![]() – they apparently regarded the proportionality analysis as an ad-hoc balance between the rights of the appellant and the rights of the others in attendance, rather than a structured process of justification that revolves around evaluating the legitimacy, relevance and strength of the state interests in the restriction.Īlso, as Justice Arnold notes at para, we supplied three alternative approaches to interpreting the offense of offensive behaviour, all of which we said were consistent with the Bill of Rights, and none of which were adopted by the District and High Court judges.įinally (and I’m taking this from the notes I wrote during the break in order to respond to William Young P’s question), we emphasised that the fundamental failure of the judges was in adopting the wrong approach to the question of justifying restrictions on free speech. – they did not consider the relevance of the offence of flag-burning under the Flags, Emblems, and Names Protection Act 1981 – they did not properly apply the Brooker test, which significantly lifted the bar in cases of protest nor did they create and apply an analogously high bar for offensive behaviour – they appeared to treat the symbolic nature of the act of flag-burning as an aggravating rather that mitigating factor – they did not consider whether the appellant’s conviction was “demonstrably justified” in a free and democratic society – they did not identify any legitimate purposes for the restriction on the appellant’s right to burn the NZ flag, the starting point for any proportionality analysis – they did not properly assess the significance of freedom of expression in the circumstances of this case ![]() – they did not acknowledge that limitations on BORA rights should be construed narrowly, convincingly established, and strictly applied in favour of the rights at issue – they did not acknowledge that the right to offend, shock or disturb is an indispensable aspect of freedom of expression, and particularly political expression – they did not adopt a rights-centred approach The courts below failed to properly conduct an analysis of the impact of ss14 and 5 of the BORA in that: Second, here our our written submissions on the errors of law in the courts below: It characterised this as a question of law. First, the Court of Appeal itself gave leave on the of whether the conviction was consistent with the Bill of Rights Act. But such a challenge, at least in simple terms, is off-limits in this Court in a second appeal… This rather makes me think that the fundamental challenge to the conviction turns on the factual accuracy of the findings made in the District Court and the High Court. His answers were variations on the theme that the outcome was simply wrong. In the course of argument, I pressed Mr Price for the appellant to identify an error of law made in the Courts below. You’ll see that at para, William Young P says: But I do want to make one point, despite knowing that it’s a bit naff arguing the toss with a judge after a judgment. I won’t go into a detailed analysis of the judgments. The Supreme Court may yet grant leave for an appeal. Still, perhaps the final chapter has not yet been written. (I think her dissent is very convincing, but I would say that: Tony Shaw and I represented Valerie.) Justice Arnold and the President of the Court of Appeal, William Young, voted to uphold the conviction. (For some reason, this wasn’t regarded as a “decision of public interest”, but it’s posted here). Valerie Morse has lost her appeal to the Court of Appeal over her conviction for flag-burning at the Anzac Day Dawn Service. ![]() Budget leak: Nats’ behaviour “entirely appropriate”?.When free speech creates disorder or hate.NZME admits it misled listeners by buying into Trump’s ridiculous election fraud claims – but BSA somehow finds broadcasting standards not breached.
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