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Different types of protests

Flag burning

Burning the New Zealand flag

Flags, Emblems, and Names Protection Act 1981, ss 11, 24 Summary Offences Act 1981, s 4(1)(a) Case: Morse v Police [2011] NZSC 45 Case: Hopkinson v Police [2004] 3 NZLR 704

When activists in Aotearoa have burned the New Zealand flag, the police have tried to get convictions using two different laws. They are both minor offences only, and the penalty for each one is only a fine.

One of these is a law that is specifically about protecting the flag. This says it’s a 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 standard, and simply burning a flag does not reach this level. You would need to do something else as well – perhaps stomping or spitting or urinating on the flag’s ashes.

The other offence that flag-burners have been charged with is the more general offence of “offensive behaviour”. You can be fined up to $1,000 for this. This law says it’s an offence to behave in an offensive manner either in a public place or where you can be seen from a public place.

However, it won’t be enough that the behaviour was “offensive” in the usual sense, of producing anger, resentment, disgust, or outrage in others. To get a conviction against you, the police would also have to show 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

Case: Hopkinson v Police [2004] 3 NZLR 704

In the last 20 years there have been two prominent court cases about flag burning, involving activists being charged under two different laws. In both cases, the judges interpreted the law in a narrow way to the activist’s advantage, so that the end result was that the activist wasn’t convicted.

Protest against the Iraq War outside Parliament in 2003

In March 2003, the defendant H had burned the New Zealand flag in a protest outside parliament against the war against Iraq.

H was charged under the specific laws that protect the New Zealand flag, rather than with disorderly or offensive behaviour under the general criminal law (see the second example below). The particular offence was that he had destroyed the flag with the intention of “dishonouring” it. H was convicted in the District Court and fined $600 (as well as 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 H 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 H’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 celebration

Case: Morse v Police [2011] NZSC 45

The defendant M had burned the New Zealand flag near to 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.

M wasn’t charged under New Zealand’s specific flag laws (see the example above), but under the more general laws in the Summary Offences Act about offensive or disorderly behaviour. Specifically, she was charged under section 4(1)(a) of that Act with offensive behaviour in a public place.

M 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 M’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 said 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.

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