JM v Human Rights Review Tribunal

[2023] NZHC 228

PENDING FURTHER ORDER OF THE COURT, PUBLICATION OF THE APPLICANT’S NAME OR IDENTIFYING DETAILS IS PROHIBITED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1741

[2023] NZHC 228

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of a review of the decision of the Human Rights Review Tribunal dated 25 August 2022

AND IN THE MATTER

of a claim under the Privacy Act 2020

BETWEEN

JM

Applicant

AND

HUMAN RIGHTS REVIEW TRIBUNAL

First Respondent

ATTORNEY-GENERAL on behalf of the MINISTER RESPONSIBLE FOR THE NEW ZEALAND SECURITY

INTELLIGENCE SERVICE

Second Respondent

Hearing:

1 February 2023

Appearances:

PJ Dale KC for the Applicant

K Laurenson for the Second Respondent

Judgment:

17 February 2023

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 17 February 2023 at 3.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar  Date……………

JM v HUMAN RIGHTS REVIEW TRIBUNAL [2023] NZHC 228 [17 February 2023]

Introduction.............................................................................................................. [1]

Factual background................................................................................................. [6]
JM’s concerns as to surveillance – backdrop to the Privacy Act requests             [6]
JM’s requests for information under the Privacy Act 1993  [8]
JM’s case before the Tribunal................................................................................ [9]

JM’s application for permanent name suppression............................................. [18]

The approach to name suppression in the Tribunal........................................... [23]

The Tribunal’s decision......................................................................................... [39]
The application for review.................................................................................... [53]
Is there a right of appeal from the Tribunal’s decision?.................................... [66]

Should JM be permitted to adduce further affidavit evidence on the judicial review application?............................................................................................................ [78]

Analysis of JM’s grounds of review..................................................................... [81]

Introduction.......................................................................................................... [81]
Ground 1(a) – failure to take into account mandatory relevant considerations. [87]

Grounds 1(b) to (d) – general comments............................................................. [93] Ground 1(b) – the Tribunal erred in concluding it was not open to assume the

Minister was holding information about him.................................................... [100]

Ground 1(c) – the Tribunal erred in concluding that there was nothing before the Tribunal to suggest that publicity given to JM’s case would draw any comparisons with the Christchurch Mosque or LynnMall attacks.............................................................................. [108]

Ground 1(d) – the Tribunal erred in declining to find that there was a real likelihood of damage to JM’s reputation and employment prospects were

permanent name suppression not to be granted................................................. [111]

Ground 1(e) – The Tribunal further erred in rejecting the submission that suppression of JM’s name will frustrate the interests of justice.......................................................... [113]

Result..................................................................................................................... [118]

Introduction

[1]    The applicant, JM, applies for judicial review of a decision of the Human Rights Review Tribunal (the Tribunal) declining his application for permanent name suppression in proceedings he has brought before the Tribunal.1 JM sought permanent name suppression for himself and also any witnesses he proposes to call to give evidence in the proceedings.

[2]    In his proceedings before the Tribunal, JM alleges that the second respondent (the Minister) – who is the Minister responsible for the New Zealand Security Intelligence Service (NZSIS) – breached his obligations to JM under the Privacy Act 1993. The alleged breaches are set out in more detail later in this judgment, but in short, they concern the timing and nature of the Minister’s response to JM’s requests for any personal information held by the Minister about him.

[3]    The grounds of JM’s application for judicial review are set out in more detail at [53] to [64] below. However, a key theme of JM’s application is that the Tribunal erred in concluding that he had not demonstrated that specific adverse consequences would follow were permanent name suppression not to be granted.

[4]    The Attorney-General (on behalf of the Minister) disputes that the Tribunal erred and supports its decision not to grant permanent name suppression. The Attorney-General also raises two procedural points in opposition to JM’s application for judicial review:

(a)First, he submits that there is a right of appeal against a decision by the Tribunal to grant, or not grant as the case may be, permanent name suppression. JM did not exercise this right and would now be out of time in doing so. While the Attorney does not suggest that JM’s application for judicial review is therefore an abuse of process, he says it is nevertheless a factor relevant to the question of relief, were I to find that the Tribunal has erred in the manner alleged.

1      [JM] v Minister Responsible for the New Zealand Security Intelligence Service [Redacted].

(b)Second, JM filed three affidavits in this proceeding. They were not before the Tribunal when it made its decision declining his application for permanent name suppression. The Attorney submits that the affidavits are neither fresh nor cogent evidence, and accordingly should not be taken into account on the judicial review application.

[5]    In light of the above, the following issues arise for determination on JM’s application:

(a)Is there a right of appeal from a decision of the Tribunal declining to grant permanent name suppression in proceedings before it?

(b)If the answer to (a) above is yes, what is the implication, if any, for JM’s application for judicial review?

(c)Should the Court admit and take into account the three affidavits filed by JM in this proceeding?

(d)What is the proper approach to an application for permanent name suppression in proceedings before the Tribunal?

(e)Did the Tribunal err in any of the ways alleged by JM?

(f)If the Tribunal did err, what relief ought to be granted?

Factual background

JM’s concerns as to surveillance – backdrop to the Privacy Act requests

[6]    JM believes that he has been and continues to be under surveillance, and subject to harassment, by an unknown entity or organisation. His affidavits before the Tribunal, and that filed on the present application, speak in detail to what he considers to be a pattern of surveillance and harassment extending over many years. Two others have sworn affidavits in the Tribunal (and in this proceeding) supporting JM’s account of events. I apprehend that JM made his Privacy Act requests to the Minister in order

to find out whether it was the NZSIS conducting what he believes to be the surveillance of him.

[7]    I pause to note that it is irrelevant to the present application whether JM is in fact under surveillance, or whether, for example, JM has wrongly drawn that conclusion from certain events and experiences that have occurred over the years. In addition, given the nature of JM’s claims before the Tribunal (discussed in further detail below), it seems likely that whether JM is under surveillance will also be irrelevant in the Tribunal’s proceedings. Indeed, I doubt very much that the Tribunal could determine that factual question in any event. I mention these matters now given a not insignificant part of JM’s materials filed in this proceeding (and in the Tribunal), and the submissions made on his behalf, address the suggested surveillance. Given that this is irrelevant to the issues I must determine, I say nothing further about it. I simply proceed on the basis that JM believes he is the subject of surveillance.

JM’s requests for information under the Privacy Act 1993

[8]    Turning to JM’s Privacy Act requests of the Minister, the Tribunal summarised the background as follows:

[2]        On 16 March 2020 [JM] requested any information about him held by the Minister, in his capacity as minister responsible for the NZSIS. The Minister’s responses, the first of which was dated 4 May 2020, included advice that the information was not held by the Minister’s office directly. The Minister noted that [JM] could direct a request for information to the NZSIS or that the request could be transferred to the NZSIS, if [JM] preferred. The Minister’s statement of reply acknowledges this response was technically a refusal and that the grounds and reason for the refusal should have been given.

[3]        On 16 July 2020 [JM] made a further request for information. This included whether the Minister had ever approved an intelligence warrant to surveil [JM], whether the Minister had ever discussed information gathering or “surveilling” [JM] with anyone and whether the Minister had ever discussed a privacy request of [JM’s] with anyone from the NZSIS.

[4]        In his statement of reply the Minister says that, in relation to [JM’s] questions about surveillance of him, the Minister advised [JM], by letter dated 30 July 2020:

As the Minister Responsible for the NZSIS, it is not my usual practice to comment on operational matters. As you can appreciate, it is necessary for the NZSIS to protect information about its area of focus, or areas it is not focusing on, to ensure it can operate effectively as an intelligence agency.

For this reason, as provided by section 10 of the OIA, I can neither confirm nor deny whether I hold the information you have requested. I consider that to do so would be likely to prejudice the interest protected by section 6(a) of the Act, namely the security or defence of New Zealand.

Receiving a section 10 “neither confirm nor deny” response should not lead you to conclude that the information you have asked for is either held, or not held.

[5]        The Minister’s statement of reply also acknowledges that [JM’s] requests were actually under the PA and therefore reference should have been made to PA, s 32, rather than to the Official Information Act 1982.

[6]        In a further request dated 18 August 2020 [JM] asked for certain other information. On 2 September 2020 the Minister responded advising that some draft responses to [JM’s] earlier responses had not been given (as they were identical to the earlier formal responses disclosed), and other information did not exist.

[7]        Being dissatisfied with the Minister’s responses, [JM] brought his case to the Tribunal.

JM’s case before the Tribunal

[9]    JM’s case before the Tribunal is set out in his statement of claim (and accompanying documents) filed with the Tribunal in June 2021.2 JM alleges many (sometimes overlapping) breaches by the Minister of the Privacy Act, arising out of various items of correspondence between himself and the Minister. I have found it helpful to consider the content of JM’s case before the Tribunal, as it informs what evidence and submissions will likely be relevant to the Tribunal’s determination of the proceedings, and therefore what information might be publicly available in the absence of name suppression.

