A v Minister of Internal Affairs
[2018] NZHC 1797
•19 July 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 1797
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: 16 July 2018 Counsel:
AL Martin and KG Stone for respondent BJR Keith, Special Advocate
Judgment:
19 July 2018
RESERVED INTERLOCUTORY JUDGMENT OF DOBSON J
[1] This open judgment deals with certain matters heard in the closed court argument on 16 July 2018, and with the applicant’s request for suppression of allegations as advanced in her memorandum dated 18 July 2018.
Closed Court argument on 16 July 2018
[2] I address below generic issues about the Court’s powers in the process involved in such proceedings. I will contemporaneously be issuing a closed court minute to Crown Law and the special advocate, confirming the arrangements settled at the end of the hearing for the next steps that are to occur in this judicial review.
A v MINISTER OF INTERNAL AFFAIRS [2018] NZHC 1797 [19 July 2018]
[3]The argument I heard included the following matters:
· the process for vetting claims to classified security information (CSI) status under ss 29AA and 29AB of the Passports Act 1992;
· the process for discovery by the Crown of documents beyond those relied on in the report to the Minister of Internal Affairs (the Minister) in reliance on which the cancellation decision being challenged was made;
· the appropriate content of the unclassified summary of the CSI to be provided to the applicant.
[4] I had read and have considered the applicant’s memorandum of 20 June 2018 and her submissions of 11 July 2018 and reflected on the matters raised by her in light of the argument I heard.
[5] Counsel agreed that the involvement of a special advocate changes the options available for working through the interlocutory processes. Notwithstanding that there is no provision in the statute for such involvement, it is appropriate to adapt the procedures as contemplated in the statute to take into account the special advocate’s involvement to the extent that can ameliorate some of the difficulties in dealing with CSI.
Vetting claims to CSI status
[6] In my 7 June 2018 judgment, I described the Court’s role in the following terms:1
[13] The Court’s role is not to vet the reasonableness of the grounds for the head of the security agency to certify that the information qualifies as CSI. Certification of any information as CSI reflects the view of the head of the relevant agency, as provided in s 29AA(5)(c). The Court’s task is to be satisfied that receiving and considering the CSI in the absence of the affected person and anyone acting for them is desirable for the protection of all or part of the CSI. The Court is also tasked with approving a summary of the CSI.
1 A v Minister of Internal Affairs [2018] NZHC 1328.
[7] I accepted the Crown’s contention that it remains in control of information for which the head of a security agency has claimed CSI status. I treated the Court’s role as assessing the desirability of withholding the CSI for its protection.2
[8] The applicant’s recent submissions implicitly treat the Court’s powers in supervising disclosure of documents as extending to a power to reject claims by the head of the security agency to CSI status. In his most recent submissions, the special advocate has invited reconsideration of circumstances that were not addressed in my 7 June 2018 judgment. In particular, Mr Keith suggested a limited range of circumstances in which the Court’s supervisory role arguably extends to questioning the justification for a claim to CSI status. This could arise where:
· there was no evidence of circumstances justifying a view that the information was of the kind specified in s 29AA(6);
· there was no evidence that disclosure of the information would be a disclosure of the kind specified in s 29AA(7); and
· it was apparent that the claim to CSI status had been made in respect of the whole of a document without consideration being given to redacting those parts that did contain information of the kind specified in s 29AA(6) but providing disclosure of the balance of the document that inarguably did not contain such information.
[9] Mr Keith submitted that the task for the head of the specified agency in forming an opinion on whether CSI status applied necessarily involved the prospect of partial redactions, by analogy with the obligations required when a Prime Minister’s certificate is relied on to claim public interest immunity from disclosure. In Choudry v Attorney-General, in rejecting as inadequate a certificate by the Prime Minister lodged with the Court as the basis for a claim for public interest immunity, one aspect of the inadequacy found by the Court of Appeal was that the certificate did not state
2 At [40], [41] and [43].
why appropriate editing would not be sufficient to protect the security interests involved.3
[10] The circumstances contemplated in my 7 June 2018 judgment assumed that a decision by a security agency to withdraw CSI when a difference arose as to the extent to which it needed to be described to an applicant in an unclassified summary of it would involve an impairment to the Crown’s defence of the challenged decision. This was because the information sought to be protected was presumed to be supportive of the recommendation that cancellation of the passport was warranted, but the need to protect the secrecy of that information outweighed the need to include it as part of the evidence justifying the challenged decision.
[11] In those circumstances, there is presumptively a pressure on the Crown to minimise the extent to which it withdraws CSI, so as to maximise the evidence justifying the impugned decision.
[12] However, the factors influencing a decision to withdraw CSI could be quite different if the document in question contains exculpatory material that would assist the applicant/appellant. Mr Keith did not raise the spectre of bad faith or improper motive in a decision made under sch 2, cl 8 of the Passports Act 1992 to withdraw the CSI where withholding a document would deprive the applicant/appellant of access to information that could strengthen his or her case. However, that is among the range of conceptual possibilities that might arise.
[13] Mr Martin accepted that his analysis of the process advanced at the last hearing did not cater for prospects such as the Court being concerned that a claim to CSI status for a document helpful to an applicant/appellant was made wholly or partly to frustrate the challenge to the impugned decision.
