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Flag that
By Steven | May 7, 2011
Anyone reading today’s front-page story on the Morse flag-burning decision has every right to be confused.
The paper correctly reports that the Supreme Court has found that it’s necessary to prove that offensive behaviour must give rise to a “disturbance of public order” before a conviction can be entered. But the paper reports that a protester was punched after the burning. Did the court decide that wasn’t a disturbance of public order?
The paper notes that:
It is illegal under the Flags, Emblems and Names Protection Act of 1981 to destroy the flag with the intent of dishonouring it.
Did the court also rule on that Act, and perhaps find that it, too, required some sort of disturbance of public order?
The paper reports Bill Hodge saying the decision means the police no longer have the right to pre-emptively take action to prevent a breach of the peace. Is that what the judges say?
No, no and no.
The punch
The punch wasn’t thrown at Valerie Morse, but at another protester, who had blown a horn, then tussled with the police when they tried to remove the horn, then tried to run away through the crowd. (This is discussed in the judgment). It wasn’t in any sense a consequence of the flag-burning and the Crown didn’t allege that it was. If someone had tried to punch Valerie while the burning flag was aloft (or throw something at her or threaten her), there’s an interesting question about whether that would be the sort of disturbance of public order that the Supreme Court were talking about. After all, you can’t hold a protester responsible for the unreasonable reactions of onlookers. The thrust of the decision, I think, is that onlookers are generally required to show restraint and tolerate the views and methods of protesters, even if they despise those views or methods.
What’s more, most of the judges noted that there was some level of disturbance of public order in response to the Anzac day protest. Some at least might have been prepared to say that it was enough disturbance for her to be convicted. But they weren’t confident about the evidence, and didn’t think it was fair to hold it against her since during the trial nobody had realised how significant it was. For example, the defence might well have cross-examined harder about it.
The Flags, Emblems and Names Protection Act
This wasn’t mentioned by the court at all. Valerie wasn’t charged under it. You might remember that Paul Hopkinson, who protested at Parliament against the Iraq war by burning a flag was prosecuted under this statute. You might remember that he got off on appeal. The judge said our right to freedom of expression under the Bill of Rights meant that the offence had to narrowly interpreted. It required an intent to villify the flag. Most protesters don’t have that. Most plainly use the flag as a vehicle to protest against particular government actions and policies.
That case rather made the Flags, Emblems and Names Protection Act a dead letter. One of our arguments before the Supreme Court was that the prosecution shouldn’t be allowed to use the vague offence of offensive behaviour to avoid a prosecution under the Flags Act, which Parliament clearly intended to be the relevant offence. The Court didn’t address it.
Powers of arrest
I think Bill Hodge is wrong. There is no discussion in this case of the police’s powers concerning breach of the peace. They still have the power to arrest to prevent an imminent breach of the peace. This is essentially a crowd control measure, and doesn’t itself mean that an offence has been committed by anyone. This case doesn’t change that.
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