A v Attorney-General
[2013] NZCA 289
•8 July 2013 at 10 am
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NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THE NAME OR PARTICULARS LIKELY TO LEAD TO THE IDENTIFICATION OF THE APPELLANT, INCLUDING WHERE HE WORKED AT THE TIME AND HAD PREVIOUSLY WORKED, UNTIL FURTHER ORDER OF THE HIGH COURT OR THIS COURT CONTINUES IN EFFECT.
ORDER THAT NO PERSON OTHER THAN THE PARTIES TO THE APPEAL OR THEIR COUNSEL MAY HAVE ACCESS TO ANY DOCUMENTS ON THIS COURT'S FILE WITHOUT THE PERMISSION OF A JUDGE. ORDER TO CONTINUE IN FORCE UNTIL FURTHER NOTICE OF THIS COURT OR THE HIGH COURT.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA294/2013 [2013] NZCA 289
BETWEEN A
Appellant
AND
THE ATTORNEY-GENERAL First Respondent
PAULA REBSTOCK Second Respondent
Hearing: 18 June 2013 Court:
O'Regan P, Ellen France and Harrison JJ
Counsel:
J S McHerron for Appellant
U R Jagose and C I J Fleming for RespondentsJudgment:
8 July 2013 at 10 am
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe cross-appeal is allowed. The orders made in the High Court (set out at [8] of the Reasons of the Court) are set aside.
C We make no order for costs.
A V THE ATTORNEY-GENERAL & ANOR CA294/2013 [2013] NZCA 289 [8 July 2013]
DAn order is made that no person other than the parties to the appeal or their counsel may have access to any documents on this Court’s file without the permission of a Judge. This order is to continue in force
until further order of this Court or the High Court.
REASONS OF THE COURT
(Given by O’Regan P)
Table of contents
Para No
Introduction [1] Issues for determination [10] Factual background [13] Terms of reference: “strong suspicion” [14] Was there probative evidence supporting the finding of
“strong suspicion” [32]
Natural justice: has adequate disclosure been made to the appellant? [45] What disclosure has been made? [47] What additional disclosure is sought? [49] What is the entitlement? [58] The appellant’s disclosure requests [62]
Suppression [71] Result [75] Costs [76]
Introduction
[1] In May 2012, the opposition spokesperson on Foreign Affairs and Trade, the Hon Phil Goff, asked a question in Parliament that suggested he had obtained information from a Cabinet Committee paper that had been prepared about changes at the Ministry of Foreign Affairs and Trade (MFAT). The State Services Commissioner (the Commissioner), concerned that there appeared to have been an unauthorised disclosure of Cabinet papers, appointed the second respondent, Ms Rebstock, to “investigate and report on the relevant facts around a possible unauthorised disclosure” of the papers.
[2] Ms Rebstock has undertaken that investigation and her draft report includes a
statement that she finds that there is a “strong suspicion” that the appellant may have
leaked the Cabinet papers. She disclosed relevant extracts from the draft report to the appellant for comment. The appellant then applied to the High Court for judicial review of the draft conclusions reached by Ms Rebstock. The Attorney-General is sued in respect of the Commissioner under s 14 of the Crown Proceedings Act 1950. So the practical position is that the judicial review application is directed against the Commissioner as appointer of Ms Rebstock and intended recipient of her report and Ms Rebstock herself.
[3] The application for judicial review was given an urgent hearing in the High
Court and was determined by Dobson J in a judgment delivered on 7 May 2013.1
The judgment was initially issued only to counsel, in order to allow for submissions to be received on redactions required to allow for publication of the judgment without compromising suppression orders that had been already granted in the High Court (including an order that the appellant would be identified in all court documents as “A”). It was reissued on 15 May 2013 in redacted form, and that version was released to the public.
[4] The first ground of the appellant’s judicial review application was that the terms of reference for Ms Rebstock’s investigation did not permit her to make a finding of a proper basis for “strong suspicion”. He argued that under the terms of reference she was limited to reporting only on proven facts. Dobson J rejected that ground of review.
[5] The second ground of review was that the finding that there was a proper basis for strong suspicion in the draft report was unsupported by probative evidence. Dobson J rejected this ground also, finding that there was a proper basis of probative evidence on which Ms Rebstock could base that finding.
[6] The third ground of review was that Ms Rebstock had not made adequate disclosure to the appellant of the evidential material on which she had relied in coming to her proposed finding that there was a proper basis for strong suspicion. The appellant argued this meant that the principles of natural justice had not been
complied with. Dobson J held that the level of disclosure made by Ms Rebstock was
1 A v Attorney-General [2013] NZHC 988.
adequate if her final report was made only to the Commissioner and not publicly released.
[7] However, the Judge found that if the report were to be publicly released, then further disclosure would be necessary in order to ensure that the rules of natural justice were complied with.
[8] The formal orders of the Court on the substantive claim were first:2
If Ms Rebstock intended to publish her report to the Commissioner in a form that the Commissioner would be entitled to publish, then that would involve a breach of relevant rules of natural justice because of inadequate disclosure of information relevant to A’s defence of his position.
And second:3
In the event that either or both of the respondents hereafter form the intention to produce a report intended for publication in respect of the parts addressing the position of A, then they are promptly to give A’s legal advisers notice of that intention. Thereafter, the parties will have leave to apply for the definition and argument of additional issues, as they then arise.
[9] The judicial review application was otherwise dismissed. A appeals against the findings set out at [4], [5] and [6] above, while the respondents cross-appeal against the finding set out at [7] above.
