Igniting debate
May 10, 2011
Yesterday, I was on TVNZ’s Breakfast show to talk about the Morse decision.
Topics: Protest speech | Comments Off on Igniting debate
Flag that
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.
Topics: General | Comments Off on Flag that
Victory for protesters’ rights
May 6, 2011
Valerie Morse has won her appeal in the Supreme Court against her conviction for offensive behaviour for burning a NZ flag in protest at the 2007 Anzac Day dawn ceremony. (I represented her, along with Tony Shaw and Felix Geiringer).
Valerie lost in the District Court, High Court and Court of Appeal. But the decision in the Supreme Court was unanimous in her favour. They have found that protesters can’t be arrested and convicted for offensive behaviour unless the police can show there is a disturbance of public order.
Topics: NZ Bill of Rights Act, Protest speech | Comments Off on Victory for protesters’ rights
Journalists I like
May 4, 2011
I’m conscious of the fact that I often bag on journalists and media organisations. So I’ve decided to throw out the occasional bouquet too, in the interests of balance.
First up: take a bow Margo White. Her recent Listener story on the Maungatautari Ecological Island reminded me what a terrific journalist she is: thorough, smart, fair, and eloquent. She had to boil down some particularly tough issues and hold the balance between the warring factions. Gareth Morgan’s slightly whiny claim that she’d failed to “grasp the nettle” seems little more than a complaint that she didn’t side with him.
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Information sharing recommendations
May 4, 2011
New Zealand’s laws setting out what information government agencies are able to share with each other is a bit chaotic. In the Brown case, the judge noted with alarm that the Department of Corrections had cited the Privacy Act for its refusal to share information about a recently released convicted pedophile with Police in the locality he’d moved into. Apparently, this has been sorted, but similar issues crop up all the time. The Law Commission has come up with what look to me like a sensible set of recommendations for dealing with government information-sharing. Essentially, they suggest a process for developing approved sharing programmes through Orders in Council, against a set of criteria requiring necessity, transparency, and safeguards.
Topics: Privacy Act | Comments Off on Information sharing recommendations
Is the BSA becoming more conservative?
May 3, 2011
Broadcasters claim that our new crop of BSA members are more conservative than the last lot. They point to the decisions upholding good taste and decency complaints against Hung, Home and Away and the documentary about Aramoana.
Are they right?
In short: I don’t really think so. I had a quick squizz through the last 100 BSA decisions, dating back to about the time of the Hung and Home and Away decisions late last year. What’s extraordinary is that no fewer than 43 of them raised good taste and decency issues. Maybe complainants are getting more conservative, or more bolshy. Maybe broadcasters are pushing the boundaries more. But this is a very high rate of complaining about taste and decency. Usually taste and decency complaints comprise less than 30% of complaints, not 43%.
The BSA upheld 9 of these complaints (including Hung, Home and Away and the Aramoana decisions). That’s an uphold rate of 21%. That’s high, but not unheard of. Around 2000 to 2003 the BSA was upholding around a quarter of good taste and decency complaints. In more recent years, though, that rate has dropped markedly, often dipping well below 10%. Still, in 2008 and 2010 it was 16%. Obviously, a lot depends on the sort of material referred to them by complainants.
Their upholds have covered things like a rape scene in a movie, a Close Up interview with a porn star showing clips from her movies, a pretty explicit sex scene in a movie broadcast at 8:30pm, and raunchy clips from Outrageous Fortune broadcast on TV3 news. I doubt these really show any change of direction by the BSA.
A couple of other upholds seem more marginal to me. I’ve already discussed the Aramoana decision. The High Court overturned the decision in Hung. I’m not really sure the BSA needed to uphold the complaint against Ski FM’s morning host for wondering:
Which would be worse, sucking diarrhoea through a straw from someone else’s butt, or sucking diarrhoea through a straw from your own butt?
On the other hand, it’s not a breach to ask:
Which is worse, drinking pigs’ urine, or your own urine?
Just so we’re clear about that.
