It's okay to burn the NZ flag
24 July 2004
A judge has upheld the right of a protester to burn a New Zealand flag as freedom of expression.
In a landmark case decided in the High Court at Wellington yesterday, Justice France has overturned Paul Hopkinson's conviction for dishonouring the flag during a protest at Parliament on March 10 last year.
The judge said that in the context of freedom of expression the term dishonour had to be given the meaning of "vilify". A symbolic burning of the flag was not enough, but Justice France would not speculate on what extra action might come within that meaning.
Hopkinson, a Porirua school teacher, was entitled to express himself and burning the flag in the circumstances he did, did not justify limiting his rights, she said.
The flag was important but even in the United States where it was a dominant symbol, a majority of Supreme Court judges had ruled the criminal law should not be used to protect it.
"The matter also needs to be considered against my perception that New Zealand has reached a level of maturity in which staunch criticism is regarded as acceptable," she said.
"There may well be strong reactions to such criticism but there is an acceptance of the ability to make it."
Justice France allowed Hopkinson's appeal against his conviction in Wellington District Court for destroying the flag with the intent of dishonouring it.
He had been fined $600 with $130 court costs.
Hopkinson was one of the organisers of a protest against the Iraqi war when Australian Prime Minister John Howard visited New Zealand.
During the protest, the New Zealand and Australian flags were doused in kerosene, held aloft and set alight.
It was the first time the charge, under The Flags, Emblems and Names Protection Act 1981, had been used.
Freedom of expression was a right under the Bill of Rights Act. The right did not over-ride other laws, but it should be limited only by legal limits "demonstrably justified in a free and democratic society", the judge said.
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