Fighting the last war

Jock Anderson still just can't get over the fact that "leftie protestors" are allowed to burn flags as a form of protest. And it's all because of those meddling judges ... .

Having arrived back in the country, I note there's been a fair bit going on while I was away that I could profitably comment on. Campaign funding matters seem to have become unnaturally prominent. MFAT officials are letting criminals flee back home without their Minister knowing anything about it. Trevor Mallard hopes to someday be able to own a pet Moa (and I think he wants to call it "Tau").

So, of course, with this welter of topics before me, I'm going to pick up on some comments made in Jock Anderson's most recent sub-Mortimer-pastiche column on legal matters in the New Zealand Herald.

Taking advantage of Justice Ellen France's elevation to the presidency of the Court of Appeal, Anderson scratches an old itch by revisting her overturning in 2004 of (in Anderson's words) "what many Kiwis felt was the justified conviction of leftie protestor Paul Barry Hopkinson for burning the New Zealand flag." (Te Ara has an entry on Hopkinson's actions and the subsequent legal actions, if you need a refresher.)

Now, I don't know the basis for Anderson's claim that "many Kiwis" feel Hopkinson's conviction was justified. There's probably a substantial amount of confirmation bias at work, but having talked about this case to a lot of audiences over the years, I simply haven't met many folk at all who think that burning a New Zealand flag as a form of protest ought to be a criminal offence in and of itself. And certainly there's been no loud demands for Parliament to rework the relevant legislation, the Flags, Emblems and Names Protection Act 1981, so as to reverse the decision in Hopkinson and make it clear that the act of flag burning must be viewed as a criminal one.

Maybe Anderson doesn't mean that "many Kiwis" think Hopkinson's protest actions ought to be punishable by law per se, but rather because there was a law on the books that appeared to cover his actions, it ought to have been applied to him. Which is a different sort of argument, because you can think a given law is a dumb one, but also think that it is important that laws be enforced generally (even those you personally think are dumb).

I have greater sympathy for that position. The problem with it is, of course, that you need to know what a law says in order to enforce it. That then requires a judge in a court to make a determination as to what the words that Parliament has put into its enactment actually mean. And in the case of Hopkinson, you had an offence provision enacted in 1981 and not used even once until 2004, at which time it falls to Justice France to make sense of it for the very first time. That provision makes it an offence to "within view of any public place, uses, displays, destroys, or damages the New Zealand Flag in any manner with the intention of dishonouring it."

So here are the questions Justice France had to resolve. What exactly does "dishonour" mean, in relation to destroying or damaging a flag? Does it simply mean whatever the individual MPs who were told by Robert Muldoon to vote for this law thought it meant back in 1981 (insofar as it's possible to tell what such a bunch of individuals might have thought about a case like this)? But do we really want a law fashioned 23 years earlier by Robert Muldoon's Parliament at the time of the Springbok Tour to be applied in a mechanical fashion to govern behaviour in the quite different world of (as it was then) 2004? What about the fact that in 1990 a different Parliament gave a legislative guarantee of freedom of expression, and told judges to (where they "can" do so) interpret other statutes in a way that is consistent with that freedom? Doesn't that latter parliamentary intent override the earlier one?

So for me Hopkinson is a classic hard case leading to what is an at least questionable  legal outcome. Because it is difficult to marry any sort of sensible "parliamentary intent" for the offence provision with an outcome that still allows Mr Hopkinson to walk free. The truth of the matter rather is that the legislation was a relic of a different time and way of thinking that would not be part of our law if today's Parliament were to reconsider it. And yet it is still "the law"  - so should Mr Hopkinson have to suffer the consequences of breaching what it apparently was written to do, just because Parliament hasn't gotten around to getting rid of it? 

In relation to this last question, I note that Stephen Franks' answer is an unequivocal "yes". The law was, to him, completely clear and so Justice France should have just convicted Mr Hopkinson irrespective of any doubts about the overall desirability of the offence provision. It isn't then clear whether Franks himself actually is in favour of criminalising the burning of the New Zealand flag, in that it's a bit hard to reconcile his claim that "I do not find flag-burning especially offensive per se" with his earlier press release claiming that "[t]he 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." Does he really mean to claim that because he is not offended by the burning of a flag, the action of doing so is inherently incapable of conveying any sort of expressive meaning whatsoever to him - it's the functional equivalent of a person making a political speech to him in Urdu or Finnish? Because if flag-burning is able to convey some meaning to Franks even without provoking any personal sense of outrage in him, then on his own (somewhat unusual) test for what counts as "expression", it constitutes a form of free speech. And as a liberal proponent of free speech values, surely he can't possibly support the suppression of speech for no reason other than that it upsets others ... or has he forgotten his J.S. Mill?

