Friday, May 04, 2007

A victory for the freedom to protest

There's been a significant ruling from the Supreme Court today, in the case of Brooker v. Police. The case concerns the interpretation of the charge of "disorderly behaviour" and its balance with the affirmation of freedom of expression in the Bill of Rights Act.

The actual protest concerned is minor. Allistair Brooker took offence at being woken up by a police search warrant at 3am on what he believed to be bogus reasons - so two days later he returned the favour, and protested outside the responsible police officer's house. Knowing that she had been working on the night shift, he knocked on her door (waking her up), then when told to leave the property, stood on the sidewalk outside with a placard, singing. When the police showed up, he complied with their requests to move his car, and was then arrested for intimidation. The District Court dismissed that charge, finding no evidence that Brooker had intended to threaten or intimidate, but instead convicted him of disorderly behaviour under s4 (1) (a) of the Summary Offences Act 1981. That conviction was appealed all the way to the Supreme Court, which has now quashed it by majority decision.

Four of the justices stuck to some version of the traditional test that disorderly or offensive behaviour is defined relative to the values of the "right-thinking" (now "reasonable") member of the public, as modified by the affirmation of freedom of expression in the BORA, and with due regard to the danger pointed out by Sir Kenneth Keith that this would simply amount to defending the status quo. Where they differed was on privacy; two of the justices (McGrath and Thomas) believed that there was a reasonable expectation of people to privacy in their own home, which must be balanced against the freedom of expression. The other two (Blanchard and Tipping) gave some weight to this in recognising that what is disorderly in a residential street may not be disorderly in a public square, but ultimately came down strongly on the side of freedom of expression. Given the low-key nature of the protest, its hard to disagree - and its also hard not to see this as a case of the police abusing the judicial process to protect one of their own from criticism.

The interesting judgement however is that of the Chief Justice. She approaches it primarily as a matter of statutory interpretation, rather than balancing, and reaches the conclusion that in light of its history and particularly of the BORA, "disorderly behaviour" is narrowly about public order. In order for a conviction to be sustained, a protest must interfere with the "ordinary and customary use" of an area. This still sets a lower bar for residential areas than public squares, but she is quite clear that

A peaceful protest or picket which is simply annoying or embarrassing and which does not seriously interfere with use of the neighbourhood by others does not become disorderly simply because it is conducted on a residential street.

She also agreed that even under the "reasonable person" test (which she rejects), the behaviour would not be disorderly, citing similar reasons to those of Justices Blanchard and Tipping.

There are two reasons why this ruling is significant. Firstly, judges' homes are being picketed at the moment by a small group of disgruntled fathers taking out their anger over their divorces on those who uphold the law. The Supreme Court has just effectively upheld their right to do so (or at least said that they cannot be charged with disorderly behaviour if their protest is relatively low key; this does not rule out charges of harassment, intimidation, or even contempt of court for attempting to interfere with the work of the judiciary). Secondly, there may be implications for other forms of protest. The court expressed a strong respect for protest and made it clear that the BORA sets a high bar for what the "reasonable" person must be expected to tolerate. As justice Tipping pointed out,

the purpose of protest is to make someone listen to something they do not want to hear.

This means that merely causing offence or annoyance is not a sufficient reason for an arrest - there needs to be something more. Hopefully the police will pay some attention to this - and hopefully the lawyers for the recent Anzac Day protestors will as well.


This is really, really good. It reinforces not just the right to protest, but the value of the bill of rights act. I also like the way they didn't try to charge him with finding an offduty p*lice officer or similar.

I'm ambivalent about the exact protest, but I understand the motivation and see the funny side. Its just that I would much prefer that both sides behaved in a civilised manner, including respect for peoples sleeping patterns. But since the p*lice choose to use unreasonable hours as a tactic, I think it's open to anyone to do so.

As someone living in Australia, both a right to protest and a BORA would be much appreciated here. We have the next step up in terms of p*lice (mis)behaviour, without any corresponding right to respond.

Posted by Moz : 5/04/2007 03:36:00 PM

Moz: yes. Something I didn't note is that several of the judges (including McGrath) appeared to agree with Elias on the purpose of the law; they just still felt it necessary to engage in a balancing act (and in McGrath's case, found in favour of privacy). Meanwhile, I'm unimpressed with Justice Thomas's apparent argument that it is protestors, rather than the state, which must justify their behaviour.