But overall, there’s much more fodder here for those who think the BSA is too permissive: a scene from Babel where a Japanese girl exposed her genitals; a talent show spoof on What Now where a judge said to Cinderella: “Next time I’m holding one of my balls, you’re invited”; grainy photos of Shane Warne with naked women (breasts blurred) on TV3 news; characters in a movie having sex in front of a dead body; the main guy in Extreme Male Beauty exposing genetalia and talking about something that made his “winkle bleed”; oral sex on Sex and the City; a couple simulating sex in public…. none of these good taste and decency complaints were upheld. The BSA members are not a bunch of wowsers.
Some complainants are, though. For example, someone complained that a Masterchef segment on how to humanely boil lobsters breached good taste and decency.
And someone had the poor taste to complain about this fine story, where 3 News speculated about the titles of porn videos rented on the public dime by MP Shane Jones:
At the conclusion of the coverage, the presenter mentioned that people had been making humorous suggestions on the social website Twitter as to the possible titles of the pornographic films Mr Jones had watched. She said:
Among the suggestions: “Shane and the Party Whip”, “If It Pleases the Speaker”, “Bipartisan Bitches” and, dare we say it, “Withdraw and Apologise”.
Not upheld.
All in all, it’s pretty hard to conclude that the new BSA is much more conservative than the old crowd.
But much more striking than their high uphold rate in good taste and decency complaints is their extraordinarily low uphold rate for all other types of complaints. By my count, of those other 57 complaints that weren’t about good taste and decency, the BSA has upheld just six. They upheld just one accuracy complaint (though another was subsumed) and only one balance complaint (in a case I argued).
I haven’t looked at the content of those decisions, so I’m not saying they got them wrong. But on the face of it, these figures suggest that if there’s anything conservative about this BSA it’s their reluctance to hold broadcasters to account for alleged lapses that aren’t related to taste and decency…
Topics: General | Comments Off on Is the BSA becoming more conservative?
BadJournalism
May 2, 2011
Meant to write about this last week.
How is it that the Sunday Star-Times can believe that a rehashed UK book on criminal justice (Badlands, NZ: A land fit for criminals) is important enough to be front-page news, but that the claims it makes are not important enough to seek out some New Zealand experts to evaluate them?
Topics: Media ethics | Comments Off on BadJournalism
Why I bang on about protesters’ rights
May 1, 2011
Because I don’t want our country to be a place where this happens.
Three street theatre performers, including a professor of anthropology, were preparing to protest against the monarchy with a mock guillotine in Soho Square on Friday. Last Thursday, Police sent three police cars and two police vans to arrest them outside the professor’s house and charged them with conspiracy to cause public nuisance and breach of the peace.
(This seems to be an attempt to do an end-run around the House of Lords’ decision in Laporte, which required imminence before breach of the peace powers could be exercised.)
And two days before that Metropolitan police commander Christine Jones said republican placards seen in the vicinity of the royal wedding would be removed under the Public Order Act (POA):
Asked by journalist Martha Kearney whether police would use the POA to confiscate “down with the royal family” placards, Jones replied “There are 364 other days of the year when people can come to London and demonstrate and frankly it’s not appropriate on the day of the royal wedding for people to come to London with that intent.”
[Update: As Mr K points out in the comments section, more reports of unjustified arrests here and here.]
Topics: Protest speech | Comments Off on Why I bang on about protesters’ rights
Media suppressing judge’s name?!
April 28, 2011
An old mate of mine, former Fair Go editor Chris Mitson, wonders why the media aren’t naming the judge who gave Malcolm Chaston bail. After all, Chaston had 71 previous convictions and during his previous stretch in prison, a prison guard had warned of his ambitions to become a serial killer. Police reportedly opposed bail. Chaston went on to murder Vanessa Pickering. Why shouldn’t the media be asking the judge a few questions about why bail was granted, he asks.
There’s nothing to stop the media naming the judge. As far as I can tell, they don’t seem to have done so. I don’t know why not.
The reports do suggest that Chaston had been out of prison for a time before the alleged assault for which he was given bail. The judge is reported as saying: there was nothing in your recent history to suggest you would offend in that way. I’m not sure what this means. Offend in what way? Was the prison officer’s warning put before the judge? But the judge may have been saying, in effect, “he’s been out of jail for a while, and kept his nose clean, apart from this allegation; there’s nothing to justify keeping him locked up pending trial for this assault”.
