THE ATTORNEY-GENERAL v SMITH [2018] NZCA 24

THE ATTORNEY-GENERAL v SMITH [2018] NZCA 24 [1 March 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA187/2017[2018] NZCA 24BETWEEN THE ATTORNEY-GENERALAppellantAND PHILLIP JOHN SMITHRespondentHearing: 26 September 2017Court: Kós P, Cooper and Asher JJCounsel: U Jagose QC, Solicitor-General and V McCall for AppellantT Ellis and G Edgeler for RespondentJudgment: 1 March 2018 at 10 amJUDGMENT OF THE COURTA The appeal is allowed.B There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] Does a prisoner's wish to wear a wig engage the right to freedom ofexpression affirmed by s 14 of the New Zealand Bill of Rights Act 1990?1[2] A prison manager revoked the prisoner's permission to wear his wig when hewas returned to custody after absconding while on temporary release. In the1 Herein "the Act".High Court Wylie J concluded that the prisoner's wish to wear his wig while inprison engaged s 14 of the Act:214 Freedom of expressionEveryone has the right to freedom of expression, including thefreedom to seek, receive, and impart information and opinions ofany kind in any form.The Judge also concluded that the process adopted by the prison manager waserroneous. He should have acknowledged the prisoner's right to freedom ofexpression and set out, "albeit briefly", why he had reached the conclusion thelimitation on that freedom — removal of the wig was justified under s 5.[3] The Crown appeals those findings. But there is a preliminary question: is theappeal moot? Following Wylie J's decision permission to wear the wig wasreinstated. The prison does not intend to revoke the permission again if the appeal isallowed. There is no longer a dispute of right between the parties.Background[4] The prisoner-respondent, Phillip John Smith, was sentenced to lifeimprisonment for murder, paedophile offending, aggravated burglary and kidnappingin 1996. He was given a minimum non-parole period of 13 years. He has sought,but been denied, parole.[5] In 2001 Mr Smith began to lose his hair. Medical treatments wereunavailing. In 2012 he sought approval from the prison manager at Auckland Prisonto be permitted to possess and wear a wig. He said it would improve his self-esteemand confidence. A psychological assessment supported that claim. It would aid hisrehabilitation. It would also protect his scalp from sun exposure in summer. And itwould prevent heat loss in winter.[6] The application was granted by Mr Sherlock, the Prison Director at AucklandPrison. A wig was made. Mr Smith received it in April 2013. It attaches to his scalp2 Smith v Attorney-General on behalf of Department of Corrections [2017] NZHC 463, [2017]2 NZLR 704 [Smith v Attorney-General].with glue and tape. In July 2014 Mr Smith was moved to Spring Hill CorrectionsFacility. Permission was again granted for possession and use of his wig.[7] On 6 November 2014 he was released for three days. Temporary releasearrangements anticipate an eventual reintegration into society. The approvedsponsor, his sister, collected him from the prison. But Mr Smith then fled. Heboarded a flight to Santiago. Then another to Rio de Janeiro. Six days later he wasarrested there. He was deported and returned to Auckland Prison on 29 November2014. On arrival it appeared to the authorities that he had consumed drugs of somesort.3 He was placed in the At Risk Unit to recover from their effects.[8] The prison manager, Mr Sherlock, was informed of these events. On1 December 2014 he revoked permission for Mr Smith to retain his wig. Mr Smithsought reasons. The response was perfunctory:Have spoken with Prison Manager. Prison Manager has withdrawn hisapproval of the hairpiece due to the actions conducted by the prisoner.[9] Mr Smith appeared before the District Court at Auckland on charges arisingfrom his escape.4 He was by then entirely bald. Media reporting was pervasive.Comparator photographs were used to show the difference in Mr Smith's appearancewith and without the wig.[10] Mr Smith complained to the Office of the Ombudsman about the decision torevoke permission. In April 2016 the Ombudsman concluded the decision was notunreasonable.[11] Mr Smith then filed his present judicial review proceedings. Three causes ofaction were advanced:(a) breach of natural justice (ss 27(1) of the Act and s 6(1)(f)(ii) of theCorrections Act 2004) — in relation to the prison manager's refusal to3 Mr Smith claims it was a sleeping pill provided by the Brazilian authorities; the Crown says heobtained unspecified drugs from another prisoner and ingested them before or on the flight.4 Mr Smith was sentenced to two years and nine months' imprisonment in relation to thosecharges: R v Smith [2016] NZDC 13828.give reasons or consult with the plaintiff about the decision to removehis wig;(b) failure to consider that Mr Smith's wig was "an act of expression"protected by s 14 of the Act.5 A declaration that the decision toremove the wig was in breach of s 14 was sought, together with anorder quashing the decision; and(c) breach of s 23(5) of the Act (the right of a detained prisoner be treatedwith humanity and respect for his inherent dignity). Again adeclaration and order quashing were sought.Damages of $5,000 were sought on the second and third causes of action only.Judgment appealed[12] Wylie J delivered his judgment on 16 March 2017. The judgment addresses,directly, only the second cause of action. It concluded that Mr Smith's practice ofwearing a wig was an act in exercise of his right to freedom of expression under s 14of the Act. While Wylie J gave a number of reasons, the essential rationale was thatwearing the wig was, for Mr Smith, an act with "expressive content". He hadobtained the wig to improve his self-confidence and self-esteem:6In my judgment, in wearing a hairpiece, Mr Smith was endeavouring topresent himself to others in a way with which he was comfortable. Thewearing of a hairpiece was a physical act by which Mr Smith sought topromote his self-confidence and self-esteem. Mr Smith was trying to say –this is who I am and this is how I want to look. He was trying to affect theperception that others would have of him. His action in wearing a hairpiecehad expressive content.