[10]   In relation to the Minister’s letter dated 4 May 2020, JM alleges the Minister breached the following provisions of the Privacy Act 1993:

(a)Section 40(1), in relation to the timing of the Minister’s response.

2      This followed the Privacy Commissioner conducting an investigation, but on 22 December 2020, the Commissioner decided not to investigate JM’s complaints further. The statutory references in JM’s claim before the Tribunal are to the Privacy Act 1993, not the 2020 Act.

(b)Section 39, in that if the Minister did not himself hold information about JM, the Minister failed to refer JM’s request to another agency (namely the NZSIS).

(c)Section 44, in that:

(i)if the letter comprised a refusal to provide the information sought, a reason for refusal – and grounds for that reason – should have been but were not given; and

(ii)the Minister referred JM to the Ombudsman rather than to the Privacy Commissioner.

[11]   In terms of the Minister’s letter dated 30 July 2020, JM alleges the following breaches:

(a)Various breaches of s 44 of the Privacy Act, in that:

(i)the Minister’s “neither confirm nor deny” response is distinct from his earlier response, and the Minister failed to give a reason for his refusal to provide the requested information;

(ii)the Minister made no mention in his letter of the Privacy Act or the right to complain to the Commissioner;

(iii)the Minister invoked s 10 of the Official Information Act (which permits a “neither confirm nor deny” response in certain circumstances), when JM’s requests were made under the Privacy Act; and

(iv)the Minister advised JM that he has a right to seek an investigation and review by the Ombudsman, again with no mention of the Privacy Act or the right to complain to the Commissioner.

(b)An alleged breach of s 40(1) of the Privacy Act, in that the Minister did not provide the requested copies of earlier correspondence between JM and the Minister within the required 20 working day period (in turn being a deemed refusal under s 66(3) of the Act).

(c)While not listed as a separate breach, JM also alleges that the statutory conditions upon which s 32 of the Privacy Act may be invoked (which, like s 10 of the Official Information Act, permit a “neither confirm nor deny response” in certain circumstances) have not been fulfilled.

[12]   JM alleges further breaches of the Privacy Act arising from the Minister’s third letter, dated 2 September 2020:

(a)Breaches of ss 40(1), 44(a)(i) and s 44(a)(ii), on the basis the Minister failed to supply the requested correspondence within 20 working days and failed to supply an administrative record of when the correspondence was received by his office. JM further states that to the date of his complaint, he had still not been supplied with an administrative record of when his reminder letter of 1 May 2020 was actually received by the Minister, amounting to a deemed refusal under s 66(3) and therefore triggering the obligation to provide a reason, and grounds for refusal, under s 44(a)(i).

(b)A breach of s 44(b), by failing to refer JM to the right to complain to the Privacy Commissioner, rather than giving him information about the right to complain to the Inspector General of Intelligence and Security.

(c)Alleged breaches of ss 40(1)(a), 40(1)(b) and 66(3), in that with his letter dated 2 September 2020, the Minister provided some email correspondence about JM’s Privacy Act requests but omitted to provide attachments to the emails and other materials suggested to exist (in particular a “draft transfer of the plaintiff’s Privacy Act request, from the defendant to the NZSIS”).

(d)An alleged breach of s 40(1), on the basis that given JM’s various follow-ups and reminders since his original Privacy Act request, it can be inferred that there would likely be further internal communications regarding his requests, however none were furnished.

(e)Various alleged breaches of ss 40 and 44 of the Act, by the omission of various attachments to the materials provided with the Minister’s letter, an apparent failure to make a decision on whether to supply the requested correspondence, and a failure to give notice of that decision, reasons or grounds.

(f)An alleged breach of Information Privacy Principle (IPP) 6(2), in terms of the Minister’s alleged breach of his statutory duty to advise JM that under IPP 7, he may request correction of the information that was provided.

[13]   JM alleges further breaches of the Privacy Act arising out of the Minister’s letters dated 11 November 2020 and 17 February 2021. In the first letter, the Minister had stated:

[JM], this is your third request of an extremely similar nature on this topic in the past three months. A disproportionate amount of taxpayer money has already been spent responding to these requests, I will not be treating further requests on this topic as Official Information Act requests.

[14]   In response to further correspondence from JM, the Minister sent a letter dated 17 February 2021 stating:

Due to the disproportionate amount of resources that have already been devoted to responding to your requests of a very similar nature, I wish to advise you that I am now at the point where I consider your requests to be vexatious. I will no longer be treating any requests on this topic as OIA requests.

[15]In relation to these two letters, JM alleges breaches of:

(a)IPP 6(1)(a) and IPP 6(1)(b), on the basis there is an implicit refusal to respond to further requests under the Privacy Act.

(b)An alleged breach of IPP 7, on the basis that through the implicit refusal to respond to further requests under the Privacy Act, the Minister has impeded any steps JM might have been able to take in order to correct information the Minister holds.

[16]   Finally, JM alleges various breaches arising out of the Minister’s letter dated 1 December 2020, providing what JM says to be at least some of the requested internal correspondence about his Privacy Act requests. JM alleges breaches of:

(a)Section 40(1) of the Privacy Act, given some of the requested information was provided outside the statutory time period, leading to a deemed failure to supply the information, a failure to give notice of a decision, and failing to give reasons and grounds for the refusal.

(b)A further breach of s 40(1), by the Minister allegedly failing to provide earlier drafts, rather than just final drafts, of communications provided with the Minister’s letter. JM alleges that by not providing the earlier drafts, the Minister failed to carry out his statutory duty within 20 working days to decide whether JM’s request for internal correspondence about his Privacy Act requests was to be granted; to inform JM of that decision; leading to a deemed refusal of JM’s request; and accordingly, a failure to provide reasons and grounds for that refusal.

[17]In terms of relief, JM seeks:

(a)a declaration of interference with his privacy by the Minister;

(b)an order for the Minister to take action to remedy the interference, which is said to involve providing the information previously refused;

(c)in relation to the “neither confirm nor deny” response, an order that the Minister make a new decision on JM’s relevant request; and

(d)an award of damages in the sum of $100,000.

JM’s application for permanent name suppression

[18]   Despite being filed in June 2021, the substantive case before the Tribunal has not progressed. The reason for this is that, prior to filing any evidence in support of his claim, JM sought permanent name suppression orders.

[19]   JM filed detailed materials and submissions in the Tribunal in support of his application. It is not necessary to address that material or submissions in detail, but the following extracts from JM’s submissions give a useful indication of why he argued that name suppression was appropriate in this case:3

(a)“The Minister is a key figure in leading the country’s response to the Christchurch terrorist attack, and has spoken at length of the likelihood of apparently ordinary people becoming terrorist threats. By that understanding, an apparently ordinary law abiding person bringing a Privacy Act case against the Minister might fall under suspicion. Suspicion of being someone potentially brought to the Minister’s attention, and therefore potentially a threat to national security or even public safety”.

(b)“Anyone bringing a Privacy Act complaint against the Minister, might reasonably fall under public suspicion as someone who could potentially be in that category”.

(c)“Certainly members of the public might be reasonably suspicious that anyone pursuing a Privacy Act complaint against the Minister, might potentially have come to the Minister’s attention”.

(d)“The very fact that someone has seen fit to go through this legal process of challenging a Privacy Act response by the defendant in his capacity as Minister responsible for the NZSIS, could reasonably give rise to the suspicion, that this person might present a threat to public safety”.

3      The following are taken from a memorandum and supporting materials filed by JM with the Tribunal on 15 November 2021. See also [10] of the statement of claim in this proceeding.

(e)“The defendant’s breaches of the Privacy Act have been so numerous, as to make members of the public suspect that his breaches may be deliberate, and that consequently there must be some chance that the plaintiff could be a threat the national security”.

(f)“Any reasonable person looking at the repeating pattern of very obvious breaches of the Privacy Act 1993 by the [Minister], would be [led] to suspect that the defendant was avoiding giving a response to the plaintiff under the Privacy Act. Consequently, it could be inferred that the defendant likely did hold information about the plaintiff, and therefore there must be some chance the defendant is a threat to the security and safety of the public”.

[20]   I interpolate to observe that Ms Laurenson, counsel for the Attorney-General, submitted that given the arguments made by JM and replicated at (a) to (d) above, his application for permanent name suppression (that is, rather than interim name suppression) made sense, in that the suggested adverse consequences from publication do not turn on the outcome of his proceedings in the Tribunal. I agree. Only those arguments referred to at (e) and (f) above are tied to the outcome of the substantive proceedings, rather than to the very fact of those proceedings.

