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.