I've argued before that Australia needs a BORA, given that it has no federal affirmation of freedom of expression outside a very narrow implied right to political speech. One way of getting one would be to start at the state level; that would also provide concrete examples that a BORA is not the end of the world, and does not spell chaos. Unfortunately, I get the impression that Oz is a little bit more authoritarian than NZ, and there seems to be a lot of resistance to surrendering federal power by affirming rights.

Posted by Idiot/Savant : 5/04/2007 03:51:00 PM

Oz is actually a lot more authoritarian - they're currently going after G20 protestors using the anti-terrorism powers, for instance. Snatch squads, 6am raids on houses, refusing to disclose charges until they have to, it appears that they're trying (and succeeding) to put a wedge between people who are willing to have violence used against them and "the rest". Helped, of course, by "protest" groups who leap to support the P*lice in the hope that they will be less likely to get attacked if they do.

There are serious problems with protest in Australia, and they're getting worse. We've had Police ignore a court order that our protest was lawful and must be facilitated by the Police (the law explicitly requires them to do that anyway), but that was a few years ago. These days they're not even bothing to challenge us in court before the event, they just attack the protest when it happens.

State government here is explicitly right-wing (in every state), and the BOR that were being suggested are pretty much dead as a result of attacks from within both major parties. Don't get misled by them being called "Labour", their internal left wing is not much stronger than the left wing inside the Liberal party.

Posted by Moz : 5/04/2007 04:14:00 PM

Aussie must be one of the few countries that purport to be democracies and have no bill of rights.

I guess one reason they don't is that they'd have to face up to the fact that basically, they live on stolen land. (as opposed to just being bad tenants and tardy payers of rent, like us..)

Posted by Rich : 5/04/2007 05:00:00 PM

> This means that merely causing
> offence or annoyance is not a
> sufficient reason for an arrest

I agree. So, presumably, you're opposed to hate-crime laws that restrict free speech?

Posted by Duncan Bayne : 5/04/2007 09:31:00 PM

Duncan: I think I've been quite clear about that here.

Posted by Idiot/Savant : 5/04/2007 10:48:00 PM

> Duncan: I think I've been quite
> clear about that here.

Well I'll be damned - please accept my apologies for insinuating that you wouldn't be.

Posted by Duncan Bayne : 5/04/2007 10:50:00 PM

Although Australia does not have a BORA, the implied right to speak on consitutional matters was firmly upheld by the HCA in Coleman v Power, and it is strongly sourced in freedom of expression and international conventions to which Australia is a signatory and that have been recognised by the HCA. At HCA level, a similar result could be expected.

Posted by Anonymous : 5/04/2007 11:17:00 PM

"This means that merely causing offence or annoyance is not a sufficient reason for an arrest - there needs to be something more."

Not necessarily true - this may depend on the particular paragraph of s 4(1) used, for example if paragraph (b) reads:

"[Every person is liable to a fine not exceeding [$1,000] who] ... In any public place, addresses any words to any person intending to threaten, alarm, insult, or offend that person."

If it's words, rather than behaviour, that is arrested for offence may be enough (if offence was *intended* (or under (c) was reckless).

Posted by Graeme : 5/05/2007 02:03:00 AM

Graeme: the decision was very tightly focused on s4 (1) (a), but there's an implication that the other clauses should likewise be read down, or rather that the key consideration is the propensity of the language used to disrupt public order rather than whether it is offensive or insulting.

Posted by Idiot/Savant : 5/05/2007 12:42:00 PM

Anon: Yes, I'm aware of that. It's freedom of expression for non-political matters which needs protecting. And OTOH, given what Moz is saying, sticking it in statute rather than relying on precedent would be a good way of giving a pointer to the police as well.

Posted by Idiot/Savant : 5/05/2007 12:43:00 PM

I'm not so sure - the word disorderly appears in s 4(1)(a) - it does not appear in 4(1)(b) or 4(1)(c) - they'll have to be read down, but the imperative of dealing with public order isn't engaged.

As for our ANZAC morning protesters, I'm not sure this is particularly helpful - they're actions seem calculated to breach public order, indeed, might even fall within s 3 - disorderly behaviour likely to cause violence.

Posted by Graeme : 5/05/2007 01:46:00 PM

The flag burning protesters should be fine - see Hopkinson and Police. 2004 I think. High Court.

Posted by Anonymous : 5/05/2007 10:06:00 PM