[21]   JM said before the Tribunal that if name suppression were not granted, and suspicion fell on him in the manner set out in the above extracts, those recognising who he is could be afraid to associate with him; it could cause rifts in the family; social isolation; and relationship problems in the workplace that could lead to the loss of his current employment. JM said, “any reasonable person would be afraid to be connected with someone who had apparently come to the attention of the defendant in his capacity as Minister responsible for the NZSIS.” JM argued that similar issues will arise for witnesses to be called by him who are not granted permanent name suppression.

[22]   JM is also concerned that there will be a “chilling” effect were permanent name suppression not to be granted. He explained that, in that situation, he would feel unable to continue with his claim, and the absence of name suppression would in turn

deter any other persons reasonably bringing proceedings before the Tribunal against the Minister. Conversely, JM argued that there is no real public interest in his name being published, or that of his witnesses.

The approach to name suppression in the Tribunal

[23]   In order to put the Tribunal’s decision in context, it is helpful first to summarise the approach taken to name suppression in proceedings before the Tribunal.

[24]   The Tribunal’s jurisdiction to make final non-publication orders is governed by s 107 of the Human Rights Act 1993 (the HRA). It is not disputed that s 107 confers on the Tribunal the power to make orders as to name suppression.

[25]Section 107 of the HRA provides:

107     Sittings to be held in public except in special circumstances

(1)Except as provided by subsections (2) and (3), every hearing of the Tribunal shall be held in public.

(2)The Tribunal may deliberate in private as to its decision in any matter or as to any question arising in the course of any proceedings before it.

(3)Where the Tribunal is satisfied that it is desirable to do so, the Tribunal may, of its own motion or on the application of any party to the proceedings,—

(a)    order that any hearing held by it be heard in private, either as to the whole or any portion thereof:

(b)    make an order prohibiting the publication of any report or account of the evidence or other proceedings in any proceedings before it (whether heard in public or in private) either as to the whole or any portion thereof:

(c)    make an order prohibiting the publication of the whole or part of any books or documents produced at any hearing of the Tribunal.

(4)Every person commits an offence and is liable on conviction to a fine not exceeding $3,000 who acts in contravention of any order made by the Tribunal under subsection (3)(b) or subsection (3)(c).

(Emphasis added)

[26]   The Tribunal is accordingly under a statutory directive, subject to prescribed exceptions, to hold every hearing before it in public. This will involve making parties’ names public, unless the Tribunal is satisfied that it is desirable to make an order prohibiting the publication of any name, report, or account of the evidence.

[27]   While JM’s claims before the Tribunal have been brought under the Privacy Act and not the HRA, pursuant to s 111 of the Privacy Act 2020, s 107 of the HRA applies to certain proceedings brought before the Tribunal under the Privacy Act, as if they were proceedings under the HRA.

[28]   An earlier and, until more recently, leading decision of the Tribunal on the approach to name suppression in proceedings before it is Director of Human Rights Proceedings v Commissioner of Police.4     In its decision, the Tribunal noted that      s 107(3)(b) had always been understood as conferring on the Tribunal the power to grant name suppression orders – even though the provision does not refer to these orders in express terms.5 The Tribunal then went on to survey a range of cases dealing with name suppression. It concluded that:6

… the approach that has been adopted to the exercise of the discretion in s.107(3)(b) of the Human Rights Act has been one that starts with the principles of open justice, freedom of speech and the right of the media to report judicial proceedings as described by the Court of Appeal in R v Liddell and Clark v Attorney-General (2004) 17 PRNZ 162. But where the interests of particular litigants outweigh those considerations, the Tribunal has been willing to make orders …

[29]   An earlier decision of this Court in relation to name suppression in the Tribunal is C v Director of Human Rights Proceedings.7 In this case, the Tribunal had declined to order name suppression in relation to the appellant. In dismissing the appeal against the Tribunal’s decision, this Court confirmed the general approach identified by the Tribunal in Direction of Human Rights Proceedings v Commissioner of Police.8 The Court noted:9

4      Director of Human Rights Proceedings v Commissioner of Police [2007] NZHRRT 5.

5 At [85].

6 At [89]. Footnotes omitted.

7      C v Director of Human Rights Proceedings, HC Auckland, CIV 2010-404-001662.

8      Director of Human Rights Proceedings v Commissioner of Police, above n 4.

9      C v Director of Human Rights Proceedings, above n 7, at [70].

… the starting point is publication is permitted. The question is whether in the circumstances of the particular case and on the evidence before the Tribunal, it is desirable that publication should be prohibited, in the sense that the considerations of openness in the proceedings before the Tribunal, the right of the media to report the result, freedom of speech and the impact of s 14 of the New Zealand Bill of Rights Act 1990 are outweighed in the particular case.

[30]   I pause to note that rather than publication simply being “permitted”, there is a positive statutory direction to the Tribunal that hearings before it are to be heard in public, and that non-publication is only permitted in certain prescribed circumstances.

[31]   These earlier decisions were, however, delivered prior to the Supreme Court’s decision in Erceg v Erceg, the leading New Zealand authority on non-publication orders in civil proceedings.10

[32]   In Erceg v Erceg, the applicant sought orders prohibiting the publication of information relating to the identity of trust beneficiaries and amounts distributed to them. The orders were sought on the grounds that publication would increase disharmony in the wider family, as well as create concerns for the personal safety of beneficiaries and trustees. The Court ultimately declined to grant such orders after finding that the requisite high standard had not been met to justify a departure from the general rule of open justice. In doing so, the Supreme Court confirmed that New Zealand courts have the inherent power to make non-publication orders in civil proceedings that are binding on the public at large.

[33]   The Supreme Court began its discussion of the relevant principles by addressing the significance of the principle of open justice. The Court said:

[2] The principle of open  justice  is fundamental to  the common law  system of civil and criminal justice. It is a principle of constitutional importance, and has been described as “an almost priceless inheritance”. The principle's underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. Open justice “imposes a certain self-discipline on all who are engaged in the adjudicatory process — parties, witnesses, counsel, Court officers and Judges” …

10     Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310.

[34]   The Court went on to note that this principle necessitates that judicial proceedings are held in open court, accessible to the public, and available for the media to report on fairly and accurately. However, the Court acknowledged that it is also well established that there are circumstances in which the interests of justice require that the general rule of open justice be departed from, although that should only be to the extent necessary to serve the ends of justice.11

[35]   Against these statements of general principle, the Court in Erceg v Erceg stated that “…the party seeking the [non-publication] order must show specific adverse consequences that are sufficient to justify an exception to the fundamental rule, but agree that the standard is a high one”.12 It also endorsed McHugh JA’s statement in John Fairfax & Sons Ltd v Police Tribunal of New South Wales that a non-publication order was only valid “if it is really necessary to secure the proper administration of justice before it.”13 The Supreme Court emphasised that the phrase “proper administration of justice” must be construed broadly, so that it is capable of accommodating the varied circumstances of particular cases.14 The Court also approved of the explanation given by Kirby P in John Fairfax Group v Local Court of New South Wales for the exceptions to the fundamental principle of open justice, namely:15

The common justification for these special exceptions is a reminder that the open administration of justice serves the interests of society and is not an absolute end in itself If the very openness of court proceedings would destroy the attainment of justice in the particular case (as by vindicating the activities of the blackmailer) or discourage it in cases generally (as by frightening off blackmail victims or informers) or would derogate from even mor urgent considerations of public interest (as by endangering national security) the rule of openness must be modified to meet the exigencies of the particular case.

[36]   Turning to the particular facts of the case before it, the Supreme Court declined the application for non-publication orders. The Court found:16

11 At [3].

12     Erceg v Erceg, above n [10], at [13].

13     Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986), 5 NSWLR 545 (NSWCA), at 476, cited in Erceg v Erceg, above n 10, at [18].

14     Ibid.

15     John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 (NSWCA) at [141], cited in Erceg v Erceg, above n [10] at [18].

16 At [21].

(a)The mere fact that the proceeding dealt with matters that some family matters wished to keep private was insufficient to justify an order.

(b)If unfounded allegations were made against any beneficiaries or trustees during the hearing, the respondents would have an opportunity to counter those allegations. Any fair and accurate report of the proceedings would have to reflect such a response.

