Interesting commentary here from Stephen Franks on the Supreme Court’s decision to acquit Victoria Morse for flag-burning and tooting to drown out an ANZAC dawn service in 2007.
Basically, not only is flag burning now perfectly allowable (something I have no real problem with, as long as the burner owns the flag and they aren’t endangering anyone else’s property), but it’s now ok to exercise your free speech by drowning out someone elses…..UNLESS the people you are drowning out get so riled they lose control and have a go at you. Only then do you definitely have disorderly conduct, as opposed to just possibly.
Actually, that’s a little harsh on the decision, but it does mean that any constable trying to work out whether disorderly conduct applies is faced with a decision of no practical help in a tense and potentially violent situation.
It puts the police in the impossible situation of being unable to do anything preventive without arguably having to get a legal opinion. Police superiors are not going to be thanking their constables for subjecting the police to legal review after legal review of their decision….so why would you, as a young constable keen to do well, bother? As constitutional law expert Bill Hodge says:
“I had always thought constables could take action pre-emptively to prevent a breach of the peace, this seems to say you’ve got to wait till it happens and, to me, that’s not terribly efficient”
Stephen Franks view is that:
…they’ve [the Supreme Court] not acheived the simple purpose of a final appeal court – to clarify the law and to draw together threads of reasoning to make it predictable, to guide lawyers and the conduct of ordinary non-lawyers in the future.
They’ve left instead a morass of big words and significant looking contrasts of possible meanings and concepts, without finding guiding principles. Try reading it. They fail a simple test. Could a constable draw from their wordy pages a conduct-guiding logic to tell when they can, or cannot, arrest a person setting out to cause offense to their fellow citizens? I can’t.
The upshot of the decision might be that the people whose rights are being infringed must themselves engage in illegal conduct or the disorderly party isn’t being disorderly. At which point everyone concerned is liable to arrest rather than having it nipped in the bud.
One might have hoped for something a bit more….useful.