In today’s decision Attorney-General v Smith [2018]
NZCA 24 the Court of Appeal observed at [47] that
“... any rights analysis must begin with
the presumption that Mr Smith [a sentenced prisoner] has the common law right
to wear a wig if he wishes, simply because it is not illegal to do so.”
Sometimes cases are brought on grounds which obscure
basic issues. There can be few points more basic in this context than the rights
of people to do things that are not unlawful. Instead of relying on that right,
it seems that this case was brought alleging a breach of the New Zealand Bill
of Rights Act 1990, s 14. Arguments therefore were diverted to the issues
whether wig-wearing is an “expression” within the terms of that section.
The High Court had held that it is, but the Court of
Appeal overruled that. In that sense, Mr Smith lost the appeal. But it is wrong
to say, as our news media are currently saying, that “Murderer
loses legal right to wear wig in prison”, and “Wig-wearing
murderer Phillip John Smith has no rights to hairpiece, court rules”.
Indeed, as things are between the parties, the dispute
is settled and the issue is moot, and the Court of Appeal only issued a
judgment because the issue of the engagement of s 14 “raises an important
question with potential application in other cases” (at [26]).
You may wonder, as I do, why Mr Smith should want to
wear a wig, given that mature men with full heads of hair look like elderly
children.