(c)The concerns raised about the safety and security of family members were not sufficiently grave to justify an order being made in this case.17

[37]   In Waxman v Pal, the Tribunal reconsidered the approach to name suppression in proceedings before Tribunal following the Supreme Court’s judgment in Erceg v Erceg.18 In doing so, the Tribunal highlighted that the word used in the text of s 107(3) is “desirable”, whereas the section heading refers to “special circumstances”. The Tribunal did not accept that the two terms were synonymous:

[47]  Generally,  in its reading and application of s 107(3)(b) the Tribunal  has not substituted “special circumstances” for “desirable”. In Director of Human Rights Proceedings v Commissioner of Police [2007] NZHRRT 5 at

[89] the Tribunal explained its approach as being one which starts with the principles of open justice, freedom of speech and the right of the media to report judicial proceedings. But where the interests of a particular litigant outweighs those considerations, the Tribunal has been willing to make orders. That approach was not challenged on appeal in Commissioner of Police v Director of Human Rights Proceedings (2007) 8 HRNZ 364 at [68] to [78].

[38]   The Tribunal went on to consider the relevance of the decision in Erceg v Erceg to the application of s 107(3), given that case concerned the courts’ inherent power to grant non-publication orders. The Tribunal concluded that suppression orders under Part 4 of the HRA will always be governed by s 107, read in the context of the purpose of the relevant legislation, but that the exercise of this “discretion” must be guided by principle.19 It therefore considered the relevance of Erceg v Erceg lay in its exposition

17 The Court did note that sufficiently grave safety concerns could justify an order. However, in this case, all that had occurred was that security consultants had been contacted because of the media interest in the family’s affairs.

18     Waxman v Pal [2017] NZHRRT 4.

19     At [62]–[63].

of those principles, which the Tribunal found were congruent with the relevant provisions of the HRA. The Tribunal stated:

[66] In summary (and at the risk of some repetition) the following principle points (they are not intended to be exhaustive) should be kept in mind when interpreting and applying s 107(1) and (3) of the Human Rights Act. It is these points which will assist the determination whether the Tribunal is satisfied that it is “desirable” to make a suppression order:

[66.1] The stipulation in s 107(1) that every hearing of the Tribunal be held in public is an express acknowledgement of the principle of open justice, a principle fundamental to the common law system of civil and criminal justice. The principle means not only that judicial proceedings should be held in open court, accessible to the public, but also media representatives should be free to provide fair and accurate reports of what occurs in court.

[66.2] There are circumstances in which the interests of justice require that the general rule of open justice be departed from, but only to the extent necessary to serve the ends of justice. This is recognised by s 107(1), (2) and

(3) of the Act.

[66.3] The party seeking the order must show specific adverse consequences that are sufficient to justify an exception to the fundamental rule. The standard is a high one.

[66.4] In deciding whether it is satisfied that it is desirable to make a suppression order the Tribunal must consider:

[66.4.1] whether there is some material before the Tribunal to show specific adverse consequences that are sufficient to justify an exception to the fundamental rule.

[66.4.2] whether the order is reasonably necessary to secure the proper administration of justice in proceedings before it. The phrase “the proper administration of justice” must be construed broadly, so that it is capable of accommodating the varied circumstances of individual cases as well as considerations going to the broader public interest.

[66.4.3] whether the suppression order sought is clear in its terms and does no more than is necessary to achieve the due administration of justice.

The Tribunal’s decision

[39]   The Tribunal first traversed the factual background to JM’s information requests of the Minister, before summarising the parties’ respective submissions. It then proceeded to summarise the law relating to permanent non-publication orders before the Tribunal.

[40]   The Tribunal referred to the Supreme Court’s decision in Erceg v Erceg, already discussed above. The Tribunal then turned to the Tribunal’s decision in Waxman, stating the approach adopted in that case would be followed in JM’s case. The Tribunal also referred to the discussion in Director of Proceedings v Brooks about what the term “desirable” means in s 107. The Tribunal observed “that discussion leads to a conclusion that in JM’s circumstances, a persuasive case will be required before the Tribunal can be satisfied it is desirable that the relevant HRA, s 107(3) exception be made”.20 The Tribunal also noted that, given it is required by s 3 of the HRA to apply the New Zealand Bill of Rights Act 1990 (NZBORA), it would be necessary to consider whether the suppression order sought by JM was a reasonable limitation on the NZBORA s 14 right to receive and impart information.

[41]Having considered the relevant authorities, the Tribunal then stated:

[23] We now proceed to consider whether [JM’s] submissions persuade us that without name suppression he and his witnesses will suffer specific adverse consequences sufficient to justify an exception to the fundamental rule of open justice and that such departure is necessary to serve the interests of justice.

[42]   The Tribunal summarised JM’s submission that there was a deliberate attempt by the Minister to avoid replying to his requests for personal information, and the nature of the Minister’s responses was such that it would be reasonable to conclude that information was held about him (and therefore he was a person of interest to the Minister/the NZSIS). The Tribunal stated that JM’s submissions in this regard were misplaced and were premised on an assumption that the Minister had not complied with his obligations under the Privacy Act. The Tribunal stated that while certain concessions had been made by the Minister, there was no evidence that there had been “blatant, numerous and repeated” breaches of the Privacy Act as asserted, noting that such allegations were to be considered and determined at the substantive hearing.

[43]   The Tribunal also referred to the Privacy Commissioner’s observations in a case note about “neither confirm nor deny” responses to Privacy Act requests, in which the Privacy Commissioner stated:21

20     At [20], referring to Director of Proceedings v Brooks (Application for Final Non-Publication Orders) [2019] NZHRRT 33.

21     Case note 219773 [2010] NZ Priv Cmr 25 (16 December 2010).

Section 32 enables the Service to uphold the integrity of its intelligence gathering function which relies on discretion and the keeping of confidence. Section 32 allows that work to continue by allowing the Service to be consistent in responses to both subjects of interest and subjects of no interest when requests for information are made to it.

(Emphasis added)

[44]   The Tribunal concluded “there is no evidence to support the assertion that the Minister must hold information about JM. Mere supposition does not suffice”.22

[45]   The Tribunal then addressed JM’s submission that his request for personal information to the Minister is “unique and unprecedented”, observing that there was no evidence to support the submission.23 The Tribunal went on to say:24

Secondly, [JM’s] arguments conflate the Minister potentially holding information about him (which is not admitted by the Minister) with [JM] being under surveillance and so perceived as a dangerous individual. The leap to such conclusion is not one that can logically be made.

[46]The Tribunal also said:25

[JM] has merely asked for his personal information and the Minister has given certain responses. There is nothing before the Tribunal to suggest that publicity given to [JM’s] case will draw any comparisons with the Christchurch Mosque or LynnMall attacks.

[47]   The Tribunal then assessed the alleged consequences for JM and others were permanent name suppression not to be granted. The Tribunal stated:

[36]      On the assumption, however, that he is identified as a person who has been brought to the attention of the Minister and so potentially viewed as a terrorist [JM] says he and his family would be shunned by society and he would become unemployable.

[37]      The only evidence to support these alleged specific adverse consequences are the affidavits from [JM] and [others], giving their views, as referred to in [12.3] and [13] above.

[38]      In relation to [JM’s] and [others’] views, mere belief has been held insufficient to grant permanent name suppression; see Waxman at [81]. In that case Drs Waxman and Pal submitted that publication of their names could reflect badly on their careers. The Tribunal declined name suppression on the

22 Tribunal Decision, at [30].

23 At [33].

24 At [34].

25 At [35].

basis that there was a conspicuous absence of evidence that any of the feared consequences could reasonably be expected to occur. The same applies in [JM’s] case.

[39]      Nevertheless, [JM] places reliance on Sandee Ryan v Auckland District Health Board (HC Auckland) CIV 2007-404-006177, 5 December 2008 (Sandee Ryan). In that case Associate Judge Doogue did grant permanent name suppression to a second defendant, a senior and respected surgeon, allowing that potential harm could be caused to that defendant if persons who learned of the allegations in the statement of claim mistakenly viewed them as statements of established fact. In that case the plaintiff had made a series of allegations in a document that had been filed in the Court, but which would never be tested. This was because the proceedings were discontinued by the plaintiff after the filing of a statement of defence which denied liability and gave particulars of the reasons why the initial allegations were misconceived.

[40]      This is not, however, [JM’s] situation. No allegations have been made against [JM]. There are no pleaded allegations which could cause him harm. Rather, as plaintiff, he is seeking permanent non-publication orders, not just before and during the substantive hearing but thereafter, irrespective of any decision reached by the Tribunal. Accordingly, Sandee Ryan does not assist [JM].

[48]   The Tribunal also dismissed JM’s submission that his employment is a financial asset that should be protected in the same way as trade secrets or commercially sensitive information, as discussed in Erceg v Erceg. The Tribunal concluded this section of its decision by stating:

[42] Overall, [JM’s] and [others’]  unsubstantiated belief that they will  suffer adverse consequences fails by a considerable degree to meet the high threshold of showing specific adverse consequences sufficient to justify an exception to the fundamental rule of open justice, as required for a permanent name suppression order.