[14] Mr Keith submitted that any certificate reflecting the opinion of the head of the specified agency issued under s 29AA(5)(c) amounts to the exercise of a statutory power and, in the absence of any privative provision, is judicially reviewable. He accepted as a matter of context that a high threshold would need to be reached before
3 Choudry v Attorney-General [1999] 2 NZLR 582 (CA) at 596.
a judicial review challenge could be mounted to such a certification, but in limited circumstances such as those he reviewed he nonetheless argued that the Court retained a supervisory jurisdiction to review the lawfulness of the exercise of that power.
[15] I am persuaded that there may be limited exceptions to the process under which the Crown remains in control of the scope of information for which CSI status is claimed, and the subsequent withdrawal of such information in the event of a difference of view with the Court about the extent to which it should be described in an unclassified summary of the CSI. It is unnecessary at this point to attempt any definition of the limited exceptions where an applicant for review or appellant challenging a decision to cancel that person’s passport might challenge the lawfulness of the certification decision. The limited circumstances described above are possible examples.
Discovery process for wider categories of documents
[16] In my 7 June 2018 judgment, I acknowledged that in some cases a wider range of documents than those that were presented to the Minister in support of the recommendation that a passport be cancelled would be relevant and therefore are likely to be discoverable. I also observed, without the point being the subject of any substantial argument, that the process for protecting the secrecy of such wider categories of document by certifying them as CSI where appropriate would also apply.4
[17] Mr Martin suggested that imposing a discovery obligation in the wider terms I had contemplated by attributing relevance to all documents and information that was available to the officer or officers compiling the recommendation for the Minister could create logistical concerns. In some cases, that breadth of information might lead to substantial volumes of information requiring extensive vetting, and then potentially extensive analysis to facilitate the formation of an opinion by the head of the specified agency in providing a certificate as to the status of part or all of it as CSI. Difficulties could also arise where listing in an affidavit of documents of itself involved the spectre of disclosures entitled to protection under s 29AA(5).
4 A v Minister of Internal Affairs, above n 1, at [47] and [48].
[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.
[19] I confirm that that process should occur on the basis that any document discovered as being relevant on the broader definition I have proposed is covered by the procedure provided for in s 29AA(5). That would mean that if, by virtue of its content and circumstances of acquisition, the document potentially comes within s 29AA(6) and (7), it can be the subject of a certificate under s 29AA(5)(c).
Appropriate content of the unclassified summary of CSI
[20] In exchanging views on the scope of the appropriate content of the unclassified summary of CSI, Messrs Martin and Keith adopted different approaches to whether the summary should include observations on the absence of matters which the applicant might have expected to be addressed. Mr Keith proposed that the summary should include such acknowledgements of omitted matters that could arguably be relevant to a fully reasoned recommendation on cancellation of an applicant’s passport.
[21] For the Crown, Mr Martin objected to any content by way of commentary on what was not included. Any such commentary would fall outside the statutory definition of a summary of the information that is being withheld. As a practical consideration, the Crown might reasonably resist the implication of relevance that could arise if the special advocate proposed a statement about the absence of a particular consideration when the Crown wished to reserve its position on the relevance of that matter.
[22] At least in the context of the present case, I am not persuaded that the summary should include any such commentary.
[23] Instead, I have invited counsel to liaise on the basis that Mr Keith prepare a separate document commenting on the matters he wishes to draw to the applicant’s attention that, on his view of relevance, might be expected to have been addressed but which were not. Any such summary would need to be vetted against the prospect that there is inadvertent reference to CSI in it. Once that has occurred the legitimate purpose for such comments as raised by Mr Keith would be appropriately conveyed to the applicant without the Crown being imputed with any acceptance of the alleged relevance of matters that were omitted.
[24] In my contemporaneous closed court minute I am setting a timetable for progressing these interlocutory processes and will address further issues as they arise.
Applicant’s request for suppression of the nature of allegations against her
[25] By memorandum dated 18 July 2018, the applicant has sought a suppression order to prevent any publication of the nature of the allegations that were put to and potentially relied on by the Minister in making the decision to cancel her passport in 2016. The request is supported by an affidavit completed by the applicant which describes the level of interest that she anticipates is likely to be generated by a judgment in the proceedings, on the basis of her experience thus far.
[26] The application does not need to be dealt with in relation to remaining interlocutory steps in the proceedings. My contemplation is that any future interlocutory hearings will be necessarily closed court ones and I can ensure that no references are made in any open judgments that become appropriate to the nature of the allegations that were put to the Minister. Any open judgments will necessarily be dealing with matters in generic terms.
[27] It is premature to confirm the scope of any suppression orders that will apply to the Court’s substantive judgment. The balancing of the public interest in open justice against the legitimate personal interests of a litigant likely to be substantially harmed by publication of matters traversed in the proceeding should only be undertaken in light of the outcome.
[28] Accordingly, the applicant’s concerns will not arise prior to the substantive hearing. I direct that the substantive judgment is to be suppressed on its initial issue, which will be restricted to counsel and the parties and the applicant will be afforded an opportunity to renew the application for suppression in light of the outcome at that time.
Process for delivery of this judgment
[29] I am satisfied that no CSI is apparent from the terms of this judgment. Nonetheless, to comply with the protocol governing such proceedings I have had the Court custodian offer to provide it first only to the security agencies to afford them an opportunity to satisfy themselves on that point. That offer has been declined and the judgment is accordingly being issued in the normal way.
Dobson J
Solicitors:
Crown Law, Wellington for respondent
Copy to:
The applicant
Special Advocate, BJR Keith, Wellington
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