I mention Franks here both because I think his position on flag burning laws encapsulated everything that went wrong with the ACT Party in the 2000s - trying to be "liberal" champions of personal freedom whilst also riding the populist law and order bandwagon wherever it would take them - and also because Anderson holds him in such obvious high esteem. Indeed, Anderson continues his column by claiming:

In a plea which was ignored, Mr Franks called on the new Supreme Court to lay down guidelines for judges to re-establish a self-restraint respectful of clear parliamentary intention.

Seven years on, in 2011, a Supreme Court headed by Dame Sian Elias quashed Anzac service flag-burner Valerie Morse's offensive behaviour conviction, which Auckland law professor Bill Hodge said effectively meant the New Zealand flag could be burnt "any time, anywhere" without fear of arrest.

This is plain wrong on two counts. First of all, in 2007, in a case called R v Hansen, the Supreme Court laid down exactly the sort of "guidelines" that Franks wanted to see put in place. As summarised here,

If the Court cannot recognise [a limit on one of the NZ Bill of Rights Part II rights] as justified, the majority noted that s 6 will be used to try and allow a consistent interpretation of the enactment, which reconciles the inconsistency with the Part II right. The Court, including Elias CJ, was unanimous that s 6 is a weaker version than s 3 of the Human Rights Act 1998 (UK). McGrath J noted that any linguistic similarities between s 3 of the UK Act and s 6 of BORA were irrelevant, given the different constitutional status of the two Acts, with BORA intentionally being designed to make the Courts subservient to Parliament’s intention. The Court will only apply s 6 where a meaning is linguistically tenable, with regards to the wording of the section and the intention of Parliament.

The consequence of this approach was that in Hansen's case, his conviction for possessing cannabis for supply was allowed to stand even though the Supreme Court believed it had been reached in breach of his fundamental right to be presumed innocent. The Court's reasoning was that it had no alternative but to allow that outcome, because Parliament's enactment allowed for no other linguistically tenable interpretation, given its clearly expressed intention to remove the right.

It is strongly questionable whether the approach Justice France took in Hopkinson would have met this Hansen guideline. We'll never know for sure, because no charges will ever be laid against flag burners under the Flags, Names and Emblems Protection Act again. But in any case, the fears Franks expressed that R v Hopkinson heralded a new era of judicial activism in which laws would only mean what particular judges wanted them to mean just haven't been bourne out.

Second, Anderson is wrong to rely on Bill Hodge's account of the effect of the Morse decision, because Bill Hodge is wrong in what he claimed about it. The Supreme Court simply did not say in its judgment that you can burn a New Zealand flag anywhere, for any purpose, without fear of legal consequence.

(I temper my criticism of Hodge's remarks here with the recognition that trying to make immediate media comment on a case without having time to really look at it in detail or think about the consequences fully is always difficult. Believe me. Because I've made the same sort of mistakes myself.)

As I noted on the effect of the Supreme Court's decision in the Morse case at the time (with emphasis in the original);

we do not know if it is legally permitted to burn a New Zealand flag as a form of protest at an ANZAC Day ceremony or other event. What we do know (sort of - more on this in a second) is the test that the Supreme Court thinks needs to be used to decide if the law - specifically, the prohibition on engaging in "offensive behaviour" in a public place - permits or does not permit a given protest action. But whether this test is met in any particular case depends upon the facts on the ground ... which means that unless and until we know those facts, we can't say if a given activity (such as burning the flag during an ANZAC Day ceremony) is permitted.

And in case you don't believe me, here's the more intelligent and personble Steven Price saying much the same thing.

So, sure, The Hopkinson decision was sort-of interesting. And flag burning is always good for a headline (which is why protestors burn flags). But sometimes you just need to get off a hobby horse and let it enjoy its last years out at pasture.