Why Flag Burning Does Not Qualify as Offensive Behaviour under the Summary Offences Act

Abstract

Why flag burning does not qualify as offensive behaviour under the Summary Offences Act 1981 (SOA)1will be the overall focus of this paper. This issue will be grappled with mainly through the case of The Queen v. Valerie Morse.2 I will start the paper by first considering the right to freedom of expression, then I will move on to give some background information including an overview of other consequential case and a detailed review of the Morse case. Following the Morse case information I will consider the criminalization of flag burning in New Zealand. Then I will move on to explore two questions; first- what does the term offensive mean, and was the burning of a flag offensive? Second- is the limitation imposed by charging Ms. Morse with a crime for burning a flag a limitation that is “demonstrably justified in a free and democratic society”? In this section I will propose my own definition of offensive. And finally I will consider the New Zealand Courts’ use of American jurisprudence on the topic. There is a wealth of information and cases from all over the world dealing with freedom of expression and specifically protest, in this paper I will try and keep a clear focus on the Morse case and tie everything in with New Zealand law.