[13] The Judge considered that s 14 was a mandatory relevant consideration in thedecision whether to remove Mr Smith's wig. The prison manager should haveconsidered whether such a decision would have been a reasonable limit prescribed5 Together with the International Covenant on Civil and Political Rights 999 UNTS 171 (openedfor signature 16 December 1966, entered into force 23 March 1976) and the UniversalDeclaration of Human Rights GA Res 217A, A/Res/217 (1948), art 19.6 Smith v Attorney-General, above n [6], at [70].by law. "In other words, he should have acknowledged the right affirmed by s 14and considered s 5 of [the Act]."7[14] Wylie J then went on to reject the Crown's argument that while makers ofdiscretionary ministerial decisions were obliged to exercise their powers in a mannerconsistent with the Act in a prison management context that applied only to theoutcome of the administrative decision-making and not the process of arriving at theparticular decision. The Judge considered the decision of the House of Lords inR (SB) v Governors of Denbigh High School.8 While he accepted that thedecision-making in the present case was a relatively low-level managerial decision,the particular context involving coercive powers made it distinguishable from R (SB)v Governors of Denbigh High School.9 A mandatory process therefore applied forthe making of an administrative decision affecting a prisoner's rights under the Act.The Judge continued:[87] I do not consider that a full step by step analysis as discussed in Hansenwas necessarily required. Rather, Mr Sherlock could, and should, haveacknowledged Mr Smith's right to freedom of expression under s 14, and setout, albeit briefly but in a transparent way, why he had reached theconclusion that the limitation he proposed was justified under s 5. Asuccinct summary of his reasons would have sufficed.[88] In the absence of any evidence to the contrary, I conclude thatMr Sherlock failed to take into account a relevant, and indeed a mandatory,consideration, namely Mr Smith's right to freedom of expression under [theAct], and whether or not the limitation he was proposing on that right,through a decision to revoke permission earlier given for the issuance of ahairpiece, was a justified limitation on the right.[15] The Judge said he did not need to decide the other causes of action. He madeno comment at all on the third cause of action concerning s 23(5). As it happens,that approach has caused us some unintended difficulty in disposing of the presentappeal. On the second cause of action (breach of natural justice/s 27) the Judgeindicated, per obiter, that the original reasons given for the decision to revokepermission to wear the wig were inadequate.10 He continued:117 At [74].8 R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100.9 Smith v Attorney-General, above n 2, at [86].10 At [90]–[91].11 At [91].A decision-maker should not be able to avoid challenge by givingperfunctory reasons, and in my view the more or less contemporaneousreasons given by Mr Sherlock — the decision was made because ofMr Smith's actions — were perfunctory.[16] In the result the Judge made a declaration that Mr Sherlock's revocation ofpermission failed to take into account as a relevant consideration Mr Smith's right tofreedom of expression under s 14. And, further, that he failed to conduct anyassessment under s 5 of the limitations on that right. An order in the nature ofcertiorari quashing the decision was made. Noting that damages were not expresslysought in relation to the cause of action on which he had decided the matter,12 theJudge considered that the declaration and order quashing the decision were sufficientto vindicate the rights breached. Damages were declined.Issues[17] This appeal raises three issues:(a) Is the appeal moot? If so, should either of the remaining issues beaddressed?(b) Does the respondent's wish to wear a wig engage the right to freedomof expression affirmed by s 14 of the Act?(c) Did the prison manager have to identify the s 14 right, potential limitsand undertake a proportionality analysis? Or is it sufficient that thedecision limited a protected right in a manner ultimately justifiedunder s 5?Issue 1: Is the appeal moot? If so, should either of the remaining issues beaddressed?