A v MINISTER OF INTERNAL AFFAIRS [2018] NZHC 1797

A v MINISTER OF INTERNAL AFFAIRS [2018] NZHC 1797 [19 July 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-485-000032[2018] NZHC 1797UNDER 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: 16 July 2018Counsel: AL Martin and KG Stone for respondentBJR Keith, Special AdvocateJudgment: 19 July 2018RESERVED INTERLOCUTORY JUDGMENT OF DOBSON J[1] This open judgment deals with certain matters heard in the closed courtargument on 16 July 2018, and with the applicant's request for suppression ofallegations as advanced in her memorandum dated 18 July 2018.Closed Court argument on 16 July 2018[2] I address below generic issues about the Court's powers in the process involvedin such proceedings. I will contemporaneously be issuing a closed court minute toCrown Law and the special advocate, confirming the arrangements settled at the endof the hearing for the next steps that are to occur in this judicial review.[3] The argument I heard included the following matters:• the process for vetting claims to classified security information (CSI) statusunder ss 29AA and 29AB of the Passports Act 1992;• the process for discovery by the Crown of documents beyond those reliedon in the report to the Minister of Internal Affairs (the Minister) in relianceon which the cancellation decision being challenged was made;• the appropriate content of the unclassified summary of the CSI to beprovided to the applicant.[4] I had read and have considered the applicant's memorandum of 20 June 2018and her submissions of 11 July 2018 and reflected on the matters raised by her in lightof the argument I heard.[5] Counsel agreed that the involvement of a special advocate changes the optionsavailable for working through the interlocutory processes. Notwithstanding that thereis no provision in the statute for such involvement, it is appropriate to adapt theprocedures as contemplated in the statute to take into account the special advocate'sinvolvement to the extent that can ameliorate some of the difficulties in dealing withCSI.Vetting claims to CSI status[6] In my 7 June 2018 judgment, I described the Court's role in the followingterms:1[13] The Court's role is not to vet the reasonableness of the grounds for thehead of the security agency to certify that the information qualifies as CSI.Certification of any information as CSI reflects the view of the head of therelevant agency, as provided in s 29AA(5)(c). The Court's task is to besatisfied that receiving and considering the CSI in the absence of the affectedperson and anyone acting for them is desirable for the protection of all or partof the CSI. The Court is also tasked with approving a summary of the CSI.1 A v Minister of Internal Affairs [2018] NZHC 1328.[7] I accepted the Crown's contention that it remains in control of information forwhich the head of a security agency has claimed CSI status. I treated the Court's roleas assessing the desirability of withholding the CSI for its protection.2[8] The applicant's recent submissions implicitly treat the Court's powers insupervising disclosure of documents as extending to a power to reject claims by thehead of the security agency to CSI status. In his most recent submissions, the specialadvocate has invited reconsideration of circumstances that were not addressed in my7 June 2018 judgment. In particular, Mr Keith suggested a limited range ofcircumstances in which the Court's supervisory role arguably extends to questioningthe justification for a claim to CSI status. This could arise where:• there was no evidence of circumstances justifying a view that theinformation was of the kind specified in s 29AA(6);• there was no evidence that disclosure of the information would be adisclosure of the kind specified in s 29AA(7); and• it was apparent that the claim to CSI status had been made in respect of thewhole of a document without consideration being given to redacting thoseparts that did contain information of the kind specified in s 29AA(6) butproviding disclosure of the balance of the document that inarguably did notcontain such information.[9] Mr Keith submitted that the task for the head of the specified agency in formingan opinