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It is the Court, not flag burning, we should worry about

  • May 11th, 2011

Interesting to review blogs and newspaper commentary on the Supreme Court's decision that Victoria Morse should not have been prosecuted for flag-burning and tooting to drown out an ANZAC dawn service.

Cathy and I were there, with one of our children, within a few metres of Morse and her mates. We were offended when the speaker was drowned out. If the Police had not arrested them so promptly I think even my polite wife (the daughter of a father and grandfather each awarded the Military Cross) might have been part of the crowd movement to end the interruption physically. 

So  I understand the anger at Morse, though I do not find flag-burning especially offensive per se. The offense lay in her intent, which was to upset people by showing how she despised their reverence at our country's only widely shared solemn ceremony.

And now that offense is compounded because she has exposed both our constitutional fragility before activist judges, and inadequacy in our top court at its work.

I say the Supreme Court judges have not done their job because their reasoning is opaque. I've read it carefully. I think I know what they are groping to say. Bill Hodge may not summarise it entirely accurately in his comments reported by Stuff.

"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"

He gets close, but several of the judgments expressly say that they do not mean that the conduct must actually provoke disorder in order to be legally offensive. It is too hard to work out what rule they think does or should apply. So they've not acheived the simple purpose of a final appeal court – to clarify the law and to draw together threads of reasoning to make it predictable, to guide lawyers and  the conduct of ordinary non-lawyers in the future.

They've left instead  a morass of big words and significant looking contrasts of possible meanings and concepts, without finding guiding principles. Try reading it.  They fail a simple test. Could a constable draw from their wordy pages a conduct-guiding  logic to tell when they can, or cannot, arrest a person setting out to cause offense to their fellow citizens? I can't.

I respect the care the Supreme Court judges have taken. I welcome their affirmation that freedom of expression is so valuable that citizens must tolerate being offended from time to time. There is no doubt that the apparent simplicy of the words of the charge must be qualified to uphold freedom of expression. But none of that excuses leaving conclusions that can not be applied practically. We now have what Willie Young J warned against in the Court of Appeal judgments overturned.

"I am distinctly unenthusiastic about any … approach under which every public disorder case which engages rights protected under the New Zealand Bill of Rights Act 1990 (NZBORA) must be resolved by an evaluative exercise which is legal in character and thus capable of being re-litigated through the appeal system."

Sadly, Ms Morse has given us evidence that our Supreme Court may not be as good at its job as the Court below it.

On the activism point, there is a history which I've not seen explained in the recent media commentary.

The Police had to lay the charge of disorderly and offensive conduct because an earlier High Court decision had gutted the legislation designed specifically to cover the issue, I took this issue up as an MP in 2004. Here is my media statement at the time: 

Flag Burning Is Not Speech

 21 May 2004

If the courts find that the Bill of Rights obliges them to support Paul Barry Hopkinson’s defence to charges of dishonouring the New Zealand flag, Parliament should immediately change the law, ACT New Zealand Justice Spokesman Stephen Franks said today.

“The effect of flag-burning derives solely from its power to shock and offend.  It is not speech; it is not expression.  It is the suppression and destruction of others’ expression,” Mr Franks said.

“Our forebears fought to protect freedom to debate, to reason.  They had in mind freedom to persuade by reasoned words, and perhaps evidence of commitment and passion.

“Flag-burning derives its impact only from its offensiveness.  The burner is saying they feel so strongly that they are willing to risk punishment, and willing to trample people’s emotions to be heard.

“Even flag-burners should want the law upheld.  To remove the legal penalties – or not to enforce them – deprives the burning of significance.

“The best thing that could come out of this case would be a non-political public debate about the New Zealand flag, about what it should mean, and what it should be


A subsequent letter to the Attorney General was widely reported as a call to change the law to make flag burning illegal. In fact, I asked her to appeal a badly reasoned decision which said it wasn't illegal, as a prelude to restricting judicial activism. Here's the text of the letter of 7 August 2004:

Paul Barry Hopkinson v. NZ Police

I would be glad to know whether the Crown will appeal the judgment of France J. and if not, why not?

You will be aware that the Court held that Hopkinson’s flag burning was not a contravention of Section 11(1)(b) of the Flags, Emblems and Names Protection Act 1981. I am quite confident that not a single member of the Parliament that passed the measure would have shared that view. Even members who opposed it, if there were any, would have thought they were prohibiting precisely the kind of action Hopkinson indulged in.

If the Crown does not plan to appeal, I urge reconsideration of that plan.

I believe the decision takes what could be reasonable precedents into dangerous territory. Respect for the law is endangered when a judge appears to strike down a statutory provision. The Supreme Court should be given a chance to lay down more sensible principles, but if it does not, Parliament must legislate to re-establish the authority of the people through their elected representatives.

The Court may have felt obliged by precedent to reach its conclusions. Nevertheless the judgment is an example of human rights induced judicial activism. Whatever the elegance of the legal reasoning, to ordinary citizens subject to the law it will remain sophistry to conclude that deliberately burning a flag to show detestation of actions of New Zealand by its Government, is not “to destroy or damage the New Zealand flag in any manner with the intention of dishonouring it”.

There is justified cross-party concern about judicial activism. Parliament must take into account any propensity to give words strained if not fanciful meanings, when drafting legislation. In the longer term I believe we will need to amend the Judicature Act or the Interpretation Act or at least the Human Rights Act, to make it plain that a claimed special status to advance human rights is no excuse for judges to over-ride or reverse legislation.

Before we do that we should give the new Supreme Court an opportunity to express itself on these matters and perhaps to lay down guidelines. If the judges can re-establish a self-restraint which is respectful of clear parliamentary intention that would be preferable to legislation.

For the avoidance of doubt this letter does not express an opinion on the desirability or otherwise of law to prohibit flag desecration. I am concerned about the decision’s corrosion of the rule of law irrespective of the particular outcome.

I look forward to learning of the Crown’s decision.

As far as I recall the Attorney General did not reply and the Court of Appeal did not get an opportunity to consider the case.

Interestingly, the Supreme Court managed to get through its entire Morse decision without acknowledging that the Police were only obliged to use the disorderly and offensive behaviour charge because of the judicial sophistry in the earlier Hopkinson case, which gutted the legislation specifically designed for the circumstance.  The more comprehensible judgments of the Court of Appeal acknowledged the Hopkinson judgment, though not its effect in gutting the legislative provision.

When judges rule that the NZ Bill of Rights allows them to say that clear Parliamentary words do not mean what they say they accelerate four bad trends:

  • legislator contempt for judicial reasoning.  MPs can interpret demands from judges that Parliament respect "the rule of law" as just a mask for judicial  dislike of democracy, an ambition to usurp elected law-makers;
  • a law drafting style that spells out rules in ridiculous detail, lest judges abuse discretion by negating the Parliamentary intention;
  • public mistrust of judicial common sense and values; and,
  • Police cynicism about the value of upholding a rule of law which is the plaything of judges. When Police lose respect for judges they can justify extra-legal conduct to keep the peace and to protect the reasonable expectations of innocent people.

None of these consequences add to respect for the Bill of Rights.


[…] Interesting commentary here from Stephen Franks on the Supreme Court’s decision to acquit Victoria Morse for flag-burning and tooting to drown out an ANZAC dawn service in 2007. […]

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