[18] Following the delivery of Wylie J's judgment, permission to wear the wigwas reinstated. The Crown submissions record:12 Which was not in fact correct: damages were sought on that cause of action, as well as thes 23(5) cause of action. They were not sought on the natural justice cause of action. Mr Smith,however, mounts no cross-appeal.The appellant has remade the challenged decision and the respondent is,again, authorised to wear his hairpiece. The appellant does not seek tojustify the decision to revoke the hairpiece. The appellant accepts thedecision may well have been vulnerable on other administrative lawgrounds.The submissions go on to observe that the appeal was brought to determine what areprimarily now legal issues, being those set out in Issues 2 and 3.[19] The prospect of the appeal being moot in the circumstances was notaddressed in written submissions. The Court issued a minute on the subject prior tothe hearing. The issue was addressed orally at the outset of the hearing.[20] The Solicitor-General confirmed the stance taken in her written submissions.She went further. She advised that the prison has no intention to revoke thepermission again if the appeal is allowed. She accepted that there was now nocurrent dispute between the parties.[21] This is not, then, the typical administrative law case where an order is madequashing a decision, which order is then honoured by the government, but with thegovernment appealing in order to reinstate lawfully the challenged administrativeaction.[22] We are in no doubt that the Crown's appeal is moot. There is no currentdispute of right between the parties. The outcome of the appeal will make nodifference to Mr Smith, and he has brought no cross-appeal. If Wylie J's decision isreversed, it will assist the Crown only in an abstract sense in future cases.[23] A similar situation arose before this Court in Hutchinson v A.13 In that casean order had been made quashing the decision of a Board of Trustees suspending andexcluding A from a secondary school. A was a special needs student. TheHigh Court decision was based on the single ground (among several pleaded) thatthe Board had not sufficiently examined the facts of A's case before making itsdecision. The appeal sought to raise wider grounds. And A gave notice that heintended to support the judgment on the basis the Board's actions also involved13 Hutchinson v A [2015] NZCA 214, [2015] NZAR 1273.unlawful discrimination under the Human Rights Act 1993. After the appeal wasfiled A left the school and the district. He had no intention to return. In thosecircumstances this Court declined to hear the appeal on the basis that it was moot.We noted that it is a well-established general principle that appellate courts will notdetermine appeals where there is no longer a live issue between the parties. TheCourts are reluctant to consider academic or abstract questions where there is nolonger a dispute between the parties to be resolved.14[24] There is, however, an exception. As a matter of discretion a court may hearan appeal, despite the absence of a dispute affecting the rights and obligations of theparties inter se, where there is an important question of law concerning a publicauthority.15 An important consideration is the responsibility of a court to show duesensitivity to the role in New Zealand's tripartite system of government: "[i]ngeneral advisory opinions are not appropriate."16[25] A difficulty standing in the way of discretionary determination of such anissue in Hutchinson, however, was the fact that the Judge had made no first instancefindings in relation to discrimination and breach of the Human Rights Act 1993. Asa consequence the Court of Appeal would have been required to consider freshaffidavit evidence and cross-examination. So in Hutchinson the discretion wasdeclined and no further hearing occurred.[26] In the present appeal all counsel urged us to address Issue 2. That is whetherMr Smith's wish to wear his wig engaged the right to freedom of expression affirmedby s 14. We are satisfied that this issue can be addressed in the present appeal. Itraises an important question with potential application in other cases. It has been thesubject of a reasoned determination in the High Court. No further evidence isrequired.[27] The parties' positions diverged however, on whether the Court shouldconsider Issue 3. That is whether the prison manager had (on the one hand) toidentify the right and undertake a proportionality analysis or (on the other) it would14 At [11]. See also Gordon-Smith v R [2008] NZSC 56, [2009] 1 NZLR 721 at [14].15 At [13] citing Gordon-Smith v R, above n 14, at [15].16 At [14].be sufficient simply that the outcome of his determination limited a protected right ina manner justified under s 5. The Solicitor-General urged that we determine thatissue. Mr Ellis on behalf of Mr Smith, however, submitted that we should not.[28] In this respect we agree with Mr Ellis. The High Court Judge did not resolveliability under the first and third causes of action. It is particularly significant thatthe Judge did not determine the third cause of action which concerns the rights ofdetained persons to be treated with humanity and with respect for their inherentdignity enshrined in s 23(5) of the Act. Issue 3 essentially asks the Court to giveguidance on the process to be adopted by a prison manager in making a decisionremoving prisoner property which (assuming Issue 2 is answered in the affirmative)engages a right to freedom of expression. We do not consider that issue can beanswered without broader consideration of s 23(5) and the wider statutory context asit relates to corrections and, particularly, the Corrections Act 2004 and theCorrections Regulations 2005. On those matters we have neither findings norsubmissions. In those circumstances, and in agreement with Mr Ellis, we will not asa matter of discretion determine Issue 3.Conclusion[29] The present appeal is moot. The Court will, in its discretion, address Issue 2.But it will not address Issue 3.Issue 2: Does the respondent's wish to wear a wig engage the right to freedom ofexpression affirmed by s 14 of the Act?