(Emphasis added)

[49]   The Tribunal then considered JM’s submission that not granting permanent name suppression would frustrate the administration of justice, by having the “chilling” effect alleged. The Tribunal dismissed this stating:26

… as with [JM’s] other submissions, there are unsubstantiated leaps from an allegation that a request for personal information has not been correctly responded to, to being seen to be a person coming to the attention of the Minister, to being shunned as potentially a terrorist. We do not accept that publication of [JM’s] name will frustrate the administration of justice.

26 At [47].

[50]   As to JM’s argument there was no public interest in knowing his name in this case, the Tribunal observed that in other cases, there may be little or no legitimate public interest in knowing the name or identifying particulars of the parties, but as stated in Waxman:27

[84] There is no suggestion, however, that name suppression turns on whether there is a legitimate public interest in knowing the name or details of the parties. Rather, the principle emphasised by the Supreme Court in Erceg v Erceg is that the administration of justice must take place in open court accessible to the public and media representatives must be free to provide fair and accurate reports of what occurs in court.

[51]   The Tribunal concluded “in [JM’s] case, there is no evidence of any frustration to the administration of justice that would support a departure from the principle of open justice”.28

[52]   The Tribunal accordingly declined JM’s application for permanent name suppression.   It did, however,  make an interim  suppression order for a period of   21 days following its decision, to give JM time to consider the options available to him. Woolford J made a similar order in this Court, pending determination of JM’s application for judicial review.

The application for review

[53]   The first ground of review in JM’s statement of claim is styled “error of law”. It has a number of “sub-grounds”. The first (which for ease of reference I will refer to as “Ground 1(a)”) is that the Tribunal misapplied what is said to be the correct legal principles by failing to take into account that:

(a)JM was entitled to a presumption of innocence;

(b)JM is entitled as of right to make requests under the Privacy Act for information held by the Minister;

27     Waxman v Pal, above n 18; referred to in the Tribunal Decision at [49].

28 At [51].

(c)protecting JM’s identity would not cause any adverse consequences for the Minister or members of the public;

(d)although the public will be entitled to assume that JM is justified in protecting his personal interest and privacy, it was also more than probable that there would be adverse speculation by members of the public that JM was a person of interest to the Minister, or was engaging in activities or with groups potentially of interest to the NZSIS; and

(e)the Tribunal approached the application for permanent suppression on the basis there was an obligation on the applicant to prove serious adverse consequences in circumstances where there was an obvious and compelling inference of prejudice if a permanent suppression order was not made.

[54]   The matters referred to at (d) and (e) above are not properly characterised as considerations the Tribunal was required to take into account but failed to do so. Rather, they are more reflective of and therefore properly considered in conjunction with the remaining aspects of this ground of review, discussed further below.29

[55]   The second aspect of the error of law ground of review (Ground 1(b)) is framed as follows:

The Tribunal further erred in concluding that it was not open to assume that the Minister was holding information about him and his being under surveillance would lead to the conclusion that he was perceived as a threat to society or a “dangerous individual”.

[56]JM next alleges (Ground 1(c)) that:

The Tribunal further erred in stating at paragraph [35] that ‘there is nothing before the Tribunal to suggest that publicity given to [JM’s] case would draw any comparisons with the Christchurch Mosque or LynnMall attacks.

[57]   The statement of claim alleges that “Th[is] error arises because if JM was regarded by the Minister as a person of interest then there was a very real risk that

29     The suggested errors referred to at [38(d) and (e)] above were a focus of Mr Dale KC’s oral submissions.

comparisons would be drawn to terrorist attacks such as the Christchurch Mosque or LynnMall incidents”.

[58]The fourth aspect of the error of law ground of review (Ground 1(d)) is that:

The Tribunal further erred at paragraphs [36] – [38] in declining to find that there was a real likelihood of damage to [JM‘s] reputation and employment prospects, and because if [JM] was a person of interest he might be seen as a threat to society and/so was associated with extreme views.

[59]The fifth aspect of the error of law ground of review (Ground 1(e)) is that:

The Tribunal further erred at paragraph [47] in rejecting the submission that suppression of [JM’s] name will frustrate the interests of justice. That is because by simply seeking information about himself or individuals or groups posing a risk to national security held by the Minister [JM] faces the risk of increased publicity which would not have occurred but for his exercising the legal rights available to him.

[60]   Finally, the statement of claim alleges that the “Minister is not adversely affected by the granting of name suppression”, and “nor does the public have any legitimate interest in this issue until such time as JM’s application under the Privacy Act has been considered on its merits …”. These matters replicate that consideration referred to at [53(c)] above and so are not considered separately.

[61]   There is a second ground of review advanced, namely “unreasonableness”. It is alleged that the Tribunal’s decision was “manifestly unreasonable” because:

(i)By depriving [JM] of the benefit of name suppression the Tribunal frustrated the very purpose of bringing proceedings and which was to protect [JM’s] privacy.

(ii)The conduct of third parties is out of all proportion to the issue of whether [JM] was a person of interest.

(iii)The Minister would not be adversely affected by the granting of the order.

(iv)The interests of justice require that [JM’s] identity is protected.

[62]   Mr Dale KC, counsel for JM, did not address this ground of review in any substantive way in his written or oral submissions, and it will be apparent that in large measure, it overlaps with the error of law ground of review. As a result, both Mr Dale

and Ms Laurenson agreed at the hearing that the application for review turns on the first ground of review, error of law, which will be determinative of the second ground.

[63]I note that the second ground of review also states:

In the alternative, the Tribunal should have extended interim name suppression until such time as [JM’s] proceedings are concluded and subject to any further application [JM] would then be entitled to make in relation to permanent name suppression.

[64]   The Tribunal was not requested, however, to make a determination in relation to interim name suppression, and JM was clear in his materials before the Tribunal that he sought permanent name suppression (irrespective of the outcome of his proceedings before the Tribunal).30 It is therefore inappropriate for me to consider whether the Tribunal should have made an order for interim name suppression when there was no request made for such an order or, importantly, any decision of the Tribunal to that effect. Similar observations apply in relation to Mr Dale’s submission at the hearing before me that in the alternative, I should consider the present matter as if the application had been one for interim name suppression pending the conclusion of JM’s proceedings before the Tribunal. Again, it is not appropriate to determine an application for judicial review on the basis of a decision that was not actually made by the decision-maker. As I noted with Mr Dale, irrespective of the outcome of JM’s application for judicial review, it will remain open to JM to seek interim suppression orders before the Tribunal, and/or interim non-publication orders in relation to certain aspects of the evidence JM proposes to file. I should be clear that I am not suggesting that such applications should be made, or if made, ought to be granted. I express no view whatsoever on that. I am simply noting the limits of the present application for judicial review.

[65]I turn now to the issues for determination.

Is there a right of appeal from the Tribunal’s decision?

[66]   Appeals to this Court from proceedings in the Tribunal are governed by s 123 of the HRA, which relevantly provides:

30 See [20] above.

123    Appeals to High Court

(1)Where any party is dissatisfied with any interim order made by the Chairperson or a Deputy Chairperson under section 95, that party may appeal to the High Court against the whole or part of that order.

(2)A party to a proceeding under section 92B or section 92E may appeal to the High Court against all or any part of a decision of the Tribunal—

(a)      dismissing the proceeding; or

(b)      granting 1 or more of the remedies described in section 92I; or

(c)      granting the remedy described in section 92J; or

(d)      refusing to grant the remedy described in section 92J; or

(e)      constituting a final determination of the Tribunal in the proceeding.

…

(3)Where any party is dissatisfied with any decision of the Tribunal making a declaration under section 97, that party may appeal to the High Court against the whole or any part of that decision.

[67]   Although JM’s proceedings have not been brought under s 92B or s 92E of the HRA,31 pursuant to s 111 of the Privacy Act 2020, s 123 of the HRA applies to JM’s proceedings as if they were proceedings under the HRA. Accordingly, there is no dispute that s 123 applies to JM’s proceedings in the Tribunal. The dispute is, as noted, whether s 123 includes a right of appeal from a decision by the Tribunal not to grant permanent name suppression.

[68]   Mr Dale submits that there is either no right of appeal under s 123 against a decision not to grant permanent name suppression, or that the position is at least sufficiently unclear that JM’s failure to exercise any right of appeal should not be relevant to his application for judicial review. The parties agree that if a right of appeal does exist, the relevant statutory provision is s 123(2)(e).

[69]   Mr Dale argues that s 123(2)(e) does not confer a right of appeal, being directed to the Tribunal’s final determination of the proceeding. He submits that s 123(e) “contemplates all of the issues being resolved and at the same time”, or in other words,

31     [JM’s] proceedings are brought before the Tribunal pursuant to s 98 of the Privacy Act 2020.

that s 123(e) only applies when the proceedings are “finally determined”, which is not yet the case here. Mr Dale further submits that the HRA does not contemplate multiple appeals which are final on a “piecemeal” basis, but which do not bring the proceedings to an end. Mr Dale also says that JM’s application should have been treated as an interim order, which would then have been expressly governed by s 123(1). He submits that this is consistent with it being undesirable to make a determination on a final basis without hearing all of the evidence and argument in the proceeding.

