A v MINISTER OF INTERNAL AFFAIRS [2018] NZHC 2890

A v MINISTER OF INTERNAL AFFAIRS [2018] NZHC 2890 [7 November 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-485-000032[2018] NZHC 2890UNDER the Judicature Amendment Act 1972 andPart 30 of the High Court RulesIN THE MATTER OF an application for judicial review of thesuspension and cancellation of a passportBETWEEN AApplicantAND MINISTER OF INTERNAL AFFAIRSRespondentHearing: 26 October 2018Appearances: The applicant in person (by telephone)AL Martin and GM Taylor for RespondentBJR Keith, Special AdvocateJudgment: 7 November 2018RESERVED JUDGMENT OF DOBSON J[1] The majority of Court-related activity in this proceeding in recent months hasnecessarily been conducted in closed court, requiring directions and decisions by meto be reflected in closed court minutes and judgments.[2] On 19 September 2018, after numerous exchanges involving closed courthearings and the filing of memoranda, I directed that a summary of the classifiedsecurity information (CSI) in a form that I had approved was to be served on theapplicant and the special advocate.1 In the course of exchanges with Crown counsel1 The procedure is provided for in s 29AB(2) of the Passports Act 1992.and the special advocate about the unclassified summary, I had also approved thespecial advocate's proposal to convey to the applicant his assessment of matters ofpotential relevance that, on his view, had been entirely omitted from therecommendation made to the Minister on which the decision to cancel the applicant'spassport was made. The special advocate prepared such a document and, after vettingby Crown Law to be satisfied it did not make reference to CSI, that has also beenprovided to the applicant.[3] Since those steps, the applicant has filed a memorandum dated 24 October2018. That memorandum complains of inadequacies in the unclassified summary,which the applicant treats as fundamentally insufficient, both in form and content. Theapplicant sought a direction that Crown Law provide a paragraph by paragraphsummary of the briefing paper that had been presented to the Minister. The applicant'smemorandum also sought directions as to an appropriate form by which she could seekclarification of matters referred to in the unclassified summary. In addition, theapplicant requested a direction that Crown Law respond to Mr Keith's statement ofomissions from the recommendation to the Minister.[4] The applicant also supported initiatives being taken by the special advocate toexpedite further discovery by the respondent that I have directed should occur. (Iaddress that matter at [28] to [35] below.) The applicant also supported Mr Keith'sinitiative to seek cross-examination of the NZSIS deponent as an aspect of challengingthe certificate as to CSI status of the documents involved.[5] The special advocate has pursued initiatives intended to assist the applicant byprocuring disclosure to the applicant of more of the detail of information held abouther. The requisite certificate under s 29AA(5)(c) of the Passports Act 1992 (the Act)was completed by the Director-General of NZSIS in February 2018. The specialadvocate challenged its validity and sought an order that it be set aside. The essenceof the grounds for that application is that it is inadequately justified on the facts andhas been completed on a basis that reveals an error of law as to the considerations thatneed to be taken into account before the certificate as to CSI status of documents couldbe so certified.[6] To advance the first of those grounds, Mr Keith sought leave to cross-examinethe officer from NZSIS. That officer has now completed three affidavits addressingthe grounds for requisite belief by the Director-General that the documents involvedare indeed CSI.[7] In addition, Mr Keith sought further directions as to how the respondent is tocomply with my direction to provide further discovery. Mr Keith complained of a lackof progress and inadequacy in the form in which Crown Law is proposing to providefurther discovery of a category of documents I had earlier identified as having potentialrelevance.[8] On 26 October 2018, I convened both closed and open court hearings. In theclosed court hearing, I heard argument on Mr Keith's application for leave to cross-examine the NZSIS deponent, as well as incomplete submissions on how the furtherdiscovery on behalf of the respondent ought properly to occur.[9] In the open court hearing, I heard from the applicant, attending by telephonefrom overseas, on her criticisms of the perceived inadequacy of the unclassifiedsummary. She complained that it is entirely inadequate to enable her to prepare achallenge to the grounds relied on by the decision maker. She was also critical of theextent to which discovered documents that are not withheld entirely as CSI have beenprovided to her in redacted form to an extent that deprives the disclosed content of anymeaningful sense. The applicant pressed for directions to help her preparation on thematters I have described above.