The judge basically said that there were two different ways to interpret the flag law – one broader and one narrower – hinging on the word “dishonouring”. The High Court judge interpreted New Zealand’s flag law in a flexible way so as to give effect to the right of freedom of expression in the Bill of Rights. H was convicted in the District Court and fined $600 (as well as court costs of $130), but he appealed to the High Court, which allowed his appeal and overturned his conviction. The particular offence was that he had destroyed the flag with the intention of “dishonouring” it. H was charged under the specific laws that protect the New Zealand flag, rather than with disorderly or offensive behaviour under the general criminal law (see the second example below). In March 2003 the defendant H had burned the New Zealand flag in a protest outside Parliament against the war against Iraq. Protest against the Iraq War outside Parliament in 2003Ĭase: Hopkinson v Police 3 NZLR 704 In both cases the judges interpreted the law in a narrow way to the activist’s advantage, so that the end result was that the activist wasn’t convicted. In the last 20 years there have been two prominent court cases about flag burning, involving activists being charged under two different laws. For your behaviour to have affected “public order” it seems that it would have had to prevent other people using the public space for their purposes. To get a conviction against you, the police would also have to show that your burning of the flag was so offensive that it affected “public order”. However, it won’t be enough that the behaviour was “offensive” in the usual sense, of producing anger, resentment, disgust or outrage in others. This law says it’s an offence to behave in an offensive manner either in a public place or where you can be seen from a public place. The other offence that flag-burners have been charged with is the more general offence of “offensive behaviour”. Summary Offences Act 1981, s 4(1)(a) Case: Morse v Police NZSC 45 You would need to do something else as well – perhaps stomping or spitting or urinating on the flag’s ashes. However, this is a high standard, and simply burning a flag does not reach this level. This says it’s a criminal offence to destroy or damage the New Zealand flag in any way, if you do this with the intention of “dishonouring” the flag. One of these is a law that is specifically about protecting the flag.
They are both minor offences only, and the penalty for each one is only a fine.įlags, Emblems, and Names Protection Act 1981, ss 11, 24 Case: Hopkinson v Police 3 NZLR 704
When activists in Aotearoa have burned the New Zealand flag, the police have tried to get convictions using two different laws.