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August 9, 2010 | by  | in Features |
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Freedom of Expression: A Right in the Right Time and Place?

Salient writer David Smith looks into Russel Norman’s protest on parliament’s forecourt in front of the visiting Chinese Vice-President, and the questions it raised surrounding New Zealanders’ right to freedom of expression.


“The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” John Stuart Mill, On Liberty, 1859

On 18 June, Green Co-Leader Russel Norman waved a Tibetan flag in view of the visiting Chinese Vice-President Xi Jinping as he entered through the parliamentary forecourt. Norman claims that the flag was pulled from his hands by Chinese security, forcing him to move closer to Jinping in an attempt to retrieve it. The subsequent events—the alleged security threat to the Vice-President and the rough handling of Norman by Chinese security—unloaded a cannonade of opinion. The Vice-President avoided the eye of the storm—opting to bunker down at his hotel rather than brave his scheduled engagement at Victoria University.

The media fracas raised an important issue: Where do the boundaries of freedom of expression lie and what role does it play in New Zealand society?

A number of commentators expressed outrage at Norman’s actions, saying they were irresponsible and jeopardised New Zealand’s relations with China. Paul Henry described it as “economic espionage”.

Other commentators vigorously defended his right to freedom of expression.

Norman himself calls it “a mixed bag”.

“I mean some of the media did quite strongly defend freedom of expression. Whether they defined it particularly well or not, they certainly did try to defend it.

“A number of them didn’t defend it because they said, well, you’ve got freedom of expression but you can’t use it in a particular way that is offensive. Which is of course the government’s line. And so of course that means you don’t have freedom of expression if you are not allowed to say things that are offensive.”

Dean Knight is a Senior Lecturer at Victoria University’s Faculty of Law, and Associate Director of the New Zealand Centre for Public Law. An expert in constitutional issues, he agrees that the right to expression includes the ability to offend.

“Our courts have said that just annoyance isn’t enough… You can’t be too quick to dismiss protesters because they make you feel uncomfortable.

“The Chinese Government doesn’t get the right to choose how they are going to get protested against. The whole point about freedom of expression and protest is that it is, by and large, meant to cause annoyance and make people feel uncomfortable, because that stirs up ideas.”

However, Steven Young, President of the New Zealand Chinese Association, says that “people’s actions can be circumscribed by considerations other than constitutional or legal rights, such as dignity, respect, harmony, the common good—[ideas] which are, I suppose, Confucian.

“How would the public feel about an immigrant or Maori charging at the Duke of Edinburgh on the steps of parliament?”

For Norman, the protest was about representing the views of his supporters.

“I think that the key thing is that we are here to represent the people of New Zealand and those who elected us. That is our primary responsibility—not to the executive or the cabinet, nor is it to the Chinese Government. So the people that voted for the Greens feel very strongly about human rights,” he says.

“I think the New Zealand Chinese Association might want to decide whether it supports the Chinese Communist Party or whether it supports free speech.”

Context is everything
The right to expression is a broad one. Under section 14 of the Bill of Rights Act 1990, it entails the freedom to seek, receive and impart information and opinions of any kind in any form. However, the right is not unrestricted. The Bill of Rights only applies to bodies exercising public powers or functions. Furthermore, under section 5, rights and freedoms within the act may be subject to reasonable limits that can be demonstrably justified in a free and democratic society.

Knight says context is everything.

“I mean, freedom of expression is important—we need to be incredibly vigilant about protecting people’s rights to do it. But that’s not to say we can’t place legitimate restrictions and limits on rights for proper purposes. The big argument is whether the instances you talk about are being done for proper purposes, or just to avoid upsetting one of our major trading partners. The cynics will say that there are bad motives… I think the point is that we need to scrutinise those limits carefully to make sure they are being done for proper purposes.”

One element of Norman’s protest that drew criticism was its location on the parliamentary forecourt. The general public are excluded from protesting in the area, and Norman’s ability to get up close to the Vice-President was denounced as an abuse of his privileges as an MP. However, the issue also brought to light whether the restrictions on the area are justified.

Speaker of the House Lockwood Smith acts as parliament’s landlord and thinks that the restrictions on protest around the parliamentary forecourt are legitimate. He points to guidelines issued in 1999 to comply with the Bill of Rights, which he says “are fair and do not interfere with individual rights to demonstrate within the grounds of parliament”.