[10] Against the contingency that further time was required, either for cross-examination of the NZSIS deponent or for other developments in the case,arrangements had been made for a further closed court hearing on 30 October 2018.Shortly after completion of the 26 October 2018 hearing, I issued a closed courtinterlocutory judgment confirming that I would grant leave for cross-examination ofthe NZSIS deponent, and outlining my reasons for doing so. The following paragraphs[11] to [19] reproduce my reasons from that closed court judgment, edited only inminor respects to remove any possible references to CSI.[11] Mr Keith's application characterised the evidence from the NZSIS as lackingcandour. In oral submissions, he was at pains to emphasise that this was not intendedto infer any lack of good faith. Rather, the responses to challenges about claims tosensitivity of the techniques deployed in gathering information about the applicantwere so patently inadequate as to lead to either the requirement for further explanationor exposing the respondent to the less satisfactory option of having adverse inferencesdrawn against the stance described in the evidence.[12] The respondent opposed the application for leave to cross-examine, citinginitially the reluctance the courts generally have to allow cross-examination ofdeponents in a judicial review. Mr Martin cited Wild J's decision in Edwards v Toimewhere the extent of reluctance to allow cross-examination was qualified.2 Thejudgment acknowledged the then recent edition of Wade's Administrative Law on theoccurrence of disputed questions of fact arising in judicial review, where the learnedauthors observed:3The correct rule, it is submitted, is that stated by Lord Diplock that cross-examination should now be allowed whenever the justice of the case sorequires, and on the same basis as in ordinary proceedings.[13] Applications for leave to cross-examine generally arise where an applicantwishes to challenge affidavit evidence on the course of preparation of, or reasons for,the substantive decision being challenged. That is not the situation here. The specialadvocate is advancing concerns to minimise the unfairness to the applicant in havingto respond to adverse statements about her, the detail of which she does not know. InEdwards, Wild J treated it as clear that leave will be granted "where cross-examinationis necessary to dispose of the case fairly".4 Making every allowance for the statutorilyimposed limits on fairness in the present circumstances, a potentially important aspectof fairness arises in my task in being satisfied of the desirability of allowing unilateraluse of CSI.2 Edwards v Toime (No 1) [2005] NZAR 140 (HC).3 H W R Wade and C F Forsyth Administrative Law (8th ed, Oxford University Press, Oxford, 2000)at 268, cited in Edwards v Toime, above n 2, at [21] (citations omitted).4 At [21].[14] Mr Martin did acknowledge that cross-examination on limited questions hadbeen allowed in somewhat similar circumstances in Zaoui v Attorney-General.5 Thatproceeding comprised a judicial review of an interlocutory decision of the Inspector-General of Intelligence and Security. The applicant sought to cross-examineMr Woods, the Director of Security, on an affidavit in support of the impugneddecision. Cross-examination was sought to test the credibility of information that hadbeen relied on. Leave was granted because of the potential relevance of challenges tothe accuracy of that information. The present circumstances are different in that thedeponent sought to be cross-examined has not explained the substantive decision thatis under challenge, but rather the justification for the certificate for CSI.[15] Further, Crown counsel submitted there was a lack of utility in testing furtherthe grounds for belief on the part of the Director-General about the nature of risks thatwould arise from disclosure of the information, including in particular the techniquesdeployed in obtaining it. This was because the Director-General's opinion on theexistence of risks under s 29AA(5) was arguably determinative. Opposition was alsomaintained because Crown counsel did not conceive of any prospect of the Courtsetting aside the certificate. Such a step is seen as being outside the procedurescontemplated by the Act.[16] I was not persuaded that consideration of striking out the Director-General'scertificate is either necessary or appropriate in further testing the extent to which theclaim for CSI ought to be respected. The Court's supervisory role in this respect isthat specified in s 29AB(1) of the Act, namely I must be satisfied that it is desirable toallow closed court procedures for hearing CSI in order to protect it as such.