Issues for determination
[10] The issues which we are required to address are:
(a) Did the terms of reference establishing the inquiry allow Ms Rebstock to report that there is a basis for strong suspicion that the appellant may have been responsible for the unauthorised disclosure of the Cabinet papers? The alternative proposition suggested by the appellant is that the terms of reference limited Ms Rebstock to
reporting proven facts.
2 At [95].
3 At [90].
(b) Is Ms Rebstock’s proposed finding supported by probative evidence?
(c) Has adequate disclosure been made to the appellant so that the principles of natural justice have been or will be, before the completion of the report, complied with?
[11] Counsel for the appellant, Mr McHerron, told us at the start of the hearing that counsel for the respondents had advised him that the Commissioner intended to publish the report after it was submitted to him by Ms Rebstock. This means that the practical emphasis of the adequacy of disclosure issue referred at [10](c) above is on the respondents’ cross-appeal.
[12] There was no dispute that the extracts from the draft were amenable to judicial review so we do not address that issue.
Factual background
[13] It is not easy to set out a statement of the relevant facts without disclosing information that would be likely to identify the appellant and therefore compromise the suppression order made in the High Court. For that reason, we adopt the summary of facts set out in the High Court judgment and set out in an appendix to this judgment the redacted form of the relevant paragraphs from that judgment. This obviates the need for us to check with counsel as to whether this judgment includes any suppressed information.
Terms of reference: “strong suspicion”
[14] Counsel for the appellant, Mr McHerron, argued in the High Court that Ms Rebstock would be acting outside the terms of reference for the investigation if she included in her final report a finding based on “mere suspicion”. He argued that the finding in the draft report that there was a proper basis for strong suspicion that the appellant may have leaked the Cabinet papers was a finding based on mere suspicion.
[15] Ms Rebstock was appointed by the Commissioner under s 23 of the State Sector Act 1988 (the Act) which empowers the Commissioner to delegate his functions.4 In this case the function that was delegated was the Commissioner’s power to conduct inspections and investigations, which is set out in s 8(2) of the Act. That provision gives the Commissioner power to conduct any investigation that he considers necessary. That power is, however, limited by s 8(1). There was no dispute that the power of investigation was appropriately exercised in this case and that s 23 provided a proper statutory basis for the delegation of that power to
Ms Rebstock. Nor was there any dispute that Ms Rebstock’s powers in relation to the inquiry are framed by her terms of reference and the statutory underpinning of those terms of reference.5
[16] The terms of reference applying to the investigation to be undertaken by Ms Rebstock required her to report “on the relevant facts around a possible unauthorised disclosure” of the Cabinet papers. In full they stated:
Investigate and report on the relevant facts around a possible unauthorised disclosure of three Cabinet papers , titled “Ministry of Foreign Affairs and Trade: Change Programme”, “MFAT: Global Footprint: European Posts”, and “Ministry of Foreign Affairs and Trade: Forecast Financial Position”, as well as information relating to those papers; and
Investigate and report on the relevant background facts surrounding the development of the MFAT change programme culminating in the Cabinet papers referred to above and the environment within which MFAT was operating during this period. This includes, as appropriate, who may have been responsible for earlier unauthorised disclosures during the development of the MFAT change programme.
Make recommendations as to measures, if any that could strengthen information management systems within MFAT (or other agencies relevant to the investigation) to improve secure handling of government information.
[17] Mr McHerron argued that a finding that there was a proper basis for strong suspicion that the appellant leaked the Cabinet papers was outside the scope of this
4 The Commissioner’s principal functions are set out in s 6 of the Act and the Commissioner has
the powers reasonably necessary or expedient to enable those functions to be carried out: s 7.
5 Section 25 provides that the Commissioner has some of the powers of a commission of inquiry in terms of the Commissions of Inquiry Act 1908.
term of reference because, under the terms of reference, Ms Rebstock was required only to report on facts, and facts did not include “conjecture”.
[18] Mr McHerron said that a limitation on Ms Rebstock’s power to reporting on facts was consistent with the express wording of the terms of reference and also fitted with the role and purpose of an inquiry such as that undertaken by Ms Rebstock, which he described as the objective of finding out what happened, but not adjudicating. He said it was clear from the other terms of reference for the inquiry that the objective was to improve the security of the handling of Government information, and that objective could be obtained without blaming an individual for the particular disclosure under investigation. He argued that a limitation on reporting facts was also appropriate in light of the substantial damage to the reputation of the appellant from a finding of strong suspicion that the appellant was the cause of the leak.
[19] In the High Court, Dobson J said that it would be artificial to interpret the terms of reference as limiting Ms Rebstock’s powers to matters that she was satisfied had been established as proven facts.6 There was no logical justification for limiting the investigation in that way, when the Commissioner could not have known at the time of the delegation of his investigatory power what the investigation might uncover. Dobson J rejected an argument made on the appellant’s behalf that
“suspicions” are a discrete category of potential conclusion that requires separate
authorisation in the terms of reference.
[20] The High Court Judge also considered it significant that the terms of reference required Ms Rebstock to report not only on the relevant facts around the possible disclosure of the three Cabinet papers, but also “information relating to those papers”.7 The Judge considered that, to the extent that Ms Rebstock could not establish as matters of proven fact how disclosures had occurred, the report could properly include the outcome of her investigation undertaken towards that end. Mr McHerron argued that the Judge had misinterpreted the reference to “information
relating to those papers”. It was not part of the description of what Ms Rebstock
6 At [35].
7 At [36].
could investigate and report on, but part of the description of what had been subject to an unauthorised disclosure. We accept that submission. The question is, therefore, whether Ms Rebstock’s report on the existence of a basis for strong suspicion was outside the terms of reference requiring her to report on relevant facts around the disclosure.