[70]   In support of her submission that s 123(e) does give rise to a right of appeal against a decision by  the  Tribunal  not  to  grant  permanent  name  suppression,  Ms Laurenson places particular emphasis on the reference in s 123(2)(e) to “a” final determination, that is, rather than “the” final determination. She also emphasises the use of the phrase “in the proceeding” rather than “of the proceeding”.

[71]   I accept Ms Laurenson’s submission that s 123(2)(e) confers a right of appeal against a decision of the Tribunal to make, or not make as the case may be, an order for permanent name suppression. I have reached this conclusion for the following reasons.

[72]   First, there is no dispute that, as Mr Dale submits, had the Tribunal made an interim suppression order, an appeal against that decision would have been available under s 123(1) of the HRA. That provision confers a right of appeal against interim orders made under s 95 of the HRA. Section 95 confers on the Chairperson or a Deputy Chairperson of the Tribunal the power to make interim orders in respect of “any matter in which the Tribunal has jurisdiction under this Act to make any final determination…”. That plainly includes the Tribunal’s jurisdiction to make non- publication orders under s 107 of the HRA. A decision of the Tribunal to grant or not to grant permanent name suppression is accordingly a “final determination” for the purposes of s 123(2)(e).

[73]   Second, the plain reading of s 123(2)(e) is consistent with there being a right of appeal in this case. Specifically, it refers to “a” final determination of the Tribunal “in” the proceeding. This suggests that there may be more than one final determination

made by the Tribunal “in” a proceeding. Had the provision been intended to apply only to “the” final determination “of” the proceeding, it would have said so.

[74]   Third, given there is a right of appeal against a decision to grant, or not grant, interim name suppression, it makes no sense for there to be no right of appeal against a decision to grant, or not grant, permanent name suppression. Ultimately, Mr Dale’s argument about the existence of a right of appeal is more to do with the timing of the Tribunal’s decision, that is, a final determination being made before determination of the substantive proceeding itself. I do not apprehend Mr Dale to suggest that if, in the context of resolving JM’s substantive proceeding, the Tribunal had declined an application to grant permanent name suppression, JM would not have a right of appeal against that decision.

[75]   The timing of the Tribunal’s decision in this case was, however, driven by JM’s application for permanent name suppression. I agree that many final determinations (including those in relation to permanent name suppression, or other similar permanent non-publication orders) will be made at the same time as, or following, the Tribunal’s final determination of the substantive proceeding. But as this case demonstrates, that will not always be so. I do not consider the availability of a right of appeal should turn on whether the Tribunal’s decision was made prior to, at the same time as, or following the Tribunal’s determination of the substantive proceeding. Most importantly, I do not discern anything in the text or purpose of s 123, or the broader scheme of the HRA, which drives such an arbitrary outcome.

[76]   On the basis therefore that there is a right of appeal against the Tribunal’s decision, it is not in dispute that JM is now out of time to file any such appeal. His application for judicial review was, however, filed within the statutory timeframe for filing an appeal.

[77]   As noted earlier, the Attorney-General does not suggest the fact there was an available appeal right renders JM’s application for judicial review an abuse of process. Rather, Ms Laurenson submits that the availability of the appeal right, which was not exercised, is a factor relevant to the Court’s discretion whether to grant relief, in the event any of JM’s grounds of review are made out. I accordingly consider the

implications of the appeal right when considering relief later in this judgment, should that become necessary. I merely observe at this stage that given the availability of a right of appeal, it would be the ordinary course to exercise that statutory right of appeal rather than to commence judicial review proceedings. And depending on the circumstances of the particular case, judicial review may be unavailable and/or not granted, given the right of appeal.32

Should JM be permitted to adduce further affidavit evidence on the judicial review application?

[78]   JM filed three affidavits in this proceeding – a lengthy substantive affidavit by himself, and two shorter affidavits sworn by others. All three affidavits are titled as being “in support of application for interim name suppression”, though I note that the two shorter affidavits were sworn and filed well after Woolford J made an interim suppression order in this proceeding. Further, JM’s statement of claim pleads that “the applicant has been subject to repeated and bizarre intrusions…” and then states, “further particulars are contained in the affidavit of the applicant filed in support of this proceeding and the further affidavit evidence to be filed”. The affidavits are therefore plainly relied on in support of the application for a judicial review itself, and not only the earlier application for interim name suppression.

[79]   Ordinarily, a court in judicial review proceedings will make its determination on the basis of the materials that were before the decision-maker at the time it made its decision.33 That makes sense, given the primary function of judicial review is an inquiry as to whether the decision-maker’s decision was lawful, rather than whether it was substantively right.

[80]   JM had a full opportunity to put his case on permanent name suppression to the Tribunal and did so, filing detailed and lengthy affidavits and submissions. I accordingly accept Ms Laurenson’s submission that the present application for judicial review is not an opportunity for him to improve on that material. Ultimately, Mr Dale

32 Attorney-General v Palmer HC Auckland CIV-2003-404-588, 16 July 2004, [2005] NZAR 46 (full HC) at [102]; Wislang v Medical Council of New Zealand CA 174/01, 4 March 2002, [2002] NZAR 573 (CA) at [31].

33 Marong v Attorney-General [2021] NZHC 3347 at [29]; Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 at 658.

did not press strongly for the admission of the evidence. He, quite rightly, in my view, acknowledged that there is a “limit to the extent to which the further evidence takes matters”. The evidence which JM filed in support of his application for judicial review is directed almost wholly to why JM believes he is the subject of surveillance/harassment. As noted earlier, determination of that factual issue is irrelevant to the issues I must determine. The evidence is therefore neither fresh nor cogent. I decline to admit it on the application for judicial review.

Analysis of JM’s grounds of review

Introduction

[81]   Before turning to the particular grounds of review, I make two preliminary points.

[82] First, as JM’s statement of claim makes clear, it is not suggested that the Tribunal adopted an incorrect test, or misinterpreted the test, for name suppression in the Tribunal. Rather, the alleged error lies in the Tribunal’s application of the correct legal principles. It is therefore not necessary for me to comment in detail on the legal principles applicable to name suppression in the Tribunal. It is sufficient to say that, subject to the point made at [84] below, I consider the Tribunal’s decision in Waxman reflects the correct approach to applications for non-publication orders in the Tribunal.

[83]   I would only emphasise that the Supreme Court’s decision in Erceg v Erceg concerned the courts’ inherent power to make non-publication orders, whereas non- publication orders in the Tribunal are governed by the statutory standard of such an order being “desirable”. That must always be the touchstone for a decision on name suppression or other non-publication order. That said, there is no doubt that the general principles articulated in Erceg v Erceg will be highly relevant to, and of assistance in, determining whether it will be “desirable” to make a non-publication order in any given case. But as noted in Waxman, the principle points the Tribunal directed should be “kept in mind” when applying s 107 of the HRA (clearly drawn from Erceg v Erceg) were not intended to be exhaustive.34

34     Waxman, above n 18, at [66].

[84]   Second, the Tribunal’s decision in Waxman refers to the “discretion” to make non-publication orders under s 107(3) of the HRA.35 I do not consider that a decision by the Tribunal to make or not to make a non-publication order is purely discretionary. Rather, and analogous to the approach to name suppression under s 200 of the Criminal Procedure Act 2011, s 107(3) of the HRA envisages a two-stage approach:

(a)the first is whether the Tribunal is satisfied that a non-publication order is “desirable”, being a threshold issue; and

(b)second, if the threshold for non-publication is made out, whether the Tribunal should nevertheless make a non-publication order (given the statutory language that the Tribunal “may” make a non-publication order if considered desirable to do so).36

[85]   Whether or not the Tribunal is satisfied that it is desirable to make a non- publication order is an evaluative exercise; it is not an exercise of discretion. It is only at the second-stage that the Tribunal’s discretion is enlivened.  Both  Mr Dale and  Ms Laurenson agreed that s 107(3) involves this two-stage approach. Both also agreed that the Tribunal did not reach the second discretionary stage in this case, given it was not satisfied that the threshold for making a permanent name suppression order had been made out. While nothing turns on this approach in the present case, I mention this two-stage approach as the nature of the decision being challenged (that is, whether it is an evaluative or discretionary decision, or both) will be relevant to the proper approach to appeals against, or applications for judicial review of, decisions made pursuant to s 107 of the HRA.