[17] Mr Martin submitted that the status and use of the CSI is now settled becauseI have approved the terms of the unclassified summary of the CSI that has been servedon the applicant under s 29AB(2) of the Act. Even if this were not the first case dealingwith the procedure under ss 29AA and 29AB of the Act, I would perceive the taskunder s 29AB(1) as an evolving one, not necessarily at an end when the Court hasapproved a summary of the CSI for service on the applicant. The sequence of steps in5 Zaoui v Attorney-General (No 2) (2003) 7 HRNZ 279.preparing the applicant's judicial review for substantive hearing has also beendisrupted by my initiative in directing the respondent to provide further discovery ofdocuments that were available to those preparing the recommendation for the Minister,but not referred to the Minister when the challenged decision was made. It would beinappropriate to preclude further matters being raised by the special advocate that ariseout of that additional discovery, so far as it may impact on the appropriate scope towhich CSI should be protected.[18] In this case, material issues remain unanswered. It is preferable, and moreefficient for the Court, to afford the deponent an opportunity of explaining these issuesthan the rather more unwieldy process of assessing whether an adverse inference isjustified.[19] The purpose for such cross-examination does not extend to considering anystriking out of the certificate in a formal sense. The scope of documents andinformation for which that status is claimed by the Director-General is not the directissue for the Court. Rather, it is the extent to which the Court is prepared to find itdesirable to protect its status, in terms of how such documents and information areused in the proceeding.Desirability of protecting CSI[20] Thorough cross-examination on topics I had accepted as relevant occurred,with limited re-examination by Mr Martin, on 30 October 2018. After the evidence, Iheard submissions from counsel as to whether the extent of risks to prejudicing theinterests specified in s 29AA(7) of the Act that were made out were sufficient for meto be satisfied that it was desirable to receive the CSI as such for its protection. Thatis an assessment required of the Court under s 29AB(1). There is a legal issue as tothe approach the Court should adopt under s 29AB(1), the terms of which are asfollows:629AB Proceedings involving classified security information(1) If information presented or proposed to be presented by the Crown inany proceedings to which section 29AA applies includes classified6 Emphasis added.security information, the court must, on a request for the purpose bythe Attorney-General and if satisfied that it is desirable to do so forthe protection of (either all or part of) the classified securityinformation, receive or hear (the part or all of) the classified securityinformation in the absence of—(a) the person in respect of whom the decision concerned wasmade; and(b) all barristers or solicitors (if any) representing that person; and(c) members of the public.[21] The specifics of the cross-examination and the factual aspect of Mr Keith'ssubmissions as to why I could not be so satisfied is necessarily dealt with in a closedcourt judgment, to be issued contemporaneously. Some of the submissions testing thejustification for the CSI certificate touched on matters that have been argued at earlierstages, and which were dealt with in my June 2018 judgment.7 On the approach to thetest of desirability of protecting the CSI, Mr Keith submitted that the Court cannot beblind to the unfairness of unilateral admission of documents. The concern to minimiseunfairness arguably required the test of desirability of protection of the information tobe applied from that perspective. Mr Keith reminded me that in the United Kingdom,in cases involving an equivalent closed court procedure, if particular items ofclassified information cannot be gisted, then it is presumptively unfair. To the extentthat some of the documents certified by the Director-General as CSI cannot bedescribed for the applicant, even in a gisted form, then Mr Keith argued that unfairnesshas to go to the relative extent of the desirability of protecting its CSI status.[22] After further argument in July 2018 on the determinative status of a CSIcertificate, my judgment of 19 July 2018 acknowledged limited circumstances inwhich the decision on the terms of a certificate as to CSI status might be judiciallyreviewable.8 As an alternative to his direct challenge to the validity of the CSIcertificate, Mr Keith invited me to apply a rigorous standard to assessing thedesirability of protecting the documents for which CSI had been certified, by applyingthe approach he contended for.7 A v Minister of Internal Affairs [2018] NZHC 1328.8 A v Minister of Internal Affairs [2018] NZHC 1797 at [6]–[15].