[30] We summarised earlier the Judge's reasoning on this issue.17 As we noted,the essential rationale was that wearing the wig was, for Mr Smith, an act with"expressive content". It was a physical action contrived to affect the perceptionothers had of him.17 See above at [12] of this judgment.Submissions[31] The Solicitor-General submitted that while the freedom of expressionprotected by s 14 should be given a broad meaning to cover a range of expressiveconduct — including non-verbal symbolic expression — it must be communicativeof something in order to benefit from s 14's protection. The wearing of the wig isnot expression; it does not communicate any content, ideas or meaning to thirdpersons. Rather its purpose (and sole effect) is to make Mr Smith feel better. Itseffects are all in the mind of Mr Smith, including his perceptions of what he thinksare in the minds of other people. She accepted that some hairstyles might amount toexpressive conduct for s 14 purposes. For instance, where conveying a cultural,religious or political message. But in this case the wig was worn only to addressMr Smith's subjective feelings of low self-esteem and self-confidence. There is noexternal audience for such feelings, and the wearing of this wig does not involve"expression" protected by s 14.[32] For Mr Smith, Mr Ellis submitted that the Crown's proposition thatself-esteem and self-confidence do not engage freedom of expression was entirelywrong. Want of self-esteem does not arise in a vacuum. Rather, it likely arises fromperceived adverse expressions of worth by others in a social setting. The response tothose expressions — modified behaviour or appearance — is as much protectedexpression as would be a verbal entreaty for greater respect. In Mr Ellis'ssubmission that appreciation lay beneath the decision of the Judge. The wearing ofthe wig was an expression of both physical form and personality. Inasmuch as it wascapable of altering the perceptions of others, it amounted to expression protected bys 14.Discussion[33] As its title records, a core purpose of the Act is to affirm, protect and promotehuman rights and fundamental freedoms in New Zealand. A broad (or "generous"),purposive construction must be given to the Act's provisions to "give individuals thefull measure of the fundamental rights and freedoms referred to".18 That approachhas usually been adopted by New Zealand's courts in considering s 14. In Moonen vFilm & Literature Board of Review this Court described expression protected to be"as wide as human thought and imagination".19 The Supreme Court endorsed thatapproach in Morse v Police.20 It is now orthodox that s 14 protects symbolicconduct as well as speech. In Hopkinson v Police Ellen France J noted that "it iswell established that [freedom of expression] includes non-verbal conduct such asflag burning".21 In a well-known example, Pointon v Police, Heath J held that anaturist running naked through woods (so far as we know, largely silently) engageds 14, because he wished to draw attention to his alternative lifestyle choice and tomake the point that, as he saw it, clothing was "an artificial construct that covers thehuman form".22 The justification for any limitations imposed by the state on thatright — for example, under the criminal law — then falls to be determined under thebalancing exercise in s 5.[34] Professor Petra and Dr Andrew Butler in The New Zealand Bill of Rights Act:A Commentary identify four theoretical rationales for the protection of freedom ofexpression.23 The first and most influential justification is the "marketplace ofideas" articulated by Oliver Wendell Holmes J in his famous dissenting judgment inAbrams v United States.24 The marketplace is the best test of truth and offensive,bad and false ideas should all be permitted to be expressed and then criticisedwithout the predetermination inherent in censorship or like constraints. It might benoted that Holmes J lived in a pre-"post-truth" world, whereas nowadaysunregulated social media permits just about anything to be published. But earliercenturies had pamphleteers operating in much the same way; it was only their reachthat was really different.18 Minister of Home Affairs v Fisher [1980] AC 319 (PC) at 328; and Flickinger v Crown Colony ofHong Kong [1991] 1 NZLR 439 (CA) at 440.19 Moonen v Film & Literature Board of Review [2000] 2 NZLR 9 (CA) at [15].20 Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1.21 Hopkinson v Police [2004] 3 NZLR 704 (HC) at [41].22 Pointon v Police [2012] NZHC 3208 at [7]. See similarly Gough v United Kingdom (2015)61 EHRR 8 (Section IV, ECHR).23 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed,LexisNexis, Wellington 2015) at [13.6]. These basic rationales were most famously delineatedin Thomas Emmerson "Toward a General Theory of the First Amendment" (1963) 72 Yale LawJournal 877 at 878–879.24 Abrams v United States 250 US 616 (1919) at 630. As to the background to that decision, seeThomas Healy The Great Dissent (Henry Holt & Co, New York, 2013).