[21] Mr McHerron argued that there was nothing in the requirement to report on the relevant facts that required identification of the person responsible for the leak, and that it was not open to Ms Rebstock to report findings that were not matters capable of factual proof. Her jurisdiction could not extend beyond matters that were established as a matter of fact. If she went beyond this she would be acting outside the mandate provided to her in the Commissioner’s letter of delegation.
[22] Mr McHerron referred us to the report of Sir William Gage, (recently retired Lord Justice of Appeal in England and Wales) in relation to the Baha Mousa inquiry, a public inquiry into the death of Mr Mousa while in the custody of British soldiers in Iraq in 2003.8 Sir William addressed a question as to whether he was entitled to make comments expressing a suspicion that allegations were true. He found that he could, but that a comment relating to suspicion should be made only “sparingly” and that the circumstances in which he felt constrained to do so would be comparatively rare.
[23] Mr McHerron argued that the terms of reference in the present case were narrower than those applying to the Baha Mousa inquiry, which included references to “anything else that the panel considers to be relevant”9 and “circumstances surrounding the death of Baha Mousa and the treatment of those detained with him”.
[24] The High Court Judge rejected the submission that the difference between the terms of reference for the Baha Mousa inquiry and those applying to the present inquiry required a different approach to the task. We agree with his analysis and
adopt his reasoning.
8 William Gage “Ruling on the Standard of Proof” for Report of the Baha Mousa Public Inquiry, (7 May 2010).
9 The discretion to consider matters beyond the terms of reference is conferred by s 24(1) of the
Inquiries Act 2005 (UK).
[25] Mr McHerron placed great emphasis on the fact that, in the relevant paragraph from her draft report, Ms Rebstock states “the investigation does not believe it can conclude as a matter of proven fact that [the appellant] was responsible for the leak of the papers”. He says this indicates that the statement that there is a proper basis for strong suspicion is a matter of conjecture, not a conclusion based on fact.
[26] For reasons we will come to later, we disagree with that contention.
[27] The appellant provided us with a copy of a report on another leak of confidential Government information, the Henry report into the leak of the Kitteridge report.10 He argued that the Henry report had similar terms of reference, which emphasised on fact. Further, in that report Mr Henry had obtained more probative evidence than Ms Rebstock had but that, despite that, he concluded his report by saying “I cannot take this matter any further” rather than by reporting a suspicion.11
[28] We do not see this comparison as useful. The fact that Mr Henry proceeded in a particular manner does not impose any obligation on Ms Rebstock to do the same. In the Henry report, the decision to take the matter no further was because the only person who had access to the relevant leaked report who had not been able to be eliminated from the inquiry refused further cooperation with the investigator. That is not the situation that Ms Rebstock faces.
[29] We do not see the reference in the terms of reference to the requirement to report on “relevant facts around a possible unauthorised disclosure” as preventing Ms Rebstock from reporting to the Commissioner that, on the basis of the facts that she has established to her satisfaction, there is a proper basis for a strong suspicion that the appellant may have leaked the papers. We do not see that as being a matter of conjecture, but rather a conclusion reached by Ms Rebstock as a deduction from
the proven facts she has established as a result of her investigation.
10 David Henry Inquiry into the Unauthorised Release of Information Relating to the GCSB Compliance Review Report: The Leak of the Kitteridge Report (5 June 2013).
11 At [82] and [85].
[30] The fact that Ms Rebstock was not able to make a finding that the appellant was responsible for the leak as a matter of proven fact does not mean that her finding that there is a strong suspicion that the appellant was responsible for the leak is not based on facts. Just as she may report on black and white conclusions, so may she report on conclusions that are in varying shades of grey.
[31] This ground of appeal fails.
Was there probative evidence supporting the finding of “strong suspicion”?
[32] Mr McHerron argued that there was no probative evidence of unauthorised disclosure, and therefore the draft report is unreasonable. He relied on the well known principle set out in Re Erebus Royal Commission; Air New Zealand Ltd v Mahon:12
The rules of natural justice that are germane to this appeal can, in their Lordships’ view, be reduced to those two that were referred to by the Court of Appeal of England in R v Deputy Industrial Industries Commissioner, ex parte Moore [1965] 1 QB 456 at pp 488, 490, which was dealing with the exercise of an investigative jurisdiction ... The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below.
...
... What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictatory.
(Emphasis in original)
[33] In the extract from R v Deputy Industrial Industries Commissioner ex parte Moore cited by the Privy Council, Diplock LJ referred to the need for a decision to be based “upon material which tends logically to show the existence on nonexistence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event, the occurrence of which would
be relevant”.13
12 Re Erebus Royal Commission; Air New Zealand Ltd v Mahon [1983] NZLR 662 (PC) at 671.
13 R v Deputy Industrial Industries Commissioner, ex parte Moore [1965] 1 QB 456 (CA) at 488.
[34] Mr McHerron said the issue in the present case was not whether there was probative evidence to support the finding of the strong suspicion because that would be an oxymoron. Rather, he said the issue is whether there was probative evidence of unauthorised disclosure by the appellant. He argued that Ms Rebstock had acknowledged there was none by reference to the following from her report:
(a) Ms Rebstock distinguished between “evidence which merely raises
suspicion and that which is sufficient to amount to proof”; and
(b)Ms Rebstock’s draft makes the statement: “... the investigation does not believe it can conclude as a matter of proven fact that [the appellant] was responsible for the leak of the papers.”
