LAWS101A FoE Case Study, Limits, & Two Court Cases

Define the freedom of expression according to NZBORA

The right to ‘…seek, receive, and impart information and opinions of any kind in any form

Describe the importance of FoE

A very important right- sometimes seen as the first human right

What are the 2 reasons why FoE and other rights are protected

The marketplace of ideas & contribution to constitutional democracy

What is the marketplace of ideas and its limits

Humanity does not know what is true, right, or good, so we can only hope that when ideas collide, the truth will prevail/have popular support because truth is powerful. Instead of regulating and restricting ideas, we should let the marketplace dictate what is right. Limits- proposal that the loudest voice is true is controversial

What can Contribution to Constitutional democracy be split into

Political contest, individual self-fulfillment, safety valve

Describe political contest in contribution to constitutional democracy

Basically an acute marketplace of ideas targeting the government. To support the political process undercutting democracy we need to express our views on politics and government to have views contested, debated, etc so we have a more informed voting population

Describe individual self-fulfillment in contribution to constitutional democracy

Freedom and human dignity- We should be able to express ourselves and govern ourselves, making up a richer democratic society

Describe the safety valve in contribution to constitutional democracy

A safety valve to preventing injustices by allowing press and media to investigate and publish findings of corruption, unjust practice or misinformation. Once published, these things can be identified and corrected

What are the three types of limits of FoE/human rights

Legal, social, and government imposed limits

What are legal limits

Protection of conflicting interests through legislation. Example- Law of defamation protecting the interest of personal reputation is a reasonable limit

What are social limits

Limits that reflect social standards and conventions. Example- someone expressing offensive or bigoted will face public criticism or be subject to being ostracised. Unless subject to violence, these are reasonable limits

What are government limits?

Restricting Parliamentary sovereignty by adding burdens when parliament breaches rights, by forcing government to explicitly demonstrate the breach is reasonable and justified in our nations commitment to democracy. Example- NZBORA limits Parliamentary sovereignty through section 5

Outline Simpson v Attorney General [Baigent’s Case] 1994

Facts: police turned up to Baigents house with for a warranted search and seizure but Baigents house was the wrong house. Police proceeded to search, Baigent claimed a breach of NZBORA under free from reasonable search and seizure. Baigent brought the case to High Court

Outcome: Baigent won & was awarded damages instead of exclusion of evidence

What can we learn from Simpson v Attorney General [Baigent’s Case] 1994

Was the first case to issue damages remedy under NZBORA breach which did not have a remedies provision. The case being public law made the state liable instead of the police department.

Learn that a breach does not immediately come with a remedy but instead Courts prioritise rights to creatively find a remedy for specific cases

Outline Morse v Police 2012

Facts: A woman conducted flag-burning as a protest against war at an ANZAC Day Dawn Parade. Morse was charged with behaving in an offensive manner.

Outcome: Morse’s original conviction was overturned by the Supreme Court

What can we learn from Morse v Police?

No matter if the behaviour was indecent and violent or not, as long as it concerned public order and was productive of disorder. Morse’s actions did not suffice as any reasonable person conscious of section 5 of NZBORA would tolerate the flag burning as FoE. It only provoked emotional discomfort, therefore not making it offensive behaviour.

Outline Pointon v Police 2012

Facts: Pointon- a self-appointed naturalist- ran through the woods when a woman walking her dog spotted him and complained which led to arrest and charges to Pointon

Outcome: Ruled in favour of Pointon

What can we learn from Pointon v Police 2012

Defence: Public nudity is expression, Pointon did not disturb public order, and the complainant being annoyed is not enough

Prosecution: Interference of enjoyment of public space as more could be offended + there is no expression as there was no audience

Ratio: Courts said expression is expression as long as it is not violent but can be unwelcome and provocative. Canadian case of strip dancing showed FoE encompassed many things. if FoE was all comfortable what’s the point? Pointons actions were unwelcoming, provocative and offensive but expressive in content, did not disrupt public order and needed protection

Outline Attorney General v Phillip John Smith 2018

Facts: Smith wanted to wear a wig in prison which was denied. He took to the High Court where he won under FoE but subsequently was appealed by the Attorney General

Outcome: The wig was not expression under FoE

What can we learn from Attorney General v Phillip John Smith 2018

Appellants: The wig does not communicate ideas of content, only makes Smith feel better about his head, he was only annoyed which is not enough

Respondents; Wearing a wig was expression as it communicated self-esteem and confidence as a response to the views of others, while expressing physical form and personality

Ratio: FoE is broad so anything can count as expression but that doesn’t follow that everything does. Non-verbal expression counts but hair only expresses required protection. If Pointon had worn clothes it would be the same in this case. Expression needs a conveyed meaning to have protection, not everything you want to do