[86]   I turn now to the grounds for review. The submissions in support of JM’s application for statutory review were not tied to the pleaded grounds of review. Given an application for judicial review is framed by the pleadings (as is the case in any civil

35 At [63].

36 In much the same way as s 200(2) of the Criminal Procedure Act 2011, pursuant to which “the  court may make an order under subsection (1) only if the court is satisfied that publication would be likely to …” (emphasis added). See D (CA443/2015) v Police [2015] NZCA 541, (2015) 27 CRNZ 614 for a discussion about the two-stage approach to name suppression under s 200.

proceedings before this Court),37 I will address JM’s submissions by reference to his pleading.

Ground 1(a) – failure to take into account mandatory relevant considerations

[87] A decision will only be susceptible to judicial review on the basis the Tribunal failed to take into account mandatory relevant considerations, rather than simply failed to take into account relevant considerations. In this case, however, to the extent that a factual or other matter is relevant to whether or not it is “desirable” to make a suppression order, it will be a mandatory relevant consideration. As discussed at [83] above, what is relevant in any given case cannot be the subject of an exhaustive list. Obvious examples include the principle of open justice; the suggested consequences of there not being a suppression order; the evidence put before the Tribunal about those suggested consequences; the likelihood of the suggested consequences coming to pass; the inferences that can be properly drawn from the materials before the Tribunal; and the implications for the proper administration of justice.

[88]I am satisfied that this ground of review is not made out.

[89]   First, in relation to the failure to take into account that JM is entitled to the presumption of innocence, this allegation is misplaced. The concept of the presumption of innocence arises when a person is charged with a criminal offence and is, as a matter of law, entitled to the protection offered by the presumption.

[90]   JM is not charged with any criminal offending. Indeed, no allegations are made against him at all. Accordingly, the presumption of innocence is not a mandatory relevant consideration. Further and in any event, the Tribunal was alive to the fact and took into account that JM does not face allegations of a criminal or civil nature, expressly recording that fact at [40] of its decision.

37 The Court of Appeal in Yan v Mainzeal Property and Construction Ltd (in liq) re-emphasised the importance of pleadings, and that claims are to be assessed against the pleaded case: Yan v Mainzeal Property and Construction Ltd (in liq) [2021] NZCA 99, [2021] 3 NZLR 598 at [493]– [494].

[91]   I am similarly not persuaded that the fact JM is entitled as of right to make requests under the Privacy Act is a mandatory relevant consideration to whether an application for permanent name suppression ought to be made. No submissions were made on JM’s behalf as to why this would be a mandatory consideration. Nevertheless, it is plain from the Tribunal’s decision that it was aware of JM’s right to make the Privacy Act requests he did and took that into account. There is no suggestion anywhere in the Tribunal’s decision that JM did not have the right to make the requests or that they were improper.

[92]   In relation to the alleged failure to take into account that protecting JM’s identity would not cause any adverse consequences for the Minister or members of the public, the Tribunal took these considerations into account (assuming, for present purposes, they are mandatory relevant considerations). The Tribunal specifically addressed JM’s argument that there was no public interest in his name being published.38

Grounds 1(b) to (d) – general comments

[93]   The thrust of JM’s remaining grounds of review collapse into the proposition that the Tribunal made a demonstrable error of law when concluding that he had not shown a risk of reputational damage to him and/or anyone else were permanent name suppression not to be granted, or had not shown a risk sufficient to justify an exception to the principle of open justice. Mr Dale emphasised in his oral submissions that rather than looking for evidence of the alleged adverse consequences, it was open to the Tribunal to draw, and it should have drawn, an inference that such consequences would come to pass.

[94]   The Court of Appeal’s reminder in Chorus v Commerce Commission as to what will and will not give rise to an error of law is helpful in the context of these aspects of JM’s submissions.39 The Court stated:40

38 See [48] to [49] of the Tribunal’s decision.

39     Chorus Ltd v Commerce Commission [2014] NZCA 440 at [112]. See also Discount Brands Ltd v Northcote Mainstreet Inc [2004] 3 NZLR 619 (CA) at [58].

40 At [112].

… it is not the role of the Court in an appeal on a question of law to undertake a broad reappraisal of the Commission’s factual findings or the exercise of its evaluative judgments. Care should also be taken to avoid a technical and overly semantic analysis of the Commission’s determination in an endeavour to create a question of law. In making factual findings it is for the Commission, and not the Court, to decide what weight should be given to the relevant evidence and what inferences, if any, should be drawn from the evidence. An inference must be logically drawn from proven facts and not be mere speculation and guesswork. At the same time, as counsel for the Commission acknowledged, if the Commission has made a factual error that makes its application of the statutory provisions “unsupportable” it will have erred in law.

[95]   Accordingly, the Court should take care before intervening in the Tribunal’s factual findings, or exercise of evaluative judgement. That includes the inferences the Tribunal did or did not draw from the evidence and other materials before it.

[96]   Two further points arise. First, I accept Mr Dale’s submission that aspects of the Tribunal’s decision, at first blush at least, suggest that it reached the conclusions it did because JM had not put before it credible and reliable evidence that the suggested adverse consequences would come to pass were name suppression not granted.41 I agree with Mr Dale that, in many cases there will not be actual evidence of the suggested consequences. More often than not the exercise will involve whether it is appropriate to infer from the materials that are before the Tribunal that such consequences will arise. Again, using the criminal jurisdiction by way of example, the Court will often need to conclude whether it is open on the materials before it to infer that there is a real possibility of extreme hardship to a defendant were name suppression not to be granted; or whether it can be inferred that there is a real risk to a defendant’s fair trial rights were a defendant’s name to be published. As the Court of Appeal noted in Chorus Ltd v Commerce Commission, an inference “must be logically drawn from proven facts and not be mere speculation and guesswork.”42

[97]   I am satisfied, however, that the substance of the Tribunal’s decision demonstrates that it engaged in the necessary evaluative exercise, and consideration of what inferences, or conclusions, could logically be drawn from the materials and evidence before it. So, for example, the Tribunal observed that “mere supposition”

41 See, for example, [30], [33], [37], [42] and [51] of the Tribunal’s Decision.

42     Chorus Ltd v Commerce Commission, above n 39, at [112].

about whether the Minister holds information about JM is not sufficient;43 that “the leap to such a conclusion is not one that can logically be made”;44 that “mere belief” is not sufficient to grant name suppression;45 and that “as with JM’s other submissions, there are unsubstantiated leaps from an allegation that a request for personal information has not been correctly responded to, to being seen as a person coming to the attention of the Minister, to being shunned as a potential terrorist”.46 When read as a whole, it is clear that the Tribunal did not consider it could logically infer from the materials before it that the suggested adverse consequences to JM and/or anyone else would arise were name suppression not granted.

[98]   Second, I note the Tribunal prefaced its discussion of JM’s submissions by the observation that:

We now proceed to consider whether [JM’s] submissions persuade us that without name suppression he and his witnesses will suffer specific adverse consequences sufficient to justify an exception to the fundamental rule of open justice and that such departure is necessary to serve the interests of justice.

(Emphasis added)

[99]   It is not the case that Tribunal should only grant permanent name suppression where it is satisfied specific adverse consequences will eventuate. In many cases, it is unlikely that the evidence will demonstrate, or inferences can logically be drawn, that there is either no risk at all of the relevant consequences arising, or that they will arise as a matter of certainty. Rather, the Tribunal will need to assess the nature of the consequences said to arise in the absence of name suppression being granted, the likelihood of them arising, and whether those matters justify an incursion into the fundamental principle of open justice. A helpful approach would be to consider whether the suggested adverse consequences could reasonably be expected to occur, being the approach adopted in Waxman, and ultimately also adopted by the Tribunal in this case.47 Such an approach is consistent with that taken in criminal proceedings,

43 At [30].

44 At [34].

45 At [38].

46 At [47].

47   At [38], stating “[In Waxman] the Tribunal declined name suppression on the basis that there was a conspicuous absence of evidence that any of the feared consequences could reasonably be expected to occur. The same applies in JM’s case”. (Emphasis added)

where the adverse consequences relied on must be “likely” to arise,48 which the courts have interpreted as meaning that there is a “real and appreciable possibility” of the particular consequence arising.49

Ground 1(b) – the Tribunal erred in concluding it was not open to assume the Minister was holding information about him

[100]  The precise content of this ground is somewhat unclear and was not addressed specifically in JM’s written submissions. I proceed on the basis that JM’s argument is that by providing a “neither confirm nor deny” response, and/or given the nature of the Minister’s various other responses to his Privacy Act requests, it can be reasonably expected that members of the public will assume the Minister does hold information about JM, leading them to conclude that he is or may be a person of interest to the Minister, and thus perceived as a threat to society.