[35] Mr McHerron’s submission was, during oral argument, amplified to the extent that he argued that, unless there was evidence of an actual handover of the leaked papers by the appellant to an unauthorised recipient or of the transmission of the papers by email or similar medium to such recipient, then there was no evidence of disclosure.
[36] We disagree. The case against the appellant is based on circumstantial evidence which, considered in the aggregate, provides a solid foundation for the conclusion of the investigation. To say that this is not probative evidence of disclosure is to misunderstand the nature of the circumstantial evidence. To say that Ms Rebstock acknowledged there was no probative evidence is to misinterpret the statements from her report referred to above, neither of which support Mr McHerron’s submission.
[37] The High Court Judge declined this ground of review. He found that Ms Rebstock’s investigation identified a sequence of factors that pointed to the possibility of the appellant leaking the papers. That sequence of factors could not be dismissed as an inadequate foundation for Ms Rebstock to question the reliability of the appellant’s answers to her. The Judge emphasised that a finding of unreasonableness is not available if the decision-maker adopted one of a number of options that were more or less equally open to her.
[38] The Judge undertook a detailed examination of the evidence in coming to his conclusion, and we endorse his evaluation of the evidence.
[39] Mr McHerron cited in support of his argument the recent decision of the Chief High Court Judge in Carroll v Coroner’s Court at Auckland.14 Dobson J saw Carroll as unhelpful given the obvious differences in the factual background.15
Mr McHerron criticised this because, he said, Carroll served as a useful analogy. We disagree. In Carroll, the Chief Judge found that there was a gap in the evidentiary foundation for the factual finding that was in issue.16 In our view, Carroll deals with a factual situation that has little similarity to the present case and does not assist the present analysis.
[40] Mr McHerron relied on the distinction drawn between the weight to be given to evidence and the making of a finding without any evidence, as set out in the decision of this Court in Discount Brands Ltd v Northcote Mainstreet Inc:17
It is entirely one thing to weigh evidence which might go either way: or even to incorrectly evaluate evidence. But it is quite another to make entirely insupportable findings. To find facts without evidence of this character is an abuse of power, and as such it ought to be within the scope of judicial review.
[41] The problem for Mr McHerron’s argument is that we do not accept that Ms Rebstock was making a finding that was “without evidence”. Rather, she weighed the evidence before her and reached a conclusion that was logically available to her. How she weighed the evidence before her was, as the extract cited from Discount Brands confirms, a matter for her.
[42] We have carefully reviewed the evidence that was before Ms Rebstock. We are satisfied that her conclusion is appropriately based on probative evidence. Counsel for the respondents helpfully provided us with a summary of the factual
findings on which the finding of a proper basis for strong suspicion is based. There
14 Carroll v Coroner’s Court at Auckland [2013] NZHC 906.
15 At [56]–[60].
16 At [28].
17 Discount Brands Ltd v Northcote Mainstreet Inc [2004] 3 NZLR 619 (CA) at [58] (overturned on appeal, but not affecting this comment, in Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
are 17 matters of fact stated in this summary, all but one of which is a factual matter that is capable of verification. Mr McHerron accepted this, as he had to do. The only matter which was a matter of impression was Ms Rebstock’s impression of the appellant’s demeanour during the two interviews she had with him. The 16 matters provide a proper factual basis for Ms Rebstock’s conclusion that there is a proper basis for strong suspicion. If anything, that is a relatively benign finding.
[43] This ground of appeal therefore fails on the facts.
[44] It should be noted that the draft report that is the subject of the application for judicial review is a draft that was prepared some time ago. It does not take into account a submission received from Mr McHerron on the appellant’s behalf after extracts of the report were disclosed to the appellant for comment, nor does it take into account a statutory declaration made by the appellant denying responsibility for the leak. It can be expected that both of these matters will be considered by Ms Rebstock before she completes her report for submission to the Commissioner. Ms Jagose confirmed that that was Ms Rebstock’s intention.
Natural justice: has adequate disclosure been made to the appellant?
[45] In the High Court, Dobson J found that the disclosure made by Ms Rebstock to the appellant was adequate to meet the requirements of natural justice if the report submitted by Ms Rebstock to the Commissioner was not published. On the other hand, he found that, if the report was to be published, then further disclosure was required. The appellant appeals against the first of those findings and the respondents cross-appeal against the second.
[46] As the Commissioner has now indicated that he intends to publish the report to be provided to him by Ms Rebstock, the Judge’s finding as to the adequacy of disclosure for a report that is not to be published has become effectively moot.18 We will therefore focus our attention on the adequacy of disclosure in relation to a report that is to be published, that is the respondents’ cross-appeal.
What disclosure has been made?
[47] Ms Rebstock and her advisors have sought to address the requirements of natural justice in relation to the appellant as follows:
(a) On 20 December 2012, after the second interview with the appellant, an advisor to Ms Rebstock wrote a five page letter to the appellant, enclosing transcripts of the two interviews for his verification and outlining the tentative view that Ms Rebstock had reached on the evidence she had obtained up to that point. In that letter, the appellant was advised that Ms Rebstock “has reason to believe that on the balance of probabilities it is more likely than not that you were the person who disclosed Cabinet Committee papers about MFAT in May 2012 to Mr Goff either directly or indirectly”. This tentative conclusion was followed by an outline of the facts on which Ms Rebstock had formed the initial finding, which comprised
19 points. The appellant was advised to consider getting appropriate support and advice including legal advice when preparing his response. He was asked to respond by 25 January 2013.
