Kiwi tolerance – the bare facts
Bare-faced cheek or the naked truth? Simon Day investigates those who choose to go nude.
ONE MAN’S right to go running naked reflects a more tolerant and liberal New Zealand and a legal system evolving with society, according to a public law expert.
When Andrew Lyall Pointon, 47, was spotted by a woman jogging in nothing but his sneakers, in forest near Tauranga in August last year, she complained to police.
Three days later Pointon, ‘‘ a committed naturist’’, was arrested and charged with offensive behaviour.
Found guilty in the District Court, he had an appeal thrown out in June but last week, a second appeal was upheld in the High Court at Tauranga.
This decision represents the judiciary’s evolving concept of what is ‘‘offensive’’ and illustrates an increasingly tolerant New Zealand, said Andrew Geddis, professor of law at the University of Otago.
‘‘ The underlying changes in social belief in New Zealand have driven this change in the courts,’’ said Geddis, who recently researched freedom of expression issues on a Fulbright grant to the US.
‘‘That is what posed to do.’’
The purpose of the charge of ‘‘offensive’’ or ‘‘disorderly behaviour’’ is to protect the social ideas of how people should behave in public, with criminal sanctions.
In 1962, at its broadest interpretation, this meant any activity ‘‘which contravenes good conduct or proper behaviour’’, in the eyes of the ‘‘right thinking members of the public’’.
Anti-war protesters who embarrassed MPs during a US vicepresidential visit; a protester who swore during a speech; and, burning the UK flag in support for republicanism, were all acts sufficiently ‘‘ offensive’’ or ‘‘ disorderly’’ to justify convictions.
‘‘You had the freedom to express yourself and the freedom to do things but as soon as you started to upset people enough the law said
the
law
is
sup- you had to stop,’’ Geddis said.
But since its establishment in 2005 the Supreme Court stopped measuring ‘‘offence’’ against the norms of civil society and instead encouraged greater tolerance of alternative views and actions by the New Zealand public.
The law creates a hypothetical New Zealander who observes the behaviour and that person has the qualities of tolerance and preparedness to accept difference.
If the action would cause that hypothetical person to respond in a violent way or interfere with their use of a public area, then that is sufficiently offensive to warrant a criminal response.
The test is designed to balance freedom of expression against social norm of civility in public.
The judge in Pointon’s case compared his nude jogging to the woman seeing patched gang members in the park. It was likely to cause discomfort but not sufficient to cause ‘‘offence’’.
So while his behaviour could be considered ‘‘unwelcome’’, it was not sufficiently offensive to require the intervention of the criminal law. It would be the same if someone burned the national flag.
At a time when a bill to legalise same-sex marriage is before Parliament and Pointon can walk the Tongariro Crossing naked (admittedly during low season when no children are around), he believes Kiwis are becoming more receptive to alternative views.
‘‘It is just the freedom of not wearing clothes and there are so many freedoms of lifestyle that we must respect,’’ Pointon said.
It is important to have a legal system that is reflective of broader society, Geddis said.
‘‘ Otherwise we end up being governed on what we can and can’t do based on what a judge said back in the 1960s.’’
Colin Craig, leader of the Conservative Party, believes the judge went too far.
‘‘The vast majority of New Zealanders would see public nudity as offensive,’’ Craig said, adding freedom of expression must be balanced against others’ right to enjoy public spaces.
‘‘He’s getting too excited his freedom of expression.’’ Scan this logo to send an email for publication on our letters page.
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