A v Minister of Internal Affairs
[2018] NZHC 2890
•7 November 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-000032 [2018] NZHC 2890
UNDER the Judicature Amendment Act 1972 and
Part 30 of the High Court Rules
IN THE MATTER OF
an application for judicial review of the suspension and cancellation of a passport
BETWEEN
A Applicant
AND
MINISTER OF INTERNAL AFFAIRS Respondent
Hearing: 26 October 2018 Appearances:
The applicant in person (by telephone)
AL Martin and GM Taylor for Respondent
BJR Keith, Special AdvocateJudgment:
7 November 2018
RESERVED JUDGMENT OF DOBSON J
[1] The majority of Court-related activity in this proceeding in recent months has necessarily been conducted in closed court, requiring directions and decisions by me to be reflected in closed court minutes and judgments.
[2] On 19 September 2018, after numerous exchanges involving closed court hearings and the filing of memoranda, I directed that a summary of the classified security information (CSI) in a form that I had approved was to be served on the
applicant and the special advocate.1 In the course of exchanges with Crown counsel
1 The procedure is provided for in s 29AB(2) of the Passports Act 1992.
A v MINISTER OF INTERNAL AFFAIRS [2018] NZHC 2890 [7 November 2018]
and the special advocate about the unclassified summary, I had also approved the special advocate’s proposal to convey to the applicant his assessment of matters of potential relevance that, on his view, had been entirely omitted from the recommendation made to the Minister on which the decision to cancel the applicant’s passport was made. The special advocate prepared such a document and, after vetting by Crown Law to be satisfied it did not make reference to CSI, that has also been provided to the applicant.
[3] Since those steps, the applicant has filed a memorandum dated 24 October
2018. That memorandum complains of inadequacies in the unclassified summary, which the applicant treats as fundamentally insufficient, both in form and content. The applicant sought a direction that Crown Law provide a paragraph by paragraph summary of the briefing paper that had been presented to the Minister. The applicant’s memorandum also sought directions as to an appropriate form by which she could seek clarification of matters referred to in the unclassified summary. In addition, the applicant requested a direction that Crown Law respond to Mr Keith’s statement of omissions from the recommendation to the Minister.
[4] The applicant also supported initiatives being taken by the special advocate to expedite further discovery by the respondent that I have directed should occur. (I address that matter at [28] to [35] below.) The applicant also supported Mr Keith’s initiative to seek cross-examination of the NZSIS deponent as an aspect of challenging the certificate as to CSI status of the documents involved.
[5] The special advocate has pursued initiatives intended to assist the applicant by procuring disclosure to the applicant of more of the detail of information held about her. The requisite certificate under s 29AA(5)(c) of the Passports Act 1992 (the Act) was completed by the Director-General of NZSIS in February 2018. The special advocate challenged its validity and sought an order that it be set aside. The essence of the grounds for that application is that it is inadequately justified on the facts and has been completed on a basis that reveals an error of law as to the considerations that need to be taken into account before the certificate as to CSI status of documents could be so certified.
[6] To advance the first of those grounds, Mr Keith sought leave to cross-examine the officer from NZSIS. That officer has now completed three affidavits addressing the grounds for requisite belief by the Director-General that the documents involved are indeed CSI.
[7] In addition, Mr Keith sought further directions as to how the respondent is to comply with my direction to provide further discovery. Mr Keith complained of a lack of progress and inadequacy in the form in which Crown Law is proposing to provide further discovery of a category of documents I had earlier identified as having potential relevance.
[8] On 26 October 2018, I convened both closed and open court hearings. In the closed court hearing, I heard argument on Mr Keith’s application for leave to cross- examine the NZSIS deponent, as well as incomplete submissions on how the further discovery on behalf of the respondent ought properly to occur.
[9] In the open court hearing, I heard from the applicant, attending by telephone from overseas, on her criticisms of the perceived inadequacy of the unclassified summary. She complained that it is entirely inadequate to enable her to prepare a challenge to the grounds relied on by the decision maker. She was also critical of the extent to which discovered documents that are not withheld entirely as CSI have been provided to her in redacted form to an extent that deprives the disclosed content of any meaningful sense. The applicant pressed for directions to help her preparation on the matters I have described above.
[10] Against the contingency that further time was required, either for cross- examination of the NZSIS deponent or for other developments in the case, arrangements had been made for a further closed court hearing on 30 October 2018. Shortly after completion of the 26 October 2018 hearing, I issued a closed court interlocutory judgment confirming that I would grant leave for cross-examination of the NZSIS deponent, and outlining my reasons for doing so. The following paragraphs [11] to [19] reproduce my reasons from that closed court judgment, edited only in minor respects to remove any possible references to CSI.