(b)After receiving a detailed response from Mr McHerron on behalf of the appellant (a letter dated 1 February 2013), there was further correspondence between Ms Rebstock’s advisors and Mr McHerron. Then, on 26 March 2013, one of Ms Rebstock’s advisors sent a letter to Mr McHerron. That letter set out extracts from the draft report containing the findings relating to the appellant, the evidence relied on and findings made on the basis of that evidence. As noted earlier, the conclusion in this draft of the report was “there is a proper basis for strong suspicion” that the appellant may have been responsible for the leak. This was a modification of the initial view that had been outlined in the letter of 20 December 2012.
[48] The position of the respondents is that this disclosure sufficiently met the requirements of natural justice.
What additional disclosure is sought?
[49] The appellant seeks disclosure of additional material, and has done so
consistently in his lawyer’s correspondence with Ms Rebstock and her advisors.
[50] In the High Court, Dobson J considered that, if the report were to be published, the appellant would be entitled to further disclosure. He gave three examples of what further material should be disclosed.19
[51] The first example was the source information from the photocopier/scanner said to have been used by the appellant on the morning of 1 May 2012. The letter of
20 December 2012 had given considerable detail about the use to which that photocopier/scanner had been put by the appellant. It said that documents of exactly the same number of pages as the relevant Cabinet papers had been photocopied by the appellant and also scanned by him, but that the scanned document had not been entered in the document management system of the organisation involved.
[52] The second example was the evidence the investigation had obtained from which it was said to be apparent that Mr Goff was in possession of a scanned copy of one of the papers and a copy of the other. Dobson J noted that, since this evidence was first requested, the form of the reference to the evidence had evolved (between the 20 December 2012 letter and the extracts from the draft report provided for comment), but he considered that the evidence that has been relied on would still be relevant to a “fully contested defence of A’s position”.
[53] In fact, in the draft report provided for comment on 26 March 2013, the following statement appears:
A forensic examiner was unable to confirm whether the paper shown on television footage in the Labour Spokesperson on Foreign Affairs and Trade’s Office was a photocopy or a scan. The pages appear to have larger margins than in the original documents. The forensic examiner did confirm that it was unlikely to be a photo print because of the technical difficulty in obtaining an undistorted image, such as seen on the TV footage.
In other words, the forensic report has not really advanced the inquiry and does not provide any evidence against the appellant (or, for that matter, supporting his denial).
[54] The third example was a copy of the confidentiality and compliance deed that the draft report cites from, and says that the appellant signed. In fact, this document has (belatedly) been provided to the appellant so we do not need to say any more about it.
[55] It is notable that these matters were considered by the High Court Judge to be examples only, and he specifically contemplated the possibility that further information of the same type might need to be supplied also in the event that the report was to be published.20
[56] The positions of the parties on this aspect of the case have become unnecessarily polarised. The confidentiality agreement referred to at [54] above exemplifies this. On the one hand, it is hard to see what possible impact it could have on the natural justice requirements relating to the report. The appellant was not contending that he leaked the documents but that he was entitled to do so, rather he was contending that he had not leaked them. He did not, and could not, dispute that he was under an obligation of confidentiality. So it was hard to see why he was so insistent on receiving this document. On the other hand it was a document that the appellant had signed, and something that he was clearly entitled to because it was personal information about him. He was probably entitled to it under the Privacy Act 1993, as Ms Jagose acknowledged. It was hard to see why the appellant was so insistent on receiving it, but it was equally hard to see why the respondents were so insistent on withholding it.
[57] In order to bring some structure to this part of the argument, we asked counsel to identify what items the appellant said should be disclosed and which of those the respondents were prepared to disclose. Counsel filed a joint memorandum after the hearing and in that memorandum the position was summarised as follows:
2.The information was referred to in the High Court as “the source information from the photocopier/scanner” and evidence from a
“forensic examiner as to the nature ... of the documents purportedly in Mr Goff’s possession”: [83], High Court judgment. In addition, in the High Court the appellant sought additional forensic information relied on by Ms Rebstock in her draft report (the report from NZ Forensics and the listing of emails described at paragraphs
3.3 and 3.4 below). This material was not specifically referred to by his Honour Justice Dobson in his judgment, but it remains material
that the appellant seeks.
3.The information the appellant claims he is entitled to, as part of the natural justice content of the investigation, has been specifically identified as follows:
3.1The log of the printer nearest to the appellant as he worked [...] on 1 May, showing that he scanned 10 pp, copied 28 pp and scanned 18 pp of documents.
3.2A report from Security Risk Management Ltd analysing the TV images of the documents Mr Goff was holding in the House and his office;
3.3A report by NZ Forensics examining two hard drives used by the appellant and being unable to identify the two scans;
3.4A listing of emails (detailing time and date/who the email was to or from/title of email and size, but not showing content) to and from the appellant while at [the organisation he was working for] from March to the end of his contract.
4.For completeness, the parties record that the additional information sought, the “contract for services” referred to in paragraph 2, p 5 of the Draft Report, and the schedule to the contract with the signed Confidentiality and Compliance Deed was provided on 17 June
2013.
5.The respondents have considered the appellant’s request. They remain of the view expressed in their cross appeal that the appellant is not entitled to this material, as part of the investigation’s natural justice process. In the context of administrative inquiries, the respondents submit that expanding the natural justice right to all source data relied on (where, as it is submitted is the case here, the material is adequately summarised and explained to the appellant in the draft report) should be avoided, even on a one-off basis.
