By their acts ye shall know them

Wearing a wig is not a form of expression. Depending, that is, upon the sort of wig it is. And why the person is wearing it. Maybe. Hope that clears things up for you.

The Court of Appeal handed down its decision yesterday on whether, under the NZ Bill of Rights Act 1990, Phillip Smith has an expressive right to wear a wig. It found that he doesn't - an answer which I don't necessarily think is wrong, but raises as many questions as it resolves.

I posted on the earlier High Court decision in the case here, so to summarise ... you may remember Smith from such episodes as his having molested a young boy and four years later returning to murder that boy's father. Then, in 2014, Smith abused his temporary prison release privileges to escape to Brazil, thereby making it considerably harder for other prisoners to transition back into society when authorities cracked down on the scheme.

Smith also has been going bald since the early 2000s. He didn't like this fact - it knocked his self-esteem and confidence. So, he got permission while in prison to wear a wig. But upon getting caught in Brazil and returned to prison here, that permission was revoked on (somewhat spurious, as we'll see) "security grounds".

Smith then challenged the revocation on the basis that the prison authorities had failed to consider his right to self-expression before deciding what to do to him. And he won in the High Court.

Justice Wylie accepted that Smith's wearing a wig constituted a form of expression (although also noting that the matter lay right at the margins), which prison authorities therefore had to take into account under s.14 of the NZ Bill of Rights Act. As there was no evidence that they had done so before denying him the wig, their decision was unlawful. And so the authorities were told to reconsider the matter, this time having regard to Smith's expressive rights.

Subsequently, two things happened. First, the Crown decided to appeal the High Court decision on the basis that Wylie J was wrong to find that Smith's wearing of a wig constituted a form of "expression" in terms of the NZ Bill of Rights Act. More on that in a moment.

Because, second, the prison authorities also decided Smith could keep his wig whether or not the Court of Appeal decided Wylie J's decision was wrong. In other words, when they reconsidered the matter, they realised that actually they shouldn't have taken Smith's wig from him irrespective of whether he has any specially protected expressive right to wear it. As the Crown told the Court of Appeal:

The [prison authorities have] remade the challenged decision and [Smith] is, again, authorised to wear his hairpiece. The [prison authorities do] not seek to justify the decision to revoke the hairpiece. The [prison authorities accept] the decision may well have been vulnerable on other administrative law grounds. 

That's as close as dammit to admitting that the original decision had little-or-nothing to do with security, as initially claimed, but rather represented an act of revenge against Smith. Somewhat worryingly, that original decision received the blessing of the Ombudsman prior to Smith challenging it in the High Court. It probably shouldn't have. 

However, even though it had no intention of removing Smith's wig from him, the Crown still was concerned about the width of Wylie J's decision on what is and isn't covered by the (legally protected) right to freedom of expression. So, it asked the Court of Appeal to reconsider that matter even though it would not now affect how Smith would be treated. 

The basic problem for the Court is this. "Rights" under the NZ Bill of Rights Act are intended to identify certain key aspects of human behaviour/experience and give these a special, heightened legal importance. If something is a "right", then the State (those who are exercising public power) is required to have extra-compelling reasons to interfere with it - it can only act in ways that limit that right if doing so is "demonstrably justified in a free and democratic society".

However, in order to specially protect a right to "freedom of expression", we have to somehow separate out a sub-category of "expressive activity" from everything that human beings do. Otherwise, we really are saying "people have a right to do what they want" - which isn't very useful when trying to identify key aspects of human behaviour/experience that the State must have extra-compelling reasons to interfere with. How, then, do we decide what "freedom of expression" does (and does not) cover.

The Court of Appeal considered a bunch of different ways that this line-drawing exercise could be carried out. It endorsed previous NZ court decisions that recognised that conduct alone can be a form of expression, thereby rejecting any attempt to limit the right to spoken or written words.

It also considered the position that only limited, specific "high value" forms of expression are protected by the right, with all other expression (as well as stuff that is non-expressive) not protected. But the Court rejects this - the "value" of expression might be relevant when judging if the reasons for limiting that expression are good enough, but not in determining if some particular act or behaviour qualifies as "expression" at all.