[101]  I am not satisfied that the Tribunal erred. First, I do not consider the Tribunal erred in reaching the view that JM’s arguments conflate the Minister potentially holding information about him (which is not admitted) with JM being under surveillance and so is perceived as a dangerous individual. As the Tribunal observed, “the leap to such a conclusion is not one that can logically be made”.50 It rests on an assumption that publication of JM’s name in connection with the proceedings, and the Minister’s “neither confirm nor deny” response and/or his other responses to JM’s requests, would somehow imply that the Minister does hold information about JM, and that on this basis, JM must be under surveillance (rather than JM simply believing that to be so), and that he is therefore a dangerous individual.

[102]  In my view, it was open to the Tribunal to conclude that these were not logical inferences that could be drawn, or at the very least, any risk in this regard was not sufficient to make it desirable to make a permanent name suppression order. As the Tribunal observed, “[JM] has merely asked for his personal information and the Minister has given certain responses”.51 Even if the Tribunal were to find that the Minister did breach certain Privacy Act obligations, it does not logically follow that

48     Criminal Procedure Act 2011, s 200(2).

49     Stuff Ltd v R [2021] NZCA 86, (2021) 29 CRNZ 658, at [17].

50 At [34].

51 At [35].

JM must be or is likely to be a person of interest to the NZSIS, or that it can be reasonably expected that members of the public will come to that conclusion. Rather, the logical inference from that finding would be that in responding to JM’s Privacy Act responses, the Minister didn’t always get it right.

[103]  As  to  the  Minister’s  “neither  confirm  nor   deny”  response,  I  accept   Ms Laurenson’s submission that publication of the fact that JM made various requests for information under the Privacy Act from the Minister, and that the Minister responded, in part, with a “neither confirm nor deny” response, will be readily understood by members of the public as simply what it is: namely a response available to the Minister under the Privacy Act, which is consistent with the nature of the entity for which the Minister is responsible.

[104]  Privacy Act requests and responses of this nature were considered by the Privacy Commissioner in a case note issued in May 2017.52 The Commissioner confirmed that the Government Communications Security Bureau had provided a “neither confirm nor deny” response to 88 percent of the Privacy Act requests it received. Additionally, while the NZSIS did not, at least at that time, keep statistics on the number of such responses it makes, it had analysed information over a six month period and confirmed that it had given such a response in 50 percent of cases. The Commissioner, under the heading “the takeaway for complainants” stated:53

A complainant should not necessarily draw a negative conclusion if the Privacy Commissioner considers a “neither confirm nor deny” response to avoid prejudice to security or defence is not an interference with privacy. This finding does not confirm that any information about the complainant is, or is not, held by the Service or Bureau. Nor does it confirm that the complainant is considered to present a risk to security. It simply confirms that, in our view, s 32 has been correctly applied in the circumstances and we agree with its application.

It can be unsettling for people to receive a “neither confirm nor deny” response to an access request. However, in cases such as these where we have not upheld the complaint and the information sought has not been provided, a complainant can take some comfort from the fact the decisions of the Service and the Bureau have been independently reviewed by the Privacy Commissioner and found not to be contrary to the Privacy Act.

(Emphasis added)

52     Case note 284416 [2017] NZ PrivCmr 5.

53     At 2.

[105]  Mr Dale submits that the likelihood of the specific adverse consequences JM relies on being borne out are bolstered by the affidavit evidence which he submits provides a credible foundation for concluding that JM is under surveillance/the subject of harassment by some agency or organisation. The argument is presumably that members of the public being aware of the nature of the proceedings, and JM’s evidence, will more readily conclude he is a person of interest to the Minister.

[106]  I repeat the point made earlier, however, that evidence of the alleged surveillance/harassment does not appear to be relevant to the Privacy Act breaches JM has alleged and which the Tribunal will need to determine. Rather, the alleged breaches turn on the Tribunal’s assessment of JM’s requests for information from the Minister, and the Minister’s responses to them, measured against his obligations under the Privacy Act.

[107]  Nevertheless, assuming that JM chooses to adduce detailed evidence of what he believes to be the surveillance/harassment of him, I proceed on the basis that a summary of those factual matters may be recorded in the Tribunal’s decision. Even in those circumstances, however, I do not consider that the Tribunal’s evaluation of the materials before it was unsupportable. The Tribunal will not be making any factual findings as to whether JM is or is not under surveillance. Again, I consider it was open to the Tribunal to conclude that there is no real risk of those who might become aware of the proceedings, concluding from the nature of the proceedings and evidence that might be filed by JM, that he is a person of interest to the Minister.

Ground 1(c) – the Tribunal erred in concluding that there was nothing before the Tribunal to suggest that publicity given to JM’s case would draw any comparisons with the Christchurch Mosque or LynnMall attacks

[108]This ground gives rise to similar issues discussed under Ground 1(b) above.

[109]  JM submits that the error arises because “if” [JM] was regarded by the Minister as a person of interest, then there was a very real risk that comparisons would be drawn to terrorist attacks such as the Christchurch Mosque or LynnMall incidents.

[110]  I accept that if it could reasonably be expected that, in the absence of a suppression order, it would be assumed by those becoming aware of the proceedings that JM is regarded by the Minister as a person of interest, there is a risk that comparisons would be drawn to terrorist attacks of the nature referred to. However, this ground of review is again premised on an assumption that there is a real risk that, absent a suppression order, JM, would be understood to those who might become aware of the proceedings as being regarded by the Minister as a person of interest. For the same reasons discussed under Ground 1(b), it was open to the Tribunal to conclude that the assumption inherent in this ground does not logically follow from the nature of the proceedings before it.

Ground 1(d) – the Tribunal erred in declining to find that there was a real likelihood of damage to JM’s reputation and employment prospects were permanent name suppression not to be granted

[111]  This alleged error is also premised on the assumption that “if [JM] was a person of interest he might be seen as a threat to society and/so was associated with extreme views”.54

[112]  Like the grounds of review discussed earlier, this ground also relies on the proposition that it is reasonable to expect that members of the public who become aware of the proceedings will conclude that JM is or may well be a person of interest to the Minister. Again, I am satisfied that it was open to the Tribunal to decline to draw such an inference.

Ground 1(e) – The Tribunal further erred in rejecting the submission that suppression of JM’s name will frustrate the interests of justice.

[113]  JM argues that not granting name suppression will frustrate the interests of justice because “by simply seeking information about himself or individuals or groups posing a risk to national security held by the Minister, [he] faces the risk of increased publicity which would not have occurred but for his exercising the legal rights available to him.”

54 Statement of claim, at [18].

[114]  Again, I do not consider the Tribunal made an error of law in rejecting JM’s arguments in this regard.

[115]  There is no suggestion that merely by bringing the proceedings, JM will be subject to increased publicity; indeed, there are no materials before the Court that suggests that the proceedings have attracted any publicity to date. Further, and like JM’s earlier grounds, this ground rests on the assumption that merely by bringing the proceedings, JM is at risk of being viewed as a person of interest to the Minister. I have addressed above why it was open to the Tribunal to reject this chain of logic.

[116]  Further, JM’s arguments as to the alleged “chilling” effect of name suppression not being granted relies on the proposition that, in the absence of permanent name suppression, those wishing to challenge the Minister’s response to Privacy Act requests will not do so. Other than JM’s own suggestion that he may not continue his proceeding in the absence of name suppression, I do not consider that this is a logical inference that can be drawn. Nor was any evidence put before the Tribunal to support such a conclusion. Further, the corollary of JM’s approach would be that the mere fact a person brings Privacy Act proceedings against the Minister responsible for the NZSIS justifies permanent name suppression. That cannot be right. Each case must be considered on its merits. Further, the authorities are clear that name suppression is not justified simply because commencing proceedings might bring with it embarrassment or unwelcome scrutiny.55 As Kirby P, as he then was, explained in John Fairfax Group v Local Court of New South Wales:56

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms: … A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.

55     See for example, Erceg v Erceg, above n 10, at [13].

56     John Fairfax Group v Local Court of New South Wales, above n 15, at 142-143, referred to with approval by the Supreme Court in Erceg v Erceg, above n 10, at [14].

[117]  Standing back, the evaluative judgements made by the Tribunal were well open to it on the evidence and materials before it, and there is accordingly no error of law justifying intervention by way of judicial review. As acknowledged by Mr Dale at the hearing, that conclusion must similarly follow in relation to Ground 2, unreasonableness.

Result

[118]JM’s application for judicial review is dismissed.

[119]  The parties are to confer on costs. Absent agreement, the Minister may file a costs memorandum within 15 working days of the date of this judgment. JM may file a costs memorandum within a further 10 working days. No memorandum is to be longer that five pages in length. Unless I needed to hear further from counsel, I will then determine costs on the papers.

Fitzgerald J

Solicitors:        KooTelle Lawyers, Auckland

Crown Law, Wellington

To:                 P Dale KC, Auckland