6.However, the material listed above at paragraph 3.4 is information the appellant is entitled to see in any event, and the respondents will provide that information to the appellant.
What is the entitlement?
[58] There is no dispute that the objective of the requirements of natural justice is to ensure a fair process, and one which provides the person against whom an allegation is made an adequate opportunity to respond to it.
[59] This was described in Re Erebus Royal Commission; Air New Zealand v
Mahon in these terms:21
The second rule [of natural justice] requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision maker, might have deterred him from making the finding even though it cannot be predicated that it would inevitably have had that result.
(Emphasis in original.)
[60] In Daganayasi v Minister of Immigration, this Court said that, in order to comply with natural justice, “reports of the appointed referee, or at least the substance of any prejudicial contents, should be disclosed to the appellant or a representative of the appellant before any adverse decision is made” and “the appellant should have a fair opportunity of correcting or contradicting any relevant statement prejudicial to his or her view”.22
[61] There was no real dispute that the requirements of natural justice vary from case to case, depending on the nature of the inquiry being conducted and the seriousness of the allegations. In the present case the allegations are serious and the appellant is entitled to have clear information about the evidence on which Ms Rebstock is basing her proposed finding of a proper basis for strong suspicion that the appellant leaked the papers.
The appellant’s disclosure requests
[62] Against the background of the legal test and having regard to the disclosure already made by Ms Rebstock and/or her advisors, we now turn to consider the remaining requests for further disclosure, being those set out in paragraphs 3.1–3.3 of the joint memorandum of counsel, quoted at [57] above.
[63] The first of these, set out at paragraph 3.1 of the joint memorandum of counsel is the logbook of the printer (also photocopier and scanner) nearest to the
appellant, showing that the appellant scanned 10 pages, then copied 28 pages, then
21 Re Erebus Royal Commission, above n 12, at 671.
22 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 143.
scanned a further 18 pages. The High Court Judge considered that this would need to be disclosed if the report was to be made public, given the more serious consequences for the appellant in the event that the report was a public document.
[64] The information provided about the copying and scanning of the documents in the letter of 20 December 2012 is extensive and detailed, with precise times of when the appellant logged receipt of the Cabinet papers and when the copying and scanning occurred. Details of how the photocopiers in the organisation involved work and how scanned information is saved into the document management system is provided. It is recorded that it is not possible to establish if the scans made by the appellant were attached to an email sent by the appellant on 1 and 2 May. The same information appears in the draft report provided to the appellant for comment on
26 March 2013.
[65] We consider that this information provides a proper basis for the appellant to know the case against him and respond to it. Mr McHerron said that he needed the source data so that he can check and correct it. We do not see that as a necessary component of the obligation to meet the principles of natural justice: what is required is that the appellant be told of the evidence against him so that he can respond, not so that he can second guess the investigation.
[66] On the other hand, as we pointed out to Ms Jagose at the hearing, it is hard to see why the respondents take such an uncompromising position in relation to this data, given that it is apparently uncontentious. We were not given any indication that there were any confidentiality or similar concerns about providing the data. In those circumstances it is surprising that the matter has had to be dealt with in this Court. Having said that, we do not consider that a failure to provide this data amounts to a failure to meet the principles of natural justice and we are satisfied that the disclosure that has already been made suffices for that purpose.
[67] The item set out in paragraph 3.2 of the joint memorandum is a report from Security Risk Management Ltd analysing the TV images of the documents Mr Goff was holding in the House and in his office. The tentative conclusion relating to that report in the extract from the draft report disclosed to the appellant on
26 March 2013 is set out at [52] above. In short, it says that the forensic report does not advance the inquiry. In those circumstances there is nothing for the appellant to answer in relation to the forensic report and no proper basis for requiring its disclosure.
[68] The third item (paragraph 3.3 of the joint memorandum of counsel) is a report by NZ Forensics examining two hard drives used by the appellant and being unable to identify the two scans. Again, there is nothing in this material that requires any answer from the appellant and no proper basis to order its disclosure. The appellant’s case for disclosure of this seems to be in the nature of a fishing expedition: he might find something which advances his case. We do not consider that the natural justice obligation extends to indulging such requests.
[69] We conclude, therefore, that the disclosure that is now being made is sufficient to meet the natural justice obligation which Ms Rebstock has, and that the Judge was in error in directing further disclosure in the event that the report is to be published.
[70] We therefore allow the respondents’ cross-appeal.
Suppression
[71] In the High Court, the Judge made the following orders to protect the identity of the appellant:
No person other than the parties to the proceeding or their counsel may have access to any documents on the Court file without the permission of a Judge.
An order is made prohibiting publication of the name or particulars likely to lead to the identification of the applicant, including where he worked at the time, and had previously worked, until further order of this Court or the Court of Appeal.
[72] There was no dispute that these measures to protect the identity of the appellant should continue in force in the meantime. In order to do this, we make a similar order to restrict access to the file of this Court as well of that of the High Court, and we confirm the continuation of the High Court order prohibiting publication of the appellant’s name or particulars likely to lead to his identification.
During the course of the hearing there was discussion with counsel as to whether media representatives should be able to report the nature of the appellant’s employment and it was agreed that reporting that the appellant was a “clerical assistant” would be consistent with the suppression order (that is, it was accepted that it was not particularly likely to lead to his identification, in the absence of further information which remains suppressed).
