Brooker v The Police  NZSC 30 (4 May 2007)
The Supreme Court of New Zealand has recently considered the extent to which privacy limits freedom of expression in the context of the Bill of Rights Act 1990 (NZ).
The appellant, Mr Brooker, considered that a police constable had acted beyond her powers in the execution of a search warrant. To show his concern regarding the use of the warrant by the police constable he engaged in a public protest outside her home. In particular, Mr Brooker approached the constable’s home at 9.20am in the full knowledge that she had just finished her night shift. He proceeded to knock on her door to ensure she was home and was then asked by the constable to move off her property. He did this almost immediately, however, he then sat on the grass median strip in front of her house and proceeded to sing and hold banners that proclaimed ‘no more bogus warrants’. The ‘protest’ lasted approximately 25 minutes, and was concluded by Mr Brooker being arrested for intimidation. He was charged and convicted of the offence of ‘offensive behaviour or language’ under s 4 of the Summary Offences Act 1981 (NZ).
The Supreme Court of New Zealand was most concerned with what constitutes ‘disorderly behaviour’ and, in turn, the extent to which the right to privacy could limit freedom of expression in this case.
Mr Brooker’s behaviour was found not to constitute disorderly behaviour. The Court considered this point in order to determine whether the behaviour of Mr Brooker was sufficient, first, to qualify as a criminal act under the Summary Offences Act, and second, to justify a limitation (pursuant to s 5 of the NZ Bill of Rights) on freedom of expression as provided for under s 14 of the NZ Bill of Rights. Tipping J reformulated the test for disorderly conduct to be ‘disorderly if, as matter of time, place and circumstance, it causes anxiety or disturbance at a level which is beyond that which a reasonable person would be expected to bear.’ Elias CJ and Tipping and Blanchard JJ found that due to the short duration of the ‘protest’, the quiet singing and Mr Brooker’s adherence to requests by the police, Mr Brooker’s behaviour was not beyond that which a reasonable person would be expected to bear. The minority disagreed and found that the behaviour was an invasion of privacy as the protest was undertaken at a time when the constable was intending to sleep. After dealing with disorderly behaviour and its effects on public order, each of Elias CJ, Blanchard and Tipping JJ considered the balance to be struck between freedom of expression and the right to privacy. The majority found that an ‘expansive’ meaning of ‘disruptive behaviour’ would be inconsistent with freedom of expression as provided for in the NZ Bill of Rights. Further, the majority found that although art 19 of the International Covenant on Civil and Political Rights permits restrictions on the freedom of expression, it would be difficult to accommodate this for two reasons. First, the section in question was not drafted to protect interests such as privacy or residential quiet. Second, the NZ Bill of Rights does not allow for this restriction in its provisions in any event. The majority found that Mr Broker’s behaviour was not enough to limit his entitlement to freedom of expression. Again the minority disagreed with these findings and gave greater weight to s 5 of the NZ Bill of Rights, which allows restrictions on rights where they are reasonable and demonstrably justified. Both McGrath and Thomas JJ were concerned with the protest taking place in a residential area and impinging on the concept of ‘home’.
Implications for the Victorian Charter
Section 32(2) of the Charter allows for the use of judgements from international foreign courts relevant to human rights when interpreting the Charter and its provisions. This case may be relevant to the interpretation and application of ss 7 (limitations on human rights), 13 (right to privacy) and 15 (right to freedom of expression) of the Charter. This judgment gives careful consideration to what is required to justify restricting a right, particularly one as important to a democratic state as freedom of expression. It underlines that when interpreting legislation it is essential to ascertain the legislative intent of the section and whether restricting a right such as freedom of expression was envisaged by the legislature. If this intent cannot be found, the majority in this judgement encourages interpretation of a piece of legislation to err on the side of caution when there is a possibility of restricting a right by operation, for example, of the right to privacy, which is contained in s 13 of the Charter. The decision is available at http://www.nzlii.org/nz/cases/NZSC/2007/30.html. Emma Wanchap, Human Rights Law Group, Mallesons Stephen Jaques.