[23] For the Crown, Mr Martin disputed that the assessment of desirability couldinvolve any balancing of the applicant's interests so as to minimise the extent ofunfairness. He submitted the narrower task for the Court under s 29AB(1) was torecognise a need for protection of the CSI to an extent that it is desirable to respectthat status for its protection. He submitted that, in carrying out this task, the Courtshould be mindful of the legislative concern that has justified an extraordinaryexception to the basic rules of natural justice that are of fundamental importance in theconduct of judicial proceedings. He submitted that the nature of proceedings underthe Act is different from law enforcement in criminal proceedings of any sort. Theclosed court procedure under the Act will apply in civil appeals or judicial review withnone of the protections justifiably required in criminal procedure.[24] On the Crown view, the decision under challenge by way of judicial review orappeal will not have impinged on the applicant or appellant's liberty. Cancellation ofa passport is a more limited intrusion into an individual's rights, applies only for afinite period, and comes with the prospect of judicial supervision by way of appeal orjudicial review. Mr Martin submitted that the concerns raised in a number of the casescited by Mr Keith are not present in the context of judicial review or appeal. Thelimited nature of the infringement of rights was emphasised by Mr Martin in this casewhere the period for which the applicant's passport was cancelled has now longexpired, and she is free to apply again for a New Zealand passport.[25] On the Court's approach to the desirability assessment required unders 29AB(1), I am not persuaded that any balancing of interests can occur. Mr Keithwould have the Court take into account the relative extent of unfairness caused to anapplicant or appellant in having to prepare his or her case without having a particulardocument for which CSI status is certified, or a reasonable gist of the document. Therelevant words in s 29AB(1) contemplate an assessment only of the relativeimportance (desirability) of protecting the CSI. The section does not contemplate anycomparison of that relative importance against the extent of impediment to preparationof the applicant/appellant's cases.[26] Parliament has proscribed the exceptional procedure and I remain of the viewthat it needs only to make out a relatively low level of concern in the sense that it isless than necessary for the Court to be appropriately satisfied that it is desirable toprotect the CSI status of the information that has been certified as such by the head ofthe relevant agency. The focus must be on the desirability from the Court's perspectiveof protecting the CSI. Sections 29AA and 29AB are structured on the assumption thatthe protection afforded by CSI status is as effective as could be procured in enablingthe grounds for the Minister's decision to be adequately explained to the Court.[27] I have applied that approach in dealing with the specific grounds of challengeargued by Mr Keith after I had heard the evidence of the NZSIS deponent. I deal withmy judgment on that challenge in a closed court judgment issued only to Crowncounsel and the special advocate. The effect of that closed court judgment is that I amsatisfied, in terms of s 29AB(1) of the Act, that it is desirable to protect the CSI ascertified by the Director-General.Further discovery for the respondent[28] My 19 July 2018 judgment included the following direction for discovery ofdocuments and information that was available to the officer or officers compiling therecommendation for the Minister, but which were not put to the Minister:9[18] The broader definition of relevant documents that I have suggested inthis case may not always apply. In this case, the most efficient way of dealingwith it is for Crown Law to provide discovery to Mr Keith on an informalbasis, with a view to counsel agreeing the documents within the widercategory that would be relevant to argument in the case, and the extent towhich they are appropriately covered by CSI status.[29] In giving that direction, I failed to apprehend the nature and extent ofdocuments held by the NZSIS that have some potential relevance to the views formedabout the applicant when the relevant recommendation was made to the Minister. Forreasons explained by Mr Martin, NZSIS and Crown Law perceive there to be a rangeof difficulties in complying with my direction. Substantial time would be involved incompleting the tasks.