A decision by the Supreme Court to quash a flag-burner's conviction means the New Zealand flag can now be burnt "any time, anywhere" without fear of arrest, a legal expert says.
Valerie Morse was convicted of offensive behaviour after setting the flag alight in an anti-war protest in Victoria University's law school grounds, opposite the Cenotaph, during the 2007 Anzac Day dawn service. Her conviction was upheld by the High Court and Court of Appeal.
But in a decision released yesterday, the Supreme Court said earlier rulings had mistaken the meaning of offensive behaviour in the Summary Offences Act.
Wellington District Court judge Oke Blaikie found offensive behaviour to mean behaviour capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person. He considered a tendency to disrupt public order was not required.
But the Supreme Court thought otherwise, ruling unanimously that offensive behaviour must give rise to a "disturbance of public order". Because the district court proceeded on a wrong basis of law, the conviction was thrown out.
One military veteran labelled the decision ridiculous and deplorable, but Ms Morse hailed it as a victory for freedom of speech.
We always find it somewhat ironic that activists such as Morse, arrested in the May 2007 Urewera terrorist raids play the "victim for freedom of speech" card. But for the sacrifice made by so many, she would not have that freedom.
As we have blogged previously, there are at least three generations of war veterans in our whanau dating back to Gallipoli in 1915. Sure; they fought to liberate the word from tyrannical regimes and to give their successors freedom, but surely there are limits.
The New Zealand flag, whether we like its design or not is still of huge significance. We can think of fewer things that would be more offensive to war veterans and their families than to see a flag burned at an Anzac Day service where the lives of thousands are being commemorated.
The Supreme Court has, it its wisdom, decided that the rights of the likes of Valerie Morse are more important than those of vast majority of New Zealanders who felt revulsion at Morse's actions four years ago. And the Court seems to have created a dangerous precedent - read on:
However, Auckland University law professor Bill Hodge said yesterday's decision appeared to set a new precedent, giving protesters more right to freedom of expression under the Bill of Rights.
"You can now burn the New Zealand flag any time, anywhere you like, because I can't think of a time any more sensitive with the right people in the right place than Anzac morning in our nation's capital while the morning ceremony is ongoing. Constables will now get an order that you can't arrest people simply for burning a flag.
"I had always thought constables could take action pre-emptively to prevent a breach of the peace, this seems to say you've got to wait till it happens and, to me, that's not terribly efficient."
As we have often mentioned, we are mere bush lawyers. But we are shocked and saddened by the decision handed down by our supposedly most senior and learned judiciary.
This decision more than any other shows what folly was Margaret Wilson and Helen Clark's decision to abandon the Privy Council without a mandate from the electorate. With a bench stacked with the liberal elite handpicked by the previous administration, a decision such as this was inevitable; the chickens have come home to roost.
So next time that Valerie Morse or one of her bleeding-heart buddies burns a New Zealand flag, it is our civic duty to react in the manner in which the Supreme Court found that the attendees at the Cenotaph did not on Anzac Day 2007. If the Supreme Court requires a "disturbance of public order", then it must be given one. After all, the Supreme Court has effectively said that must follow the offensive behaviour in order for it to be deemed offensive! Who are we, as good citizens, not to comply with the Supreme Court?
And we'll leave the last word to one who understands just how saddened many people are by yesterday's Supreme Court decision:
Returned and Services Association Upper Hutt president Syd Giles said the court's decision to overturn Ms Morse's conviction was ridiculous. "I've got one word for what she did – deplorable.
"You can be loyal to your country without agreeing with everything that goes on. To burn the flag is an absolute slight. That's the flag I served under, I think it's disgusting."
8 comments:
A disapointing decision by the SC.
It can, almost, be argued it is another example of the courts being soft on crims.
Even an average bush lawyer such as myself would be able to make that argument Alex; a skilled brief such as yourself would have no problem!
PS - can you e-mail me sometime: inventory2@gmail.com
Valerie Morse and her kind need to be sent on a one way ticket to Afghanistan. Perhaps there she would then begin to understand the true value of the freedom and rights that we currently enjoy which were so bravely fought for by many courageous people all of those years ago. Morse and her kind are just parasites and deserve absolutely no recognition whatsoever. It is such a pity that the liberal elite do not honour the memory of the fallen. Such is the scourge of Socialism.
The problem with NZ's SC is that the chief, Sian Alias, is a low-class British-born pommy Jew.