[73] Ms Jagose raised with us the possibility that there would need to be a change to the suppression orders in the event of the publication of the report of Ms Rebstock, when it is finalised. In our view, that is a matter that should be addressed in the High Court if and when it is necessary to do so. The order we have made relating to the restriction on access to this Court’s file will continue in force until such time as it is altered by an order of this Court or the High Court. We would envisage the High Court making such an order only if the order prohibiting access to the High Court’s file was changed or rescinded at the same time.
[74] We confirm that publication of this judgment will not breach the suppression orders referred to above.
Result
[75] We dismiss the appeal and allow the cross-appeal. We are satisfied that in light of our conclusions the substantive orders of the High Court set out at [8] above should be set aside. We make an order to that effect.
Costs
[76] Although the appellant sought costs in the event that he was successful, the respondents did not seek costs in this Court and we therefore make no order for costs.
Solicitors:
Lee Salmon Long, Auckland for Appellant
Crown Law Office, Wellington for Respondent
APPENDIX
Redacted summary of facts from High Court judgment
The factual context
[6] In early May 2012, the Labour Party spokesman for foreign affairs, the Hon Phil Goff, asked a question in Parliament which appeared to derive from his having possession of two Cabinet papers that had been prepared about changes at MFAT. On the basis that there appeared to have been unauthorised disclosure of the Cabinet papers to Mr Goff, the Commissioner decided to conduct an investigation under s 8 of the [State Sector Act 1988 (the Act)] into the possible unauthorised disclosure of the two Cabinet papers in question, and one produced shortly after those two.
[7] On 4 May 2012, the Commissioner appointed Ms Rebstock under s 25 [sic: 23] of the Act to conduct the investigation and report her findings to him. In his letter of appointment, the Commissioner advised the terms of reference for the investigation as follows:
Investigate and report on the relevant facts around a possible unauthorised disclosure of three Cabinet papers, titled “Ministry of Foreign Affairs and Trade: Change Programme”, “MFAT: Global Footprint: European Posts”, and “Ministry of Foreign Affairs and Trade: Forecast Financial Position”, as well as information relating to those papers; and
Make recommendations as to measures, if any, that could strengthen information management systems within MFAT (or other agencies relevant to the investigation) to improve secure handling of government information and deter unauthorised disclosure.
[8] The Commissioner’s letter appointed Ms Rebstock “… to conduct the investigation in a fair, thorough and prompt manner and to report your findings and recommendations to me”. The Commissioner authorised Ms Rebstock to exercise his powers under ss 7, 9, 10 and 26 of the Act for the purpose of undertaking the investigation and reporting to him.
[9] On 23 May 2012, the Commissioner wrote again to Ms Rebstock indicating that he had intended the original terms of reference to encompass a broad
investigation into the background facts surrounding the development of the MFAT change programme and the environment within which MFAT was operating, including who may have been responsible for earlier unauthorised disclosures leading up to the unauthorised disclosure of the three Cabinet papers. For the avoidance of doubt, the Commissioner added a third term of reference relating to those earlier matters.
[10] The Prime Minister had, on the same day as the Commissioner directed Ms Rebstock to undertake the investigation, publicly commented that he would not be launching an inquiry over the leaked Cabinet papers. Mr McHerron treated this as relevant to the context in which the investigation was undertaken. The Prime Minister was attributed with saying:
… the sad fact of life is you virtually never find who’s responsible.
[11] [12]
[13] In August 2012, Ms Rebstock made contact with A, requesting an interview. With her written request, Ms Rebstock enclosed an “information sheet” which set out the terms of delegation from the Commissioner under s 8 of the Act, and the delegation to her of powers and functions under ss 7, 9, 10, 25 and 26 of the Act. She advised that she had the same powers and authority to summon witnesses and receive evidence as are conferred upon commissions of inquiry by the Commissions of Inquiry Act 1908, and that those powers included the power to summons witnesses. She advised that evidence could be given on oath, which she would administer. The information sheet specified that Ms Rebstock would have all evidence taped and that witnesses may have a support person or lawyer of their choice present when giving their evidence. She confirmed that she would comply with the principles of natural justice and in particular would not make adverse findings without first giving the affected person the opportunity to comment on any draft and provisional adverse findings.
[14]
[15] After Ms Rebstock’s first interview with A, Ms Rebstock had data retrieved from the machine that A would have used in copying documents at [ ]. Those records showed that shortly after 9 am on 1 May 2012, A photocopied 28 pages and scanned two items comprising 10 and 18 pages. The records apparently showed that the scanned documents had been sent to A’s internal [ ] email address. The first two of the three Cabinet papers that were the subject of the investigation were 10 and 18 pages respectively.
[16] Ms Rebstock, again with the assistance of Ms Hansen, conducted a second interview with A by Skype on 17 October 2012. Without first disclosing to A what had been gleaned from the records of the machine that A had used, Ms Rebstock asked what A’s practice had been in scanning documents when working at [ ]. A answered that he would not generally scan documents and that scanning did not generally occur with Cabinet papers. He qualified that by saying there were some occasions when Cabinet papers would be scanned, but not often. Ms Rebstock then revealed what the record on the machine showed, and asked A if he had scanned documents, whether they would appear in the document management system maintained at [ ]. He agreed that generally scanning would be for the purposes of entering them into that system and A could not think of other reasons for scanning documents.
[17] A could not recall exactly what he was doing on 1 May 2012, and did not recall scanning the Cabinet papers in question. A did not know why he would have scanned those papers and said that if he scanned anything, it would probably just have been deleted if it was not necessary. A said that scanned documents would usually go into his inbox and he guessed that it would have been deleted in his inbox. He did not recall deleting the documents scanned on that morning from his emails. Nor did he recall either forwarding the scanned document to anyone else or making a copy of it.