[11] Mr Keith’s application characterised the evidence from the NZSIS as lacking candour. In oral submissions, he was at pains to emphasise that this was not intended to infer any lack of good faith. Rather, the responses to challenges about claims to sensitivity of the techniques deployed in gathering information about the applicant were so patently inadequate as to lead to either the requirement for further explanation or exposing the respondent to the less satisfactory option of having adverse inferences drawn against the stance described in the evidence.
[12] The respondent opposed the application for leave to cross-examine, citing initially the reluctance the courts generally have to allow cross-examination of deponents in a judicial review. Mr Martin cited Wild J’s decision in Edwards v Toime where the extent of reluctance to allow cross-examination was qualified.2 The judgment acknowledged the then recent edition of Wade’s Administrative Law on the occurrence of disputed questions of fact arising in judicial review, where the learned authors observed:3
The correct rule, it is submitted, is that stated by Lord Diplock … that cross- examination should now be allowed whenever the justice of the case so requires, and on the same basis as in ordinary proceedings.
[13] Applications for leave to cross-examine generally arise where an applicant wishes to challenge affidavit evidence on the course of preparation of, or reasons for, the substantive decision being challenged. That is not the situation here. The special advocate is advancing concerns to minimise the unfairness to the applicant in having to respond to adverse statements about her, the detail of which she does not know. In Edwards, Wild J treated it as clear that leave will be granted “where cross-examination is necessary to dispose of the case fairly”.4 Making every allowance for the statutorily imposed limits on fairness in the present circumstances, a potentially important aspect of fairness arises in my task in being satisfied of the desirability of allowing unilateral
use of CSI.
2 Edwards v Toime (No 1) [2005] NZAR 140 (HC).
3 H W R Wade and C F Forsyth Administrative Law (8th ed, Oxford University Press, Oxford, 2000)
at 268, cited in Edwards v Toime, above n 2, at [21] (citations omitted).
4 At [21].
[14] Mr Martin did acknowledge that cross-examination on limited questions had been allowed in somewhat similar circumstances in Zaoui v Attorney-General.5 That proceeding comprised a judicial review of an interlocutory decision of the Inspector- General of Intelligence and Security. The applicant sought to cross-examine
Mr Woods, the Director of Security, on an affidavit in support of the impugned decision. Cross-examination was sought to test the credibility of information that had been relied on. Leave was granted because of the potential relevance of challenges to the accuracy of that information. The present circumstances are different in that the deponent sought to be cross-examined has not explained the substantive decision that is under challenge, but rather the justification for the certificate for CSI.
[15] Further, Crown counsel submitted there was a lack of utility in testing further the grounds for belief on the part of the Director-General about the nature of risks that would arise from disclosure of the information, including in particular the techniques deployed in obtaining it. This was because the Director-General’s opinion on the existence of risks under s 29AA(5) was arguably determinative. Opposition was also maintained because Crown counsel did not conceive of any prospect of the Court setting aside the certificate. Such a step is seen as being outside the procedures contemplated by the Act.
[16] I was not persuaded that consideration of striking out the Director-General’s certificate is either necessary or appropriate in further testing the extent to which the claim for CSI ought to be respected. The Court’s supervisory role in this respect is that specified in s 29AB(1) of the Act, namely I must be satisfied that it is desirable to allow closed court procedures for hearing CSI in order to protect it as such.
[17] Mr Martin submitted that the status and use of the CSI is now settled because I have approved the terms of the unclassified summary of the CSI that has been served on the applicant under s 29AB(2) of the Act. Even if this were not the first case dealing with the procedure under ss 29AA and 29AB of the Act, I would perceive the task under s 29AB(1) as an evolving one, not necessarily at an end when the Court has approved a summary of the CSI for service on the applicant. The sequence of steps in
preparing the applicant’s judicial review for substantive hearing has also been disrupted by my initiative in directing the respondent to provide further discovery of documents that were available to those preparing the recommendation for the Minister, but not referred to the Minister when the challenged decision was made. It would be inappropriate to preclude further matters being raised by the special advocate that arise out of that additional discovery, so far as it may impact on the appropriate scope to which CSI should be protected.
[18] In this case, material issues remain unanswered. It is preferable, and more efficient for the Court, to afford the deponent an opportunity of explaining these issues than the rather more unwieldy process of assessing whether an adverse inference is justified.