Judges must grant bail in a case like this (I’m assuming the charge was common assault, with a maximum penalty of one year in jail) unless there’s “just cause for continued detention”. That might be because he’s likely to abscond, or to interfere with evidence or witnesses, or commit further offences. The judge can take into account his history of offending and the seriousness of the charge he’s facing, among other things. I don’t know all the circumstances here. There may be questions to ask about whether the judge exercised the discretion properly, or whether our bail laws strike the right balance. This seems a good case in which to debate those things. The media don’t seem to be doing so.
I wouldn’t recommend approaching the judge directly. He or she will simply refuse to comment. Questions could be put to the Chief District Court Judge, but his response would probably only be a general one. Still, the debate can still take place without them…
Topics: General | Comments Off on Media suppressing judge’s name?!
Book Review: Media Law in New Zealand
April 28, 2011
Media Law in New Zealand
John Burrows and Ursula Cheer
LexisNexis New Zealand, 6ed, 2010
Reading the latest edition of this terrific text, it’s hard not to be struck by the breathtaking rate of change of New Zealand’s media law. The five years since the last edition have seen the Fairfax contempt prosecution and a string of cases involving Vince Siemer testing the boundaries of the law of contempt; the tug of war between High Court judges over cameras in court; the Mafart and Prieur case and the rewriting of the rules on access to court records; the abolition of sedition laws; reform of the Press Council following a roots-and-branch review; new source protection provisions in the Evidence Act and their first outing in the Campbell “medal thieves” case; a plethora of significant Broadcasting Standards Authority decisions (and some on appeal); the anti-satire rules for Parliamentary coverage; the Danish cartoons imbroglio; several important decisions on the vexed question of defamation pleading; the battle between MediaWorks and Sky TV over copyright in rugby clips; and much more besides.
Media Law in New Zealand doesn’t just provide a comprehensive overview of the disparate laws (criminal, tortious, and administrative) that apply to journalists. It also gives sharp analysis of the content of the law. The authors predict that the Lange defamation defence of qualified privilege for political speech is likely to “grow into a full public interest defence”, and they approve of overseas developments protecting neutral reportage. They note the problems with the remedies in the Defamation Act. They suggest journalists’ source protection should be enforced more rigorously. They sensibly recommend that New Zealand dumps its blasphemy laws. Their discussion of the case law on the various suppression laws is particularly helpful, and exposes the worrying lack of clarity in the suppression laws in civil cases.
Of course, recent editions have had to grapple with two seismic changes: the internet and the New Zealand Bill of Rights Act. The internet is increasingly becoming the battlefield for media law developments, and that’s reflected in much of the new material: commentary on ISP liability, online copyright infringement, the courts’ jelly-nailing attempts to control suppressed information once it hits the web, the problem of the status of bloggers when they perform journalist-like functions, and possible liability under censorship laws for visiting websites containing objectionable material.
References to the Bill of Rights are sprinkled throughout the text, but the main discussion is in a short chapter at the end. Alas, this offers limited guidance on the vexed issues surrounding the interface between the right to freedom of expression and the common law, statutory interpretation, and the exercise of discretions, and in particular, the mechanics of the key Bill of Rights provision, s 5, which allows “demonstrably justified” restrictions. But it’s hard to fault the authors too much here. Practitioners and judges are just beginning to come to terms with these issues themselves, and too often they are fudged or overlooked altogether.
It might be said that in this edition, Media Law in New Zealand has something of the feel of a venerable mansion, periodically modernised by the addition of extra rooms and ensuites. It is still a delight to visit and explore. All of the amenities are sound. Much of the architecture is lovely. But some rooms feel slightly musty (I’m not sure that all of the examples of defamation – and even broadcasting – cases reflect the approach the courts and BSA would take today). There’s need for a wing dealing with advertising standards decisions (the “lack of space” excuse trotted out in the last three editions wears a bit thin when each successive edition finds another 200 pages for other developments!). And I hope that later editions will find sufficient material to incorporate the Bill of Rights more closely into the foundations rather than consign it to its own room.
But any criticism feels like blasphemy. This is far and away the best book on New Zealand’s media law, and in fact has been influential in its recognition and development as a branch of law. The nation’s media lawyers, judges, journalists and students owe deep gratitude to the authors (mostly Ursula Cheer this time round) for putting in the long hours to compile this tremendously useful resource.
Topics: General | Comments Off on Book Review: Media Law in New Zealand
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