An Examination of the Architecture of Freedom of Expression under the Bill of Rights: Substantive and Methodological Divergence on the "Right to Protest" in Brooker and Morse

Abstract

The New Zealand Supreme Court (in the twin “right to protest” cases of Brooker v Police and Morse v Police) has narrowed the open-textured ambit of s 4(1)(a) of the Summary Offences Act 1981 by introducing a greater measure of objectivity into the provision. Moreover, it has invoked a much more significant role for s 6 of the Bill of Rights in terms of ensuring rights-consistency in application. This is analogous the US “as applied” invalidity approach. I argue that this approach to s 6 of the Bill of Rights is a major coup both for the right to freedom of expression and the other rights in the register. However, by adopting Brooker and Morse as a springboard, it is argued that underneath the veneer of apparent unanimity in outcome lie important disagreements among the Supreme Court in terms of the appropriate “balancing” methodology that should be adopted in cases where rights-mandated interpretation (and application) is implicated. To this end, the paper’s thesis was that the Court should promote a process of “structured reasoning” under ss 5 and 6 of the New Zealand Bill of Right Act 1990 and not an “impressionistic process” whereby a handful of factors are “balanced” in an ill-defined test. I promote the Oakes “proportionality calculus” favoured in Hansen as the solution to this dilemma. This paper argues that the discrete methodological approaches adopted across the judgments in Brooker and Morse are apt to reduce the decision’s utility as a precedent and are likely to give rise to ambiguity in terms of practical application by lower courts. Specifically, consideration is given to the character of the Court’s re-formulated “balancing exercise” that is mandated in “offensive” and “disorderly” behaviour cases under s 4(1)(a) of the Summary Offences Act 1981. This paper concludes with the observation that while the Bill of Rights’ influence is discernible, it has principally been used by the Court in Brooker and Morse as a “buttress” that is grafted on to the pre-existing framework rather than as the focal point of a structured, rights-based methodology. This risks reducing the effectiveness of the expanded approach to rights-consistent interpretation and application under s 6. Moreover, it is submitted that, ultimately, it risks subordinating freedom of expression in favour of the nebulous, open-textured “public order” offences contained in s 4(1)(a) of the Summary Offences Act 1981.