According to Smith, these“include a requirement for members of the public to seek authorisation to stage a demonstration and restrict certain activities… Members of the public staging a peaceful demonstration are also required to keep clear of the parliamentary forecourt”.

Smith says that these guidelines were also intended to apply to MPs, and he has reiterated his preference for MPs to check with his office before any demonstrations.
While Knight concedes that restrictions around the forecourt that protect foreign dignitaries are “a legitimate thing we can regulate”, he also suggests that MPs might have greater rights of access than the general public.

“MPs, through their tradition, their role as community representatives, you might more strongly protect their right to protest around parliament because it’s more closely politically aligned to what they do in parliament—it’s their job, it’s their space. Whereas a general person going along there, you might put the barriers back further. I think it’s grappling with where to draw those distinctions and those lines, which is quite hard.”

Rights or Dollars?
The Norman incident comes swiftly behind a series of instances where New Zealand officials appear to have bowed to Chinese interests.

In 1999, police parked a bus in front of protesters at the APEC conference so that the Chinese President would be free from interference, infringing the protesters’ right to expression. Senior ministers were implicated as directly authorising the action.

More recently, both Auckland and Wellington City Councils have attempted to ban Falun Gong from their Christmas parades, with barely concealed imputations that it harms their relationship with China. Wellington City Council backed down in 2007 after it was threatened with judicial review. As a private trust, the Auckland parade faces no such challenge.

In another incident in 2007, accredited press journalist Nick Wang was removed from an advertised photo opportunity with Vice-Premier Zeng Paeiyan at the request of Chinese officials.

The question is whether these incidents involve reasonable limitations that can be demonstrably justified in a free and democratic society. In short—whether they serve proper purposes. Norman considers that we should be concerned.

“There hasn’t been the very deep kind of discussion about human rights, democracy, freedom of speech and some of the other values that are quite important—I would say fundamental. So a lot of people involved in government subscribe to the idea that money should come first, so they are happy to suppress basic human rights like freedom of speech if they think there is a buck in it.”

Whether Norman is right, many New Zealanders are concerned about the economy. But Norman disagrees that Realpolitik entails sacrificing our rights to address this.

“You can have a commitment to values and be a realist—it’s just that Labour and National, you know, they just give up.”


Schizophrenic nation?

When it comes to rights, New Zealanders seem unsure what to think. Knight calls the inconsistent approach to freedom of expression among the public and the media “schizophrenic”.

“Sometimes we get awfully heated up when someone’s rights are limited, but other times… it doesn’t upset us when gang-members in Whanganui are made to strip away their labels. We are utterly schizophrenic.

“We do actually have a tradition of being outspoken [internationally], and try to put, and press unpopular views. But I’m not sure in our backyard we are always as careful about some of those other types of rights as well.”

For many New Zealanders it is difficult to draw the distinction between the right to expression, and the actual debate at issue.

“Protest is hard because it upsets people. It’s hard for people not to judge the thing that people are protesting about, and you can look at that with the Israeli stuff, the anti-abortion stuff, the hate speech stuff from Destiny… But you know, you’ve got to judge the right to protest, knowing that it’s going to produce views that you don’t like. It’s why we protect it.”

Undeniably, our tendency to conflate the right and the issue is exacerbated by a lack of education about freedom of expression. Few people apart from lawyers and academics study the issue in depth.

“There is a lack of understanding… There was a tipping point with the electoral finance reforms that basically beat out the idea that you had an absolute right to express yourself. And it’s a non-sense. People don’t understand that we need to adopt a nuanced approach to working out what’s protected and what’s not in our society.”

While Knight says that he is not a “chest-beater” about rights, there are instances that concern him.

“The problem is that there are powers that we should worry about—the power to arrest for disorderly behaviour, which doesn’t set out a clear standard; the power of private landowners to kick someone off their property. Someone got removed from… I think it was a Westfield Mall—for blowing a raspberry at John Key when he was there. And with impunity because it is a private land area. I mean those are the things that I worry about.”

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  1. richardmaclean says:

    Just a note of clarification – your writer has got it wrong in terms of his comments about Wellington City Council. Falun Gong have never been banned from Wellington’s Christmas Parade. There is, however, a rule that the parade is not a place for political or controversial floats. It is, after all, a parade mainly for kids. Falun Gong were allowed into the parade in 2007 after they gave an undertaking that they would be there for entertainment value only – and that no ‘political’ gestures would be made.
    cheers
    Richard MacLean – Wellington City Council.

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