Instead, after considering a range of decisions from New Zealand and comparable overseas jurisdictions, the Court concluded that "Parliament would [not] have intended s 14 to apply other than in the case of conduct conveying, or attempting to convey, a meaning to others." The essence of the right, the Court found, lies in protecting the transfer of deliberately intended meaning from one person to another. Absent this, behaviour does not attract the special protection afforded by the right to freedom of expression (although, as the Court notes, this doesn't mean that it is without any legal protection at all).

That's fine - as the Court notes, it's a pretty standard approach in comparable liberal democracies. And as Wylie J noted in the High Court, Smith's claim to a freedom of expression was right at the boundary of any such right, so redrawing the line in a way that excludes it is a reasonable call.

The basic problem I foresee is that the Court equivocates somewhat on what exactly "conveying, or attempting to convey, a meaning to others" means. At some points, it seems to say that the issue depends upon the subjective intent of the person involved: "Acts whose rewards are confined to the actor’s own ego may well enhance self-fulfilment, but they are not expression, or the expression protected by s 14" (at [46]). And the Court's endorsement of an earlier High Court decision in Pointon v Police (finding that running in the nude is a form of expression) rests on the fact that "[Pointon] wished to draw attention to his alternative lifestyle choice and to make the point that, as he saw it, clothing was 'an artificial construct that covers the human form'."

But at other points, the Court seems to say that the issue depends on what an observer would take from viewing (or hearing) the behaviour in question. So, for example, because "[Smith's] assumption of a wig is calculated to make him less distinctive and more ordinary in appearance" (at [50]), no-one seeing him in his wig would derive anything in particular from doing so. And the Court approvingly cites the High Court decision in Thomson v Police: "Care must be exercised to ensure that 'expression' which has a protected status is not confused with mindless human utterances or sounds."

So, do you need both of these things before the s.14 rights protection kicks in - do you need to both consciously intend to send a message, and then do so in a way that observers recognise is conveying a message of some kind? Or is one or the other sufficient - can a person still gain the s.14 protection if they intend their behaviour to be saying something to the world (even if it doesn't then recognise that a message is being sent); or is it gained anytime a message is received by the world through a person's behaviour (even if they didn't actually intend their behaviour to do so)?

You can see why this distinction might matter. I wake up bleary eyed in some strange guy's bedroom. I grab a T-Shirt from the floor, throw it on without a look or a thought, and walk out the door to get a coffee. Going down the street the Police stop me and ask me what I'm doing wearing this in public. Can I assert my s.14 right to freedom of expression against a resultant charge of offensive behaviour?

Or, I walk down the street in front of processing Highland Pipe Band, loudly shouting out "quardle ardle oodle doodle" over and over again as my protest against the nonsensical imposition of colonial Scottish culture on this motu. No-one has a clue what I am doing or why. Can I assert my s.14 right to freedom of expression against a resultant charge of disorderly behaviour?

Before leaving the Court's judgment, however, a note of appreciation for some A++ judicial shade throwing in it. Delivering the Court's decision on the substantive question of whether wearing a wig is "expression", President Kós had no hesitation in declaring that he has no time for the rubbish of modern life. 

  • At [34], his Honour shames those wastrels polluting the twittersphere: "It might be noted that Holmes J lived in a pre-'post-truth' world, whereas nowadays unregulated social media permits just about anything to be published."
  • At [38], his Honour reveals his strong preference for RNZ National over The Edge: "'Low value' expression — whether mundane and innocuous (such as private discourse or commercial radio) or hateful and dangerous (such as hate speech, an incitement to violence or even violent action itself) is expression regardless." 
  • At [50], his Honour rightly calls out those too lazy to engage in proper summer grooming: "A man grows his hair and a moustache over the summer holidays. His workmates notice this on their return to work. No meaningful idea or information is conveyed by [this act] alone ... ."

Huzzah, sir! Huzzah!!