[30] Crown Law's attempts to begin the process of disclosure have drawn a numberof criticisms from Mr Keith. I agree with him that beginning the informal process of9 A v Minister of Internal Affairs, above n 8.affording him access to them by lists of the names of documents which give no realindication of their content is not helpful.[31] Mr Martin explains the lack of progress is due to the cumbersome nature of thetask as I have imposed it, and the very limited resources available to undertake thevetting.[32] I am also mindful that the applicant expressed concern at the lack of progressin the special advocate being able to assess additional documents that might reflectinformation held by the NZSIS that was inconsistent with the recommendation madeto the Minister.[33] The options for proceeding with informal discovery on any variant of the modeI contemplated when making my original direction for it would involve time and costthat I am satisfied would be disproportionate to the potential relevance and relativeimportance of any documents with potential exculpatory content such as Icontemplated. I maintain that view notwithstanding the applicant's submission thatattempts to truncate this stage of the proceeding would be "belittling andunjustifiable". Proportionality is an important consideration in all judicial reviewproceedings, and necessarily influences the directions to get the substantiveapplication to hearing.[34] After hearing from counsel, I was satisfied that an alternative procedure isneeded to address the prospect as originally raised by me. I accordingly agreed withcounsel to replace the previous direction for discovery on an informal basis with afocused sequence of Court-supervised questions of the officers who were responsiblefor drafting and presenting the recommendation to the Minister. Those questions areto be posed of each of the officers responsible for drafting and presenting therecommendation in the following terms:• In the course of your work in preparing or presenting the recommendationto the Minister, did you become aware of any information that mightpossibly have been treated by the Minister as exculpatory of conduct thatwould otherwise be held against the applicant, but which was notacknowledged or referred to in the recommendation?• If the answer to the first question is yes, please identify each of thedocuments containing such information.[35] To the extent that the answers from the officers identify relevant documents,then they are promptly to be provided to Mr Keith by means of informal discovery inthe first instance. To the extent that any of the documents contain content, thedisclosure of which would require the consent of other agencies, the remainder of suchdocuments are to be provided in redacted form to Mr Keith. Consent for the verylimited disclosure that would attach to documents subject to a CSI certificate is to besought as a matter of priority from the agency or agencies involved.Response to Mr Keith's "matters omitted" document[36] Mr Keith sought a direction that Crown Law be required to provide a specificrejoinder to the list of matters which he considers have not been referred to in therecord put to the Minister. During the hearing on 30 October 2018, I was providedwith a copy of the list as conveyed to the applicant.[37] Thus far, in confirming the unclassified status of the content so it could becopied to the applicant, Crown Law has done no more than reserving its position interms that it does not agree with Mr Keith's characterisation of what has been omitted,and also reserving its position as to the presumed relevance of the items listed.Mr Keith criticises the limited nature of that response as unhelpful. He sought adirection that Crown Law be required to specify whether the matters he has identifiedas omitted are, in the view of the respondent, referred to and, if so, where in thematerials that were put to the Minister. Further, if relevance is disputed, then a briefindication of why that is so.[38] Among Mr Keith's motives for pressing for this is that he foresees the prospectof defining a separate question of law for prior determination. If, for example,Crown Law accepts that a particular matter he has listed was not addressed in therecommendation to the Minister, but which he contends is a relevant mandatoryconsideration, then a separate confined argument on the point might lead to successon the applicant's judicial review without the need to traverse the remaining, moreextensive grounds.[39] In the open hearing on 26 October 2018, the applicant also sought such adirection for a response in the nature of a pleading from the respondent to aid herunderstanding of the scope of issues likely to arise in her application for judicialreview.