[19] The purpose for such cross-examination does not extend to considering any striking out of the certificate in a formal sense. The scope of documents and information for which that status is claimed by the Director-General is not the direct issue for the Court. Rather, it is the extent to which the Court is prepared to find it desirable to protect its status, in terms of how such documents and information are used in the proceeding.
Desirability of protecting CSI
[20] Thorough cross-examination on topics I had accepted as relevant occurred, with limited re-examination by Mr Martin, on 30 October 2018. After the evidence, I heard submissions from counsel as to whether the extent of risks to prejudicing the interests specified in s 29AA(7) of the Act that were made out were sufficient for me to be satisfied that it was desirable to receive the CSI as such for its protection. That is an assessment required of the Court under s 29AB(1). There is a legal issue as to the approach the Court should adopt under s 29AB(1), the terms of which are as follows:6
29AB Proceedings involving classified security information
(1) If information presented or proposed to be presented by the Crown in any proceedings to which section 29AA applies includes classified
security information, the court must, on a request for the purpose by the Attorney-General and if satisfied that it is desirable to do so for the protection of (either all or part of) the classified security information, receive or hear (the part or all of) the classified security information in the absence of—
(a) the person in respect of whom the decision concerned was made; and
(b) all barristers or solicitors (if any) representing that person; and
(c) members of the public.
[21] The specifics of the cross-examination and the factual aspect of Mr Keith’s submissions as to why I could not be so satisfied is necessarily dealt with in a closed court judgment, to be issued contemporaneously. Some of the submissions testing the justification for the CSI certificate touched on matters that have been argued at earlier stages, and which were dealt with in my June 2018 judgment.7 On the approach to the test of desirability of protecting the CSI, Mr Keith submitted that the Court cannot be blind to the unfairness of unilateral admission of documents. The concern to minimise unfairness arguably required the test of desirability of protection of the information to be applied from that perspective. Mr Keith reminded me that in the United Kingdom, in cases involving an equivalent closed court procedure, if particular items of classified information cannot be gisted, then it is presumptively unfair. To the extent that some of the documents certified by the Director-General as CSI cannot be described for the applicant, even in a gisted form, then Mr Keith argued that unfairness has to go to the relative extent of the desirability of protecting its CSI status.
[22] After further argument in July 2018 on the determinative status of a CSI certificate, my judgment of 19 July 2018 acknowledged limited circumstances in which the decision on the terms of a certificate as to CSI status might be judicially reviewable.8 As an alternative to his direct challenge to the validity of the CSI certificate, Mr Keith invited me to apply a rigorous standard to assessing the desirability of protecting the documents for which CSI had been certified, by applying
the approach he contended for.
7 A v Minister of Internal Affairs [2018] NZHC 1328.
8 A v Minister of Internal Affairs [2018] NZHC 1797 at [6]–[15].
[23] For the Crown, Mr Martin disputed that the assessment of desirability could involve any balancing of the applicant’s interests so as to minimise the extent of unfairness. He submitted the narrower task for the Court under s 29AB(1) was to recognise a need for protection of the CSI to an extent that it is desirable to respect that status for its protection. He submitted that, in carrying out this task, the Court should be mindful of the legislative concern that has justified an extraordinary exception to the basic rules of natural justice that are of fundamental importance in the conduct of judicial proceedings. He submitted that the nature of proceedings under the Act is different from law enforcement in criminal proceedings of any sort. The closed court procedure under the Act will apply in civil appeals or judicial review with none of the protections justifiably required in criminal procedure.
[24] On the Crown view, the decision under challenge by way of judicial review or appeal will not have impinged on the applicant or appellant’s liberty. Cancellation of a passport is a more limited intrusion into an individual’s rights, applies only for a finite period, and comes with the prospect of judicial supervision by way of appeal or judicial review. Mr Martin submitted that the concerns raised in a number of the cases cited by Mr Keith are not present in the context of judicial review or appeal. The limited nature of the infringement of rights was emphasised by Mr Martin in this case where the period for which the applicant’s passport was cancelled has now long expired, and she is free to apply again for a New Zealand passport.
[25] On the Court’s approach to the desirability assessment required under s 29AB(1), I am not persuaded that any balancing of interests can occur. Mr Keith would have the Court take into account the relative extent of unfairness caused to an applicant or appellant in having to prepare his or her case without having a particular document for which CSI status is certified, or a reasonable gist of the document. The relevant words in s 29AB(1) contemplate an assessment only of the relative importance (desirability) of protecting the CSI. The section does not contemplate any comparison of that relative importance against the extent of impediment to preparation of the applicant/appellant’s cases.
