Ruling makes flag burning legal, says expert

VALARIE MORSE: "Victory for  freedom of speech.''
VALARIE MORSE: "Victory for freedom of speech.''

A decision by the Supreme Court to quash a flag-burner's conviction means the New Zealand flag can now be burnt "any time, anywhere" without fear of arrest, a legal expert says.

Valerie Morse was convicted of offensive behaviour after setting the flag alight in an anti-war protest in Victoria University's law school grounds, opposite the Cenotaph, during the 2007 Anzac Day dawn service. Her conviction was upheld by the High Court and Court of Appeal.

But in a decision released yesterday, the Supreme Court said earlier rulings had mistaken the meaning of offensive behaviour in the Summary Offences Act.

Wellington District Court judge Oke Blaikie found offensive behaviour to mean behaviour capable of wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person. He considered a tendency to disrupt public order was not required.

But the Supreme Court thought otherwise, ruling unanimously that offensive behaviour must give rise to a "disturbance of public order". Because the district court proceeded on a wrong basis of law, the conviction was thrown out.

One military veteran labelled the decision ridiculous and deplorable, but Ms Morse hailed it as a victory for freedom of speech.

It is illegal under the Flags, Emblems and Names Protection Act of 1981 to destroy the flag with the intent of dishonouring it.

However, Auckland University law professor Bill Hodge said yesterday's decision appeared to set a new precedent, giving protesters more right to freedom of expression under the Bill of Rights.

"You can now burn the New Zealand flag any time, anywhere you like, because I can't think of a time any more sensitive with the right people in the right place than Anzac morning in our nation's capital while the morning ceremony is ongoing. Constables will now get an order that you can't arrest people simply for burning a flag.

"I had always thought constables could take action pre-emptively to prevent a breach of the peace, this seems to say you've got to wait till it happens and, to me, that's not terribly efficient."

Returned and Services Association Upper Hutt president Syd Giles said the court's decision to overturn Ms Morse's conviction was ridiculous. "I've got one word for what she did – deplorable.

"You can be loyal to your country without agreeing with everything that goes on. To burn the flag is an absolute slight. That's the flag I served under, I think it's disgusting."

Ms Morse said she was pleased to get the conviction thrown out after an "exhausting" four-year legal process.

"I want to make it very clear that our protest was not aimed at returned servicemen. Our protest was about the war in Afghanistan, New Zealand's longest war. This is a victory for everyone that believes in the right of freedom of speech."

She was unsure whether she would burn the flag again. "We didn't choose to do that lightly, and we wouldn't choose to do it again unless we felt it was an appropriate and reasonable thing to do in the circumstances."

Yesterday's decision includes details from witnesses, with one calling the burning "disturbing and really offensive".

Another was shocked and outraged that someone would burn the national flag at such a solemn event, describing the flag as "something that was dear to the hearts of people there that day," the decision said.

One member of the crowd reportedly punched a protester after the burning and a police officer said several dozen people who were near the protesters became agitated.

THE LAW IN OTHER COUNTRIES

Finland: It is illegal to desecrate the flag, treat it in a disrespecting manner or remove it from a public place without permission.

France: A 2010 amendment makes it a crime to desecrate the French flag in a public place, or to distribute images of a flag desecration, even when done in a private setting.

Germany: It is illegal to revile or damage the German federal flag as well as any flags of its states in public. Offenders can be fined or sentenced to a maximum of three years in prison.

Philippines: It is a prohibited act to "mutilate, deface, defile, trample on or cast contempt or commit any act or omission casting dishonour or ridicule upon the flag or over its surface".

United States: The Supreme Court ruled that, under the First Amendment, protecting freedom of speech, it is unconstitutional for a government to prohibit the desecration of a flag.

The Dominion Post