It appears to my rather limited educated mind, that I am completely at ease existing with, that to rise to the exalted heights of the judicial hierachy in this little two bit rusticated society, you need only a very few talents.
1 an indefatigable record of socialistic arse licking.
2 a political acceptability to the left of center philosophy.
3 a career, notable for its complete lack of exposure to what the real world regards as normal behavior and the ability to maintain that facade of disconnection.
4 A notable acceptance of mediocrity as a commendable trait.
5 A strong connection to the elitism that keeping close to the theoretical/educational/socialistic aspects of the law that ensures survival for this sort of assault on the mores of the common people who pay their grossly inflated salaries and are subject to the idiocy such as the SC has delivered here.
That is why bush lawyers such as yourself Iv2, self and many other dwellers in that real world are so appalled at this insulting ruling in favour of one who would threaten everything we hold dear and our total respect, admiration and gratitude to those who went to war to give us the right to a life in a free society.
Should Ms Morse or any of her ilk burn my nations flag within view of an act of memorial, commemoration or public gratitude I was attending then it is certain that civil disorder would result.
Can we but hope that either the judiciary be accountable to the public scrutiny by way of seeking elected office or that the senior judges be required to seek the confidence of an incoming government by tendering their resignation following a general election.
Perhaps we should have an appeal to the SC of our big brothers and sisters across the ditch as this totally disconnected, provincial ruling is certainly offensive to me and many likeminded.
I am going to respectfully disagree with you, IV2.
I was one of the 75% of the profession that wanted to retain the Privy Council. I am in no way a supporter of the Supreme Court. However...
Whilst I disapprove of our Nation's flag being burnt, I take the view that our veterans (and those of other allied nations) fought for precisely the right of a person to do something that the majority disapprove of in furtherance of political protest. I say this in full knowledge that it will be unpopular, but I say it because I see in the UK the use of public order offences by the police, as proposed here, to control a huge range of political speech, some of it quite moderate and, to most, inoffensive. The UK police forces almost always take preemptive action against protest (or speech making, or preaching, or pamphleteering etc) if another group has threatened to react violently to the proposed action.
That is a convoluted way of saying that when an extremist group threatens violence against the speech of a more moderate group, the moderate group will be always be restrained by the police, often prevented from making their statement at all.
While I understand completely the reasons you advance for your opinion, I do not trust, and do not want to have to trust, the police to be the arbiters of what is acceptable political speech, because they will always choose to restrain the group that they think is the easiest, i.e. law abiding citizens. Those who have threatened violence are almost never restrained because they don't have to be. The threat of a violent reaction is enough for the police to prevent the political speech from going ahead.
The effect is not just a chill on freedom of speech, but an advance towards a police state.
Freedom of speech is one of the most fundamentally important liberties we have. It should only be constrained when there is an actual incitement to violence, not when opponents are threatening violence as a reaction.
It is my view that the blow to Ms Morse's reputation that was caused by her actions was exactly the reaction that is warranted in a society where freedom of speech is valued. A large majority of people see her as an offensive person and now do not value her opinion nearly as much as they may have previously. Ergo, the more she is disapproved of by the populace, the less effective she is in conveying her message and the less people take notice of her. That is what freedom of speech is all about.
Notwithstanding the indictment that is made upon Ms Morse for resorting to such a low form of political expression, it is not worthy of criminal charges (unless Parliament see fit to criminalise the act. I have no problem with that because I see that approach as protecting the national symbol, not limiting free speech- I do not defend flag burning per se but rather the right to do so while it is not illegal).
Unlike alex, I do not see it as the SC being soft on crims. I see it as the SC in fact defending freedom of political speech. I especially say that because the sole dissenter in this was Willie Young, the most pro-prosecution, pro-authoritian judge on the Supreme Court. If Justice Young opposed this decision then it must be a good one.
In conclusion, it is my view that political speech, even if offensive to the majority, must be protected, unless that speech is itself inciting violence. We must use a threatened loss of self-control by opponents as an excuse to limit our freedom of speech. Rather, we must expect all persons to maintain self-control, even in the face of opinions they disagree with.
Appreciate your eloquent reply FE. If I was ever in need of a brief, I'd be giving you a call; you argue your case well.
A good post I2.
I continue to ask the question: why would you give up access to the best legal minds in the Commonwealth when that access did not cost us a cent?
A completely selfish, ego driven decision by Clark and co.
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