Thursday, June 23, 2016

The revolution in freedom of expression law continues

Back in 2007, the Supreme Court ruled in the case of Brooker v. Police [PDF]. The case represented a victory for the freedom to protest, significantly raising the threshold for prosecution for the public order offence of "disorderly behaviour". A majority of the Court applied a traditional analysis, balancing the insult to the values of "right thinking" member of the public test against freedom of expression (and weighing that heavily in light of the Bill of Rights Act). But it was Chief Justice Sian Elias' judgement, which approached it as a matter of straight statutory interpretation from the basis that public order law was about public order and disruptions to the use of public space, which has been the most influential. And so a few years later, in Valerie Morse v. Police [PDF], the offense of "offensive behaviour" was viewed not as primarily about giving offence as aggression and threat which interfered with the use of public space (the upshot being that quietly burning the flag at an Anzac Day dawn service simply didn't meet the threshold).

And now we have another example, with the Court of Appeal applying the same logic to rule that non-sexualised public nudity is not "offensive behaviour":

The bench of three learned judges at the Court of Appeal said the crucial question to consider was whether a conviction for offensive behaviour required the behaviour to be seen and that it actually disrupted public order.

The crown contended that it was enough that Ker was capable of being seen and his nudity had the potential to disrupt public order.

But ​the court ruled that offensive behaviour had to be observed - otherwise it could not cause public disorder -
and must actually disturb public order.

Because there was no evidence Ker had offended anyone or caused any problems, his conviction was quashed.

[Emphasis added]

Which is as it should be. If you're not causing anyone any grief, the law should leave you alone. Sadly, as with the previous rulings, it may take the police a while (and a pile of failed prosecutions) to get the message.