Activism
Different types of protests
Flag burning
Burning the New Zealand flag
It is not an offence simply to burn the New Zealand flag. In fact, the Ministry of Culture and Heritage advises people to dispose of old flags by burning them.
However, the police have tried to get convictions against activists who burnt the New Zealand flag for offences under two different laws. Both these offences are minor and carry a maximum penalty of a fine.
Flags, Emblems, and Names Protection Act 1981, ss 11, 24 Case: [2004] 3 NZLR 704
Under the Flags, Emblems, and Names Protection Act 1981, it is criminal offence to destroy or damage the New Zealand flag in any way, if you do this with the intention of “dishonouring” the flag. The penalty is a fine of up to $5,000. However, this is a high threshold and simply burning the flag does not meet it. You would need to do something else as well to be convicted – perhaps stomping, spitting or urinating on the flag’s ashes.
Summary Offences Act 1981, s 4(1)(a) Case: [2011] NZSC 45
The other offence that flag-burners have been charged with is the more general offence of “offensive behaviour” under the Summary Offences Act 1981, for which the fine is up to $1,000.
You cannot be convicted of “offensive behaviour” simply on the basis that your behaviour led to anger, resentment, disgust, or outrage in others. For you to be convicted, the police would also have to prove that your burning of the flag was so offensive that it affected “public order”. For your behaviour to have affected “public order” it seems that it would have had to prevent other people using the public space for their purposes.
Examples: Two flag-burning cases
In the last 20 years there have been two prominent court cases about flag burning. In both cases, the activists who had been charged were initially convicted, but these convictions were overturned on appeal.
Protest against the Iraq War outside Parliament in 2003
In March 2003, the defendant, Mr Hopkinson, had burned the New Zealand flag in a protest outside parliament against the war against Iraq.
Hopkinson was charged under the Flags, Emblems, and Names Protection Act 1981. The particular offence was that he had destroyed the flag with the intention of “dishonouring” it. Hopkinson was convicted in the District Court and fined $600 (and also ordered to pay court costs of $130), but he appealed to the High Court, which allowed his appeal and overturned his conviction.
The High Court judge interpreted New Zealand’s flag law in a flexible way to give effect to the right of freedom of expression in the Bill of Rights. The judge basically said that there were two different ways to interpret the flag law – one broader and one narrower – hinging on the word “dishonouring”.
The judge decided you could interpret “dishonour” in its natural and ordinary meaning, meaning to disrespect the flag, and that what Hopkinson had done came within that meaning. But you could also interpret it more narrowly as only being about more extreme cases where someone intends not just to disrespect the flag but to “vilify” it. The judge said that Hopkinson’s behaviour wasn’t extreme enough to amount to vilifying the flag, which “would have required some additional action… beyond a symbolic burning of the flag”.
This is an example of how the Bill of Rights interacts with other New Zealand laws. Basically, if some other Act (like the Flags, Emblems, and Names Protection Act) can be given an interpretation that is consistent with the rights in the Bill of Rights, then the judge must give it that interpretation.
Disrupting an Anzac Day commemoration
The defendant, Valerie Morse, had burned the New Zealand flag near an Anzac Day dawn service in 2007. She had set fire to the flag in the grounds of the Victoria University Law School across the road from Wellington’s Cenotaph memorial, where people had gathered for the dawn Anzac Day service. She was protesting against New Zealand’s military involvement in Afghanistan.
Morse was charged with offensive behaviour in a public place under section 4(1)(a) of the Summary Offences Act 1981.
She was convicted in the District Court, but she appealed three times, all the way up to the Supreme Court, where she was finally successful.
In allowing Morse’s appeal, the Supreme Court judges said all three of the lower courts (the District Court, the High Court, and the Court of Appeal) had got the law wrong by interpreting the word “offensive” in this context to be about balancing the defendant’s right of expression against the feelings or interests of other people nearby.
The Supreme Court found that this particular section of the Summary Offences Act was also about disrupting public order. So, it wasn’t enough that the flag-burning was objectively offensive to reasonable people – it had to be so offensive that it would interfere with public order and so disrupt the public’s normal activities in that public place.