[40] I indicated my lack of enthusiasm for any separate argument of questions oflaw, in any circumstances such as those that Mr Keith instanced. Quite apart fromconcerns of proportionality and the need to procure orderly finality in the judicialreview as soon as reasonably possible, I would take some convincing that whatappeared to be a discrete question of law could be adequately argued in isolation fromthe factual matrix and combined issues of fact and law that will also arise. I wastherefore not prepared to direct anything more than a reply on behalf of Crown Lawas to whether matters perceived as omitted were, in the respondent's view, in factaddressed in the record put before the responsible Minister, but no more.Privacy of communications between the applicant and the special advocate[41] Mr Keith sought assurances on the extent to which the applicant would beprotected if she elects to traverse factual matters with him in circumstances where, ifit was a solicitor/client relationship, the communications would be privileged for allpurposes. At an earlier stage of the proceeding, I acknowledged that the specialadvocate/applicant relationship is not one covered by solicitor/client privilege, withsome risk that it may also not be one covered by litigation privilege.[42] To the extent there is a doubt about the application of the second form ofprivilege, I have previously indicated my view that such communications should berespected as covered by litigation privilege, given the purpose of that privilege and theunusual position occupied by a special advocate participating in a proceedinginvolving the closed court procedure.[43] Mr Keith sought confirmation that New Zealand agencies other than theNZSIS, in particular GCSB and the Police, who are not directly involved in thisproceeding, would be required to respect the privilege and not attempt to intercept andmake any use of any communications the applicant elects to have with him aboutmatters arising in the proceeding.[44] Mr Martin's rejoinder on behalf of the respondent is to confirm that the NZSISdoes respect the communications as protected by litigation privilege, or its equivalent.He was not in a position to speak for other agencies. Without full argument on thepoint, the preferable view appears to be that the applicant can avail herself of theprivilege for preparatory materials for proceedings in s 56(2)(a) of the Evidence Act2006. That addresses the exclusion of any such communications from materials thatwould be admissible in any proceedings in New Zealand.[45] I direct Crown Law to give notice to any government agencies that may takean interest in communications between the applicant and the special advocate that theCourt treats all such communications as covered by the s 56 privilege or, if necessary,its common law equivalent recognised to meet the exigencies of the present litigation.Consequently, the content of such communications would be inadmissible inproceedings of all types in New Zealand and retention of a record of suchcommunications, once their character was confirmed as coming within that I havedescribed, would be improper.[46] Mr Keith also requested that the NZSIS be required to clarify the position withpartner organisations in Australia. I am not prepared to make any direction which I donot consider could ever have effective force.Summary[47] I am unable to accept Mr Keith's approach to interpretation of the test unders 29AB(1) of the Act. There is no scope for balancing the relative extent of unfairnessto an applicant for judicial review in such closed court proceedings, against thedesirability of protection of the CSI. I will be issuing a closed court judgmentcontemporaneously with this one, addressing the specifics of Mr Keith's challenge toCSI status claimed for various categories of information.[48] I have amended the process for provision of further discovery by therespondent. I direct that the officers involved should address the prospect ofpotentially exculpatory materials not provided to the Minister by responding toquestions posed of them (see [34] above).[49] As to a requirement for a Crown Law response to Mr Keith's "matters omitted"document, Crown Law is required to do no more than specify whether it agrees thateach of the matters listed were indeed omitted.[50] I address Mr Keith's concerns for the privileged status of any communicationson factual matters conveyed to him by the applicant.[51] No issues as to costs need to be addressed at this stage on the steps consideredin this judgment.Vetting[52] As with previous open judgments issued in this proceeding, the terms of thisjudgment have been referred to the relevant security agency for confirmation that itsterms do not make any references to CSI that could be of concern to them.Dobson JSolicitors:Crown Law, Wellington for respondentCopy to:The applicantSpecial Advocate, BJR Keith, Wellington