[26] Parliament has proscribed the exceptional procedure and I remain of the view that it needs only to make out a relatively low level of concern in the sense that it is
less than necessary for the Court to be appropriately satisfied that it is desirable to protect the CSI status of the information that has been certified as such by the head of the relevant agency. The focus must be on the desirability from the Court’s perspective of protecting the CSI. Sections 29AA and 29AB are structured on the assumption that the protection afforded by CSI status is as effective as could be procured in enabling the grounds for the Minister’s decision to be adequately explained to the Court.
[27] I have applied that approach in dealing with the specific grounds of challenge argued by Mr Keith after I had heard the evidence of the NZSIS deponent. I deal with my judgment on that challenge in a closed court judgment issued only to Crown counsel and the special advocate. The effect of that closed court judgment is that I am satisfied, in terms of s 29AB(1) of the Act, that it is desirable to protect the CSI as certified by the Director-General.
Further discovery for the respondent
[28] My 19 July 2018 judgment included the following direction for discovery of documents and information that was available to the officer or officers compiling the recommendation for the Minister, but which were not put to the Minister:9
[18] The broader definition of relevant documents that I have suggested in this case may not always apply. In this case, the most efficient way of dealing with it is for Crown Law to provide discovery to Mr Keith on an informal basis, with a view to counsel agreeing the documents within the wider category that would be relevant to argument in the case, and the extent to which they are appropriately covered by CSI status.
[29] In giving that direction, I failed to apprehend the nature and extent of documents held by the NZSIS that have some potential relevance to the views formed about the applicant when the relevant recommendation was made to the Minister. For reasons explained by Mr Martin, NZSIS and Crown Law perceive there to be a range of difficulties in complying with my direction. Substantial time would be involved in completing the tasks.
[30] Crown Law’s attempts to begin the process of disclosure have drawn a number of criticisms from Mr Keith. I agree with him that beginning the informal process of
9 A v Minister of Internal Affairs, above n 8.
affording him access to them by lists of the names of documents which give no real indication of their content is not helpful.
[31] Mr Martin explains the lack of progress is due to the cumbersome nature of the task as I have imposed it, and the very limited resources available to undertake the vetting.
[32] I am also mindful that the applicant expressed concern at the lack of progress in the special advocate being able to assess additional documents that might reflect information held by the NZSIS that was inconsistent with the recommendation made to the Minister.
[33] The options for proceeding with informal discovery on any variant of the mode I contemplated when making my original direction for it would involve time and cost that I am satisfied would be disproportionate to the potential relevance and relative importance of any documents with potential exculpatory content such as I contemplated. I maintain that view notwithstanding the applicant’s submission that attempts to truncate this stage of the proceeding would be “belittling and unjustifiable”. Proportionality is an important consideration in all judicial review proceedings, and necessarily influences the directions to get the substantive application to hearing.
[34] After hearing from counsel, I was satisfied that an alternative procedure is needed to address the prospect as originally raised by me. I accordingly agreed with counsel to replace the previous direction for discovery on an informal basis with a focused sequence of Court-supervised questions of the officers who were responsible for drafting and presenting the recommendation to the Minister. Those questions are to be posed of each of the officers responsible for drafting and presenting the recommendation in the following terms:
• In the course of your work in preparing or presenting the recommendation to the Minister, did you become aware of any information that might possibly have been treated by the Minister as exculpatory of conduct that
would otherwise be held against the applicant, but which was not acknowledged or referred to in the recommendation?
• If the answer to the first question is yes, please identify each of the documents containing such information.
[35] To the extent that the answers from the officers identify relevant documents, then they are promptly to be provided to Mr Keith by means of informal discovery in the first instance. To the extent that any of the documents contain content, the disclosure of which would require the consent of other agencies, the remainder of such documents are to be provided in redacted form to Mr Keith. Consent for the very limited disclosure that would attach to documents subject to a CSI certificate is to be sought as a matter of priority from the agency or agencies involved.
Response to Mr Keith’s “matters omitted” document
[36] Mr Keith sought a direction that Crown Law be required to provide a specific rejoinder to the list of matters which he considers have not been referred to in the record put to the Minister. During the hearing on 30 October 2018, I was provided with a copy of the list as conveyed to the applicant.
[37] Thus far, in confirming the unclassified status of the content so it could be copied to the applicant, Crown Law has done no more than reserving its position in terms that it does not agree with Mr Keith’s characterisation of what has been omitted, and also reserving its position as to the presumed relevance of the items listed.