[35] The second rationale is that free speech is the engine room of a democraticstate. Effective democratic government works best through vigorous debate thatonly a broad conception of free speech can maintain.25 These articulations, it may benoted, apply with greater ease to freedom of speech, rather than the broaderconception of freedom of expression.[36] Thirdly, freedom of expression is valuable in its own right as a matter ofhuman self-fulfilment. In R v Sharpe L'Heureux-Dubé, Gonthier and Bastarache JJheld self-fulfilment is one of the rationales for free expression and therefore "allcontent regardless of its popularity, aesthetic or moral tastefulness or mainstreamacceptance" is protected.26 Professor Claudia Geiringer and Steven Price add to thisthat speech is part of who we are.27 Emotional and intellectual development isfacilitated by self-expression. That covers "all communicative expression". TheEuropean Court of Human Rights has observed that the right to create, perform,distribute or exhibit works of art contributes to an exchange of ideas and personalfulfilment of individuals and that that is essential for a democratic society.28[37] Finally, freedom of speech is a "societal safety valve".29 That is, repressionby the government of free speech encourages conspiracy; "in the battle for publicorder, free speech is the ally, not the enemy".30[38] Western political thought readily applies hierarchical analysis to protectedexpression. That philosophical strain is evident also in freedom of expressionjurisprudence. An eminent example is found in the speech of Baroness Hale inCampbell v MGN Limited:3125 See for example New York Times v Sullivan 376 US 254 (1964) at 270 per Brennan J.26 R v Share (2001) 194 DLR (4th) 1 (SCC) at [141].27 Claudia Geiringer and Steven Price "Moving from Self-Justification to DemonstrableJustification — the Bill of Rights and the Broadcasting Standards Authority" in Jeremy Finn andStephen Todd (eds) Law, Liberty, Legislation: Essays in honour of John Burrows QC(LexisNexis, Wellington, 2008) 295 at 320 (emphasis added).28 Müller v Switzerland (1991) 13 EHRR 212 (ECHR) at [33].29 See R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL)at 126.30 Butler and Butler, above n 23, at [13.6.15].31 Campbell v MGN Ltd UKHL 22, [2004] 2 AC 457 at [148]. See also Geiringer and Price, aboven 27, at 321–323; Hosking v Runting [2005] 1 NZLR 1 (CA) at [239] per Tipping J;and Helen Fenwick and Gavin Philipson Media Freedom under the Human Rights Act (OxfordUniversity Press, Oxford, 2006) at 15.There are undoubtedly different types of speech, just as there are differenttypes of private information, some of which are more deserving of protectionin a democratic society than others. Top of the list is political speech. Thefree exchange of information and ideas on matters relevant to theorganisation of the economic, social and political life of the country iscrucial to any democracy. Without this, it can scarcely be called ademocracy at all. This includes revealing information about public figures,especially those in elective office, which would otherwise be private but isrelevant to their participation in public life. Intellectual and educationalspeech and expression are also important in a democracy, not least becausethey enable the development of individuals' potential to play a full part insociety and in our democratic life. Artistic speech and expression isimportant for similar reasons, in fostering both individual originality andcreativity and the free-thinking and dynamic society we so much value. Nodoubt there are other kinds of speech and expression for which similarclaims can be made.We doubt however that a hierarchical approach is appropriate at the s 14, rather thans 5, stage of analysis. "Low value" expression — whether mundane and innocuous(such as private discourse or commercial radio) or hateful and dangerous (such ashate speech, an incitement to violence or even violent action itself) — is expressionregardless. Constraint of the former will seldom be justifiable under s 5. Constraintof the latter will seldom be difficult to justify under s 5.32 It follows that themundane nature of the activity at issue in this case — the wearing of a wig – doesnot necessarily exclude it from s 14 protection.[39] The important question for present purposes is instead whether Mr Smith'saction in wearing a wig is "expression" at all for the purposes of s 14. The wordingof that provision — set out above at [2] of this judgment — is articulated differentlyto the other protected freedoms. Although the definition is non-exclusive, it isimpossible not to read the added words "including the freedom to seek, receive, andimpart information and opinions of any kind in any form" as indicative of the scopeof "expression". The fact and nature of that articulation is both expansive andlimiting in effect. It is expansive inasmuch as the definition is non-exclusive. It islimiting in that the focus of the extended definition is upon the protection ofcommunication of "information and opinions".[40] In this the New Zealand legislation has much in common with the CanadianCharter of Rights and Freedoms, which at s 2(b) expresses as a fundamental freedom32 Our analysis here accords with that expressed in Butler and Butler, above n 23, at [13.7.23]."freedom of thought, belief, opinion and expression", and s 16(1) of the SouthAfrican Constitution. The International Covenant on Civil and Political Rights,which the Act affirms, states at art 19(2):Everyone has the right to freedom of expression; the right includes freedomto seek, receive, and impart information and ideas of all kinds, regardless offrontiers, either orally, in writing, or in print, in the form of art, or throughany other media of his or her choice.Likewise, the European Convention for the Protection of Human Rights andFundamental Freedoms describes a right of freedom of expression as including"freedom to hold opinions and to receive and impart information and ideas".33[41] These jurisdictions have not acceded to the proposition that conduct of allkinds amounts to expression. The distinction drawn is not based on valuing theconduct — a distinction we have already rejected — but based instead on the contentand purpose of the conduct. The Supreme Court of Canada has held the essentialcharacter of protected expression is that it is an activity that conveys a meaning.Dickson CJ put it in those terms in Attorney-General (Quebec) v Irwin Toy Ltd(Irwin Toy):34We cannot, then, exclude human activity from the scope of guaranteed freeexpression on the basis of the content or meaning being conveyed. Indeed, ifthe activity conveys or attempts to convey a meaning, it has expressivecontent and prima facie falls within the scope of the guarantee. Of course,while most human activity combines expressive and physical elements, somehuman activity is purely physical and does not convey or attempt to conveymeaning. It might be difficult to characterise certain day-to-day tasks, likeparking a car, as having expressive content. To bring such activity within theprotected sphere, the plaintiff would have to show that it was performed toconvey a meaning. For example, an unmarried person might, as part of apublic protest, park in a zone reserved for spouses of government employeesin order to express dissatisfaction or outrage at the chosen method ofallocating a limited resource. If that person could demonstrate that hisactivity did in fact have expressive content, he would, at this stage, be withinthe protected sphere and the s 2(b) challenge would proceed.The Supreme Court of Canada has reiterated that test in later decisions. In Rocket vRoyal College of Dental Surgeons of Ontario, the appellants were dentists who had33 Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 221(opened for signature 4 November 1950, entered into force 3 September 1953), art 10(1).34 Attorney-General (Quebec) v Irwin Toy Ltd [1989] 1 SCR 927 at 969.advertised their services contrary to regulations restricting such advertising.35 Theychallenged the constitutionality of restriction on the basis of the right to freedom ofexpression guaranteed under the Charter. The Court noted the test under Irwin Toywas whether the relevant conduct aims to convey a meaning and was plainlysatisfied that professional advertising met that test.36 In Montréal (City) v 2952-1399Québec Inc, a club that featured female dancers was prosecuted for nuisance owingto their playing music and "commentary accompanying the show" through aloudspeaker so that passers-by might be enticed to enter.37 The Court there, too, wassatisfied that the emitting by loudspeakers from the building onto the street did haveexpressive content and therefore was prima facie protected in terms of Irwin Toy.38Irwin Toy was reviewed and applied again in R v Keegstra in which Dickson CJemphasised it was not the content of the expression that was relevant to interpretings 2(b) of the Charter.39 Any activity that conveys or attempts to convey a meaninghas expressive content, and whether that meaning is "invidious and obnoxious isbeside the point".40 The s 14 inquiry thus focuses upon whether the conduct wasintended to deliver a message.41[42] European Convention jurisprudence is to similar effect. A number of casesunder that Convention — art 10(1) of which is quoted at [40] above — haveconcerned attire or appearance. In Stevens v United Kingdom the applicant's childhad refused to wear a tie as part of his school uniform.42 The Commission found thatalthough the right to freedom of expression might include the right to express ideasvia the way a person dresses, the application of the rule here had not prevented theexpressing a particular opinion or idea.43 A similar conclusion was reached by theCommission in Tig v Turkey where a bearded student was denied access to auniversity campus.44 The applicant was not in wearing the beard expressing or35 Rocket v Royal College of Dental Surgeons of Ontario [1990] 2 SCR 232.36 At 244.37 Montréal (City) v 2952-1399 Québec Inc 2005 SCC 62, [2005] 3 SCR 141.38 At 167.39 R v Keegstra [1990] 3 SCR 697.40 At 730. See also RWSDSU v Dolphin Delivery Ltd [1986] 2 SCR 573 at 588 per McIntyre J.41 Butler and Butler, above n 23, at [13.7.15].42 Stevens v United Kingdom (1986) 46 DR 245.43 At [2]. See also Kara v United Kingdom [1998] ECHR 36528/97 in which a transvestite'scomplaint about an employer refusing him the right to wear a dress failed for the same reason.44 Tiğ v Turkey [2005] ECHR 8165/03.observing any particular cultural or religious belief; he had not been prevented fromexpressing a particular opinion by the ban.[43] Appearance cases have commonly failed in United States First Amendmentlitigation. In Karr v Schmidt the Fifth Circuit Court of Appeals expressed doubt"that the wearing of long hair has sufficient communicative content to entitle it to theprotection of the First Amendment".45 It acknowledged that in some circumstanceshair length might convey a "discrete message", but here Mr Karr (a 16-year old highschool student) did not assert any such purpose but simply "[liked] his hair long".46Likewise in Blau v Fort Thomas Public School District a challenge to a prescriptiveschool uniform code failed in the Sixth Circuit Court of Appeals where the plaintiff'sobjection was merely that she wished to wear clothes she felt good in and wished tobe able to express her individuality.47 The Court stated that "the First Amendmentdoes not protect such vague and attenuated notions of expression". Rather theplaintiff would need to demonstrate that the desired conduct could fairly bedescribed as imbued with elements of communication which convey a particularisedmessage that would be understood by those who viewed it.48 In contrast, however, inChurch v Board of Education of Saline Area School District a 12th grade student in1970 succeeded in challenging a school dress code where his purpose in wearing hishair long was to dissent in a tangible manner to the continuation of the Vietnam Warand to symbolise the importance of dissent generally in opposition to intolerance forsuch action.49[44] Some support for a similar approach under s 14 can be found in theNew Zealand jurisprudence. In Brooker v Police Blanchard J observed that "in atypical incident leading to a charge of disorderly behaviour, for example where thedefendant behaves in a drunken and noisy manner in a public place, there will be no45 Karr v Schmidt 460 F 2d 609 (5th Cir 1972) at 613. See also Mercer v Lothamer 321 F Supp335 (ED Ohio 1971); Miller v Gillis 315 F Supp 94 (ED Illinois 1969); Brownlee v BradleyCounty, Tennessee Board of Education 311 F Supp 1360 (SD Tenn 1970); and Neinast v Boardof Trustees of the Columbus Metropolitan Library 190 F Supp 2d 1040 (ED Ohio 2002) — acase concerning footwear (or its absence): certiorari was denied by the Supreme Court.46 At 614.47 Blau v Fort Thomas Public School District 401 F 3d 381 (6th Circ 2005).48 At 390.49 Church v Board of Education of Saline Area School District of Washtenaw County, Michigan339 F Supp 538 (ED Michigan 1972).Bill of Rights dimension".50 These observations, and those of Dickson CJ inIrwin-Toy (cited at [41] above) were relied upon by Priestley J in Thompson v Policein concluding that loud nocturnal screeching by the appellant (apparently to attractstray cats, which she would then feed) did not engage s 14 protection. The Judgeobserved:51Whether calling for cats is expressive conduct for s 14 purposes, is not easilyanswered in the absence of any native test. Policy considerations tugstrongly both ways. While it is dangerous, as the Chief Justice noted, toexclude from "expression" certain types of conduct lest the right itself bediluted, equally it is farcical to suggest that every human activity is anexercise of the right to free expression. Care must be exercised to ensurethat "expression" which has a protected status is not confused with mindlesshuman utterances or sounds. As Holmes J famously commented, freedom ofexpression does not extend to falsely calling out "Fire" in a crowded theatre.For reasons we give shortly, we agree with the penultimate sentence. We doubthowever that it is correct that a false claim of "Fire" does not attract a prima facies 14 protection, because it plainly does communicate an idea or opinion. But itsfalsity immediately robs it of that prima facie protection under s 5.52 It may beobserved in passing that Professor and Dr Butler doubt the correctness of theconclusion reached on the facts in Thompson.53 It is unnecessary for us to enter thatdebate to resolve the present appeal.[45] In our view the prevailing overseas jurisprudence is correct to impose apurposive limit on protected "expression". The purpose neither of the conventionsnor of the Act is to clothe all human conduct with prima facie protection, despite thearguable benefits thereof for human self-fulfilment. That is so for three reasons.[46] The first is that we consider that to justify and engage the protection,"expression" must involve, as Dickson CJ put it in Irwin-Toy, an attempt to conveymeaning to another. Acts whose rewards are confined to the actor's own ego maywell enhance self-fulfilment, but they are not expression, or the expression protectedby s 14. Reading Shakespeare and Austen enhances self-fulfilment, but (absent50 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [58].51 Thompson v Police [2012] NZHC 2234, [2013] 1 NZLR 848 at [75] (footnote excluded).52 Prosecution of the miscreant under s 145 of the Crimes Act 1961, for criminal nuisance, wouldpredictably succeed and s 14 would offer no shield against it.53 Butler and Butler, above n 23, at [13.7.5].public performance) it is not expression (other than on the part of Shakespeare andAusten respectively). As we note later, wearing long hair or growing a moustachecommunicate nothing of meaning requiring protection. Without more they neitherprovoke ideas nor inform. Behaviour communicating nothing of meaning shouldnot, in our view, engage s 14 rights analysis and s 5 balancing process that wouldfollow. No fundamental freedom contained in the Bill of Rights is engaged and it isinappropriate to invoke a Bill of Rights analysis in assessing purported constraintson such activity.