[18] Ms Rebstock observed that A was having difficulty providing an answer as to why he would have scanned what apparently were Cabinet papers and A’s repeated response was that he could not recall it. A said he did not really know much about any rules around scanning Cabinet papers but suspected that it was probably not
okay to scan such papers. He said he would have been rushing around doing all sorts of stuff so he could not recall what had occurred. He then answered that he did not recall whether he had scanned the Cabinet papers to provide them to someone who was not authorised to receive them, and that he did not know whether he would give Cabinet papers to someone who was not authorised to receive them, adding that that was “kind of speculation”.
[19] After that interview, Ms Hansen posed a sequence of questions in relation to the scanning recorded by the machine that appeared to have been of the documents in question. A’s response was that he believed he had answered the questions as best he could recall, and that he had nothing further to add.
[20] On 20 December 2012, a performance review manager at the State Services Commission wrote to A as a “part of the natural justice process for the MFAT investigation”. The letter advised that Ms Rebstock had reason to believe that on the balance of probabilities, it was more likely than not that A was the person who disclosed Cabinet papers about MFAT to Mr Goff, either directly or indirectly. The letter set out 19 points on which Ms Rebstock had relied in making her initial findings. The letter treated them as “the facts” on which Ms Rebstock had relied. Numerous of the points were matters of inference, or matters of opinion Ms Rebstock had come to, such as finding some of A’s answers in the second interview to be unsatisfactory, and Ms Rebstock’s assessment that she did not find A to be a credible witness.
[21] Mr McHerron responded to the 20 December 2012 letter by letter dated
1 February 2013. Mr McHerron’s letter provided specific responses to the matters that the 20 December letter had reported Ms Rebstock as having taken into account. [ ] Mr McHerron also challenged Ms Rebstock’s criticisms of A for “unsatisfactory”, “vague” and “equivocal” responses during the interviews. Mr McHerron criticised the compound formulation of a number of Ms Rebstock’s questions, and unreasonable inferences drawn from answers that Mr McHerron argued were given quite reasonably by A when his basic position was that he did not recall scanning the documents.
[22] Mr McHerron requested seven items of further information, including the source information on which Ms Rebstock relied to say that the Cabinet papers were copied and scanned by A at the time alleged, any evidence linking the papers received by A with the papers allegedly possessed by Mr Goff, and the results of “forensic work” that Ms Rebstock had referred to in her questioning during the second interview.
[23] The requests for further information were declined in a letter to Mr McHerron dated 8 February 2013. Solicitors for A repeated the request in a letter of 11 February 2013 but that was also declined.
[24] On 26 March 2013, the performance review manager at the State Services Commission provided Mr McHerron with extracts from Ms Rebstock’s draft report that related to A. Comments on the draft were invited, to be submitted by
8 April 2013.
[25] On the possible identity of who provided unauthorised disclosure of the Cabinet papers, the executive summary from the relevant part of the draft report included the following:
IX. … The investigation needed to bear in mind the distinction between evidence which merely raises suspicion and that which is sufficient to amount to proof. Recognition of that distinction and what the evidence establishes requires the investigation to apply a level of proof commensurate with the seriousness of the primary issue into which the investigation has to inquire and report.
X. Approaching the matter in that way the investigation has concluded that on the evidence outlined there is a proper basis for strong suspicion this person may have been responsible for the leak of a copy of the Change Programme and Europe Posts Cabinet Committee papers to someone, not necessarily the Labour Spokesperson on Foreign Affairs and Trade, who may have passed them on to him. However applying the level of proof referred to in the preceding paragraph the investigation does not believe it can conclude as a matter of proven fact that this person was responsible for the leak of the papers. As indicated the evidence takes the investigation no further than a point of “strong suspicion”.
[26] The extract of the draft report provided to A’s advisers reflected an updated and altered analysis from the 19 points that were set out in the 20 December 2012 letter. [ ] The draft report recites what the records of the machine used by A show.
From 9.02 am on 1 May 2012, A scanned a document of 10 pages, photocopied
28 pages and scanned a document of 18 pages sequentially within a three minute period. The draft then notes that the two papers in question were respectively 10 and
18 pages long. The draft observes that there were no other photocopies taken of documents of the right size by A or other staff who might have had access to the Cabinet papers on that morning and [ ] had the two papers in [ ] possession by late morning on 1 May 2012.
[27] The draft also reports that A’s email inbox was permanently deleted after he left [ ], and that [ ] could not find a match in electronically stored documents for those (ie of 10 and 18 pages) that had been scanned by A shortly after 9 am on
1 May 2012. Nor could the electronic records establish if the scans had been attached to an email sent by A on 1 or 2 May 2012.
[28] The draft report quotes a passage of questions and answers during the second interview Ms Rebstock conducted with A, acknowledging “concerns about the uncertainty and apparent equivocation in the answers”. The draft report acknowledged receiving a firm rejection of responsibility for unauthorised disclosure from A’s legal representatives, but observed that contrasted sharply with the “uncertain and equivocatory nature” of A’s answers during interviews. The draft distinguishes the rejection of responsibility for disclosure to Mr Goff, from a disclaimer in wider terms of responsibility for unauthorised disclosure to any third party. The draft report states that Ms Rebstock was left “deeply concerned as to whether the evidence showed that A may have been responsible for disclosure …”. That was followed with the comment:
However, … the investigation concluded it could not find as a matter of
proven fact that A was the person responsible for the leak of the papers.
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