Mr Keith criticises the limited nature of that response as unhelpful. He sought a direction that Crown Law be required to specify whether the matters he has identified as omitted are, in the view of the respondent, referred to and, if so, where in the materials that were put to the Minister. Further, if relevance is disputed, then a brief indication of why that is so.
[38] Among Mr Keith’s motives for pressing for this is that he foresees the prospect of defining a separate question of law for prior determination. If, for example, Crown Law accepts that a particular matter he has listed was not addressed in the recommendation to the Minister, but which he contends is a relevant mandatory
consideration, then a separate confined argument on the point might lead to success on the applicant’s judicial review without the need to traverse the remaining, more extensive grounds.
[39] In the open hearing on 26 October 2018, the applicant also sought such a direction for a response in the nature of a pleading from the respondent to aid her understanding of the scope of issues likely to arise in her application for judicial review.
[40] I indicated my lack of enthusiasm for any separate argument of questions of law, in any circumstances such as those that Mr Keith instanced. Quite apart from concerns of proportionality and the need to procure orderly finality in the judicial review as soon as reasonably possible, I would take some convincing that what appeared to be a discrete question of law could be adequately argued in isolation from the factual matrix and combined issues of fact and law that will also arise. I was therefore not prepared to direct anything more than a reply on behalf of Crown Law as to whether matters perceived as omitted were, in the respondent’s view, in fact addressed in the record put before the responsible Minister, but no more.
Privacy of communications between the applicant and the special advocate
[41] Mr Keith sought assurances on the extent to which the applicant would be protected if she elects to traverse factual matters with him in circumstances where, if it was a solicitor/client relationship, the communications would be privileged for all purposes. At an earlier stage of the proceeding, I acknowledged that the special advocate/applicant relationship is not one covered by solicitor/client privilege, with some risk that it may also not be one covered by litigation privilege.
[42] To the extent there is a doubt about the application of the second form of privilege, I have previously indicated my view that such communications should be respected as covered by litigation privilege, given the purpose of that privilege and the unusual position occupied by a special advocate participating in a proceeding involving the closed court procedure.
[43] Mr Keith sought confirmation that New Zealand agencies other than the NZSIS, in particular GCSB and the Police, who are not directly involved in this proceeding, would be required to respect the privilege and not attempt to intercept and make any use of any communications the applicant elects to have with him about matters arising in the proceeding.
[44] Mr Martin’s rejoinder on behalf of the respondent is to confirm that the NZSIS does respect the communications as protected by litigation privilege, or its equivalent. He was not in a position to speak for other agencies. Without full argument on the point, the preferable view appears to be that the applicant can avail herself of the privilege for preparatory materials for proceedings in s 56(2)(a) of the Evidence Act
2006. That addresses the exclusion of any such communications from materials that would be admissible in any proceedings in New Zealand.
[45] I direct Crown Law to give notice to any government agencies that may take an interest in communications between the applicant and the special advocate that the Court treats all such communications as covered by the s 56 privilege or, if necessary, its common law equivalent recognised to meet the exigencies of the present litigation. Consequently, the content of such communications would be inadmissible in proceedings of all types in New Zealand and retention of a record of such communications, once their character was confirmed as coming within that I have described, would be improper.
[46] Mr Keith also requested that the NZSIS be required to clarify the position with partner organisations in Australia. I am not prepared to make any direction which I do not consider could ever have effective force.
Summary
[47] I am unable to accept Mr Keith’s approach to interpretation of the test under s 29AB(1) of the Act. There is no scope for balancing the relative extent of unfairness to an applicant for judicial review in such closed court proceedings, against the desirability of protection of the CSI. I will be issuing a closed court judgment contemporaneously with this one, addressing the specifics of Mr Keith’s challenge to CSI status claimed for various categories of information.
[48] I have amended the process for provision of further discovery by the respondent. I direct that the officers involved should address the prospect of potentially exculpatory materials not provided to the Minister by responding to questions posed of them (see [34] above).
[49] As to a requirement for a Crown Law response to Mr Keith’s “matters omitted” document, Crown Law is required to do no more than specify whether it agrees that each of the matters listed were indeed omitted.
[50] I address Mr Keith’s concerns for the privileged status of any communications on factual matters conveyed to him by the applicant.
[51] No issues as to costs need to be addressed at this stage on the steps considered in this judgment.
Vetting
[52] As with previous open judgments issued in this proceeding, the terms of this judgment have been referred to the relevant security agency for confirmation that its terms do not make any references to CSI that could be of concern to them.
Dobson J
Solicitors:
Crown Law, Wellington for respondent
Copy to:
The applicant
Special Advocate, BJR Keith, Wellington
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