[47] Secondly, it is unnecessary to engage s 14 to protect behaviour devoid ofmeaningful content. The Act is not a complete statement of the rights of citizens thatthe law recognises in New Zealand: there are rights that lie outside the Act whichare nevertheless rights.54 Section 28 of the Act recognises that reality. It states thatan existing right or freedom is not restricted or abrogated simply because it is notincluded or fully included in the Act. Rights recognised by the common law remain.It is a basic proposition at common law that individuals are able to do anything thatis not prohibited by statute or common law.55 Organs of state cannot constrain theliberties of citizens (even of serving prisoners) except upon lawful and reasonablegrounds (including regulations — such as the Corrections Regulations 2005 —which must be intra vires) and after considering any contrary arguments by thosepersons.56 It is the genius of the common law of judicial review that it is engagedeven if the Act's formal protections are not. Even though s 14 is not engaged in thiscase, any rights analysis must begin with the presumption that Mr Smith has thecommon law right to wear a wig if he wishes, simply because it is not illegal to doso. There would need to be a lawful basis, grounded in statute or regulation, toprevent him doing so. Without that, if the wig were removed by an officialpurporting to exercise a statutory power Mr Smith may seek judicial review. Inaddition, civil remedies may lie against anyone wrongly removing it. The absence of54 Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington,2015) at 348–349; and Butler and Butler, above n 23, at [3.3.28].55 See Butler and Butler, above n 23, at [3.2.2].56 As to the common-law rights of prisoners see McCann v State Hospitals Board for Scotland[2017] UKSC 31 at [51] per Lord Hodge citing Raymond v Honey [1983] 1 AC 1 (HL).a Bill of Rights remedy does not leave Mr Smith without other possible means ofredress.57[48] Thirdly, imposing a s 14 rights overlay in such cases provides littlemeaningful protection. Where the conduct is devoid of content, legitimateconstraints may more readily be justified under s 5 than where meaning is sought tobe conveyed. And where the conduct is otherwise unlawful — such as the "Fire"example postulated by Holmes J, or involves violence or a breach of copyright —again the s 5 analysis is unlikely to mean the prima facie protection amounts to muchmore than a momentary fig leaf.58[49] For these three reasons we do not consider Parliament would have intendeds 14 to apply other than in the case of conduct conveying, or attempting to convey, ameaning to others.[50] Assessed against that test, we do not consider Mr Smith's desire to possessand wear a wig involves conduct conveying or attempting to convey meaning. It isnot enough that people may view him differently hirsute as opposed to bald. Allactivity in the presence of others may provoke a reaction. A man drives his car onthe road; other motorists see him and steer clear. His act of driving is not protectedexpression, because no identifiable idea or meaningful information is conveyed toanyone else. A man grows his hair and a moustache over the summer holidays. Hisworkmates notice this on their return to work. No meaningful idea or information isconveyed by these acts alone; no protected expression is involved. Mr Pointon, theardent naturist jogger, runs naked through the forest.59 Protected expression isinvolved, for the reasons noted above at [33] of this judgment. But if Mr Pointonthen puts his clothes on for the run home from the forest, the situation is quitedifferent. In now adopting orthodox attire, he conveys no particular meaning toanyone seeing him.57 As noted at [18] above, the Crown acknowledged the "vulnerability" of the prison manager'sdecision at common law and no longer sought to justify it.58 As to the copyright example, see Television New Zealand v Newsmonitor Services Ltd[1994] 2 NZLR 91 (HC) at 95.59 See Pointon v Police, above n 22.[51] Therein, we suggest, lies the paradox of Mr Smith's case. He does not likebeing bald, being seen bald or the reaction he perceives other people have to hisbeing bald. It is the baldness that is distinctive, and which he dislikes. Hisassumption of a wig is calculated to make him less distinctive and more ordinary inappearance. This makes him feel better, but it is the antithesis of protectedexpression. His actions are the equivalent of Mr Pointon, the naturist jogger, puttinghis clothes back on. Wearing a wig for that purpose does not convey meaning, doesnot attempt to convey meaning, and does not engage s 14.Conclusion[52] We conclude that Mr Smith's wish to wear a wig did not engage the right tofreedom of expression affirmed by s 14 of the Act.Issue 3: Did the prison manager have to identify the s 14 right, potential limitsand undertake a proportionality analysis? Or is it sufficient that the decisionlimited a protected right in manner ultimately justified under s 5?[53] For reasons given at [28], we decline to answer this issue.Result[54] The appeal is allowed. The respondent's wish to wear a wig did not engages 14 of the New Zealand Bill of Rights Act 1990.[55] Given the underlying mootness of the appeal, we make no order for costs.Solicitors:Crown Law Office, Wellington for AppellantNat Dunning Law, Wellington for Respondent