In a split-decision handed down this month, the Supreme Court upheld the right to peaceful protests while disavowing the use of criminal statutes to prosecute those exercising freedom of expression. Chief Justice Elias was joined by Justices Blanchard and Tipping in the matter of Brooker v Police SC 40/2005 in holding that the New Zealand Bill of Rights Act 1990 that guaranteed freedom of expression “to seek, receive, and impart information and opinions of any kind in any form” superseded privacy concerns where there clearly was no harassment and annoyance to the public.
In a democratic ruling, each Justice provided extensive legal rationale for the way they ruled. Chief Justice Elias offered the most analytical and cogent legal reasoning, laying out a legal roadmap on what may and may not warrant criminal charges of disorderly conduct. The Chief Justice denounced the lower Court’s reliance on disorderly conduct being the antonym for “orderly”, thereby extending to anything that was not orderly; definitions that included not “well-behaved”. This semantic escapade gravitated to a ‘ peaceful protest’ amounting to an attack on the subject’s “dignity” when it assisted the police prosecution of the appellant (who was convicted for protesting in front of a police constable’s house). The Chief Justice was almost scathing in criticism of Appeal Court Justice Young and High Court Justice John Hansen for not focusing on fundamental questions such as whether Mr. Brooker’s behavior was “disruptive of public order?” During the substantive proceedings there was no evidence that any member of the public was even irritated by the protest other than the police constable who was the subject of the protest. Justices Young and Hansen’s approach had been to focus on the constable’s loss of privacy because her house happened to be close to the road, as well as the fact that Mr. Brooker knocked on her door before putting up his placard.
Justice Blanchard seconded the Chief Justice and, in obvious answer to the dissenters, said “The exercise of the s14 right (freedom of expression) in the form of a protest is not confined to non-residential streets.” Justice Tipping was the most understated in his treatment of the lower court rulings, saying “Bearing in mind the significance of the right to freedom of expression and all other issues, I do not consider that it was possible for the trail judge to be satisfied beyond reasonable doubt that Mr. Brooker’s behavior disturbed public order to the necessary extent.”
Justices McGrath and Thomas dissented, with McGrath claiming that issues of “public order” and “privacy” overrode citizens’ statutory rights to freedom of expression. Justice Thomas, on the other hand, launched into a diatribe of 48 pages (almost half of the entire judgment) criticizing everything from the tone and time of the protest (9:30 am) to the fact that it was on a residential street – even arguing that the lower court judges whose decision was on appeal should be allowed to weigh-in given the closeness of the decision.
Contrary to his visceral opinion that sought to curtail civl liberties, Justice Ted Thomas was long considered a more moderate to liberal member of the Court, harking back to the days of Lord Cooke. But with this he has likely delivered his last judgment. Thomas has not heard a case recently and will be forced into mandatory retirement at the end of the year.
The core issue in this Supreme Court appeal involved a protest by Alistair Patrick Brooker in front of Police Constable Fiona Croft’s house, both of Greymouth. Mr. Brooker believed Constable Croft had acted in an unlawful and harassing manner toward him. She had obtained a search warrant which the police then attempted to execute at Mr. Brooker’s house late on a Saturday night. The warrant sought forensic examination of a car that was not on the property. Since the search was ostensibly for the purposes of a court hearing that Monday, and no forensic tests could be run that quickly, Mr. Brooker alleged that the search warrant was an abuse of police power used to harass and intimidate him. His protest involved subsequently knocking on Constable Croft’s door at 9:20 am and proceeding to sing and play a protest song on his guitar on the street in front of the house. The constable said this invaded her privacy because she was sleeping (she worked the night shift). Mr. Brooker also placed a sign on the street that read “No More Bogus Warrants”. While it was alleged he sang at a pitch louder than a talking voice, he used no amplifier for his voice or instrument. The police were called by the constable and responded within 15 minutes. On orders of the police, Mr. Brooker moved his car that was parked on the grass along the roadway but, when he returned moments later to continue his protest, he was arrested.
This case was heard by the Supreme Court on 7 December 2005, yet the decision only came down on 7 May 2007.
There has been considerable focus on the New Zealand Court system since the Privy Council was abolished in 2005. Brooker v Police was viewed as a watershed test case of democratic principles for New Zealand and is being analysed by democracies around the world. There has been much recent criticism directed at the parochial aspects that have governed the lower courts for too long. The loss of the Privy Council, where as many as 60% of the New Zealand judgments had been overturned, was considered a loss that imperiled New Zealand’s place as a law abiding society in the free world. With this judgment, the Supreme Court has advanced its legal framework toward a mature place among the established democracies. Judge Elias perhaps said it best, “Imprecision in the criminal law which leaves it to judges to identify what is deserving of penalty is inconsistent with the rule of law for reasons also identified by the Permanent Court of International Justice in the Danzig Legislative Decrees Case.”