, 2011 at 12:46 pm

    @ross, I saw that claim in the Dom Post in the weekend. I’m far from qualified to comment but I did think that was a bit sensationalistic.

    Firstly couldnt the actual burning the flag charge be used (I think that’s technically still on the books?).

    That aside, I would have thought that burning the flag in and off itself, as part of a legitimate protest, would be pretty much fair game now – as long as you dont disrupt public order. If the other actions around the burning of the flag had the potential to disrupt public order then maybe not so clear cut (for example if I burnt the flag in the path of marching veterans or waved the burning flag around intimidating people, I am not sure you’d get away with it???).

  11. Justin Says:
    May 9th, 2011 at 12:48 pm

    Mental note to read all info on the blog before hitting submit button *head slap* just read Stephen’s most recent post.. doh! Thanks for the clarification by the way.

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