Friday, May 06, 2011

A victory for freedom of speech

On Anzac Day in 2007, Valerie Morse burned a New Zealand flag at a dawn service in Wellington. She was arrested, convicted of offensive behaviour, and fined $500. Today, that conviction was overturned by the Supreme Court. The reason? As in Brooker v Police, public order legislation must primarily be concerned with public order.

Reading the judgement [PDF], its clear that the judges disagree on the specifics. Chief Justice Elias, following Brooker, simply regards it as an exercise in statutory interpretation. The wording and legislative history of that part of the Summary Offences Act makes it clear that it is concerned with public order, and the word "offensive" in s4(1)(a) should not be interpreted in its traditional sense of "giving offence", but as "aggressive". The crime therefore becomes one not of outraging public sensibility (which in practice means the sensibilities of some plod who regards you as criminal scum who needs to be in jail for raising your voice), but of behaving in an aggressive and threatening manner which has a propensity to dissuade others from their ordinary use of public space. This makes all BORA problems disappear in a puff of logic - public order clearly being a justified limitation - along with the convictions. Other judges cling to varying degrees of the old "behaviour which wounds feelings and causes offence" formulation, but all agree that this must be analysed in light of its propensity to disrupt public order in the same way as suggested above. The net result: the conviction is overturned, and its not worth the bother of revisiting.

As with Brooker, this seriously raises the bar on the policing on public protests. The police can't arrest you just because you're saying something they don't want to hear, don't like, or find "offensive". A protest has to seriously interfere with other people, or run a real risk of starting a riot, before they can do so. And even then, they must show appropriate deference to freedom of speech before intervening. The question is whether the police will get the message and take it to heart, or whether they will continue to unlawfully interfere with the public's right to protest.