Valerie Morse v The Police  NZSC 45 (6 May 2011)
The Supreme Court of New Zealand has found that the right to freedom of expression contained in s 14 of the Bill of Rights Act 1990 (NZ) requires an objective approach to the determination of charges of offensive or disorderly behaviour for the purposes of s 4(1)(a) of the Summary Offences Act 1981 (NZ). The provision is directed at behaviour which, when objectively assessed, disrupts order in, or within view of, a public space. Whether those present are offended as a matter of fact, is only one consideration to be taken into account.
The appellant Valerie Morse, a member of the group Peace Action Wellington, attended a protest on ANZAC day 2007, at which she set fire to a New Zealand flag. The protest was organised to oppose New Zealand's military involvement in Afghanistan and other foreign conflicts. The appellant was charged with behaving “in an offensive or disorderly manner … in or within view of any public place'” under s 4(1)(a) of the Summary Offences Act 1981 (NZ). The appellant admitted to having set the flag alight in the grounds of Victoria University, within view of those attending the dawn service across the road at the Wellington Cenotaph. On conviction, the appellant was ordered to pay a fine of $500, court costs and witness fees. Her appeals to the High Court and the Court of Appeal were dismissed. Her further appeal to the Supreme Court of New Zealand raised the meaning of s 4(1)(a) in the context of her right to freedom of expression under s 14 of the Bill of Rights.
The leading judgment was delivered by Elias CJ, who found that the first task of the Court was to interpret the public order offence in accordance with s 6 of the Bill of Rights, which 'requires the meaning the least restrictive of the rights in Part 2 to be given to the provision.'
Elias CJ found that the words 'offensive' and 'disorderly' were both directed at the preservation of public order. Thus it is not sufficient that persons present be offended if public order is not disrupted. Similarly, the conduct complained of need not be violent or likely to lead to violence. However, the relevant behaviour must be such as to interfere with use of the public space by any member of the public, as through intimidation, bullying, or the creation of alarm or unease at a level that inhibits recourse to the place.
Elias CJ stated that the text, purpose, and context of the offences described by s 4(1)(a) make it clear they are concerned, not with the protection of individuals from upset, but rather with 'the protection of the public from disorder calculated to interfere with the public’s normal activities'. The conviction was therefore entered on an erroneous view of the elements of the offence. What constitutes 'offensive' behaviour was wrongly treated as a contextual judgment arrived at after balancing the interests of the appellant against the impact of her expression on the feelings of those present.
The offence provision was then considered in the context of the freedom of expression protected by s 14 of the Bill of Rights. Preservation of public order is recognised by art 19 of the International Covenant on Civil and Political Rights (on which s 14 is based) to be a basis on which the freedom of expression recognised by s 14 of the Bill of Rights is properly limited. Elias CJ considered that s 4(1)(a) of the Summary Offences Act 1981 was intended by Parliament to limit freedom of speech in order to protect public order, stating that: '”other offences strike similar legislative balances in protection of other legitimate interests.'” However, 'offensive' behaviour is behaviour which, objectively assessed, disrupts order in a public space. As Anderson J stated, s 4(1)(a) of the Summary Offences Act 1981 must be interpreted in light of ss 5, 6, and 14 of the Bill of Rights, notwithstanding that in ordinary speech insulting or offensive language is language which reasonably does or would be expected to wound feelings. Since this approach to the interpretation of the offence differed from the view taken in the District Court, Elias CJ considered that the hearing had miscarried. Further, given the four years already taken in the lengthy appeal process, and the maximum available penalty of only NZ$1000, the Court did not consider it necessary to order a retrial. The conviction was set aside.
Relevance to the Victorian Charter
The decision is relevant to the interpretation and application of provisions in the Charter of Human Rights and Responsibilities Act 2006 (Vic) which are equivalent to ss 5, 6 and 14 of the Bill of Rights. For example, Elias CJ's statement that s 6 of the BORA requires the least restrictive meaning to be given to the protected rights could be applied to the interpretation of s 32 of the Charter, which also requires statutory provisions to be interpreted compatibly with human rights, to the extent that this is consistent with the purpose of the provision. In particular, the decision may be persuasive in the context of interpreting statutory provisions which purport to impose a limit on the right to freedom of expression contained in s 15 of the Charter. Under s 15(3)(b), that right may be subject to lawful restrictions reasonably necessary to protect public order. The decision suggests that the right to freedom of expression protected by the Charter should be given a wide scope. It is arguable that the elements of statutory offences designed to protect public order will not be satisfied unless, when assessed objectively, public order has been disrupted.
The decision is at http://www.nzlii.org/nz/cases/NZSC/2011/45.html.
Katherine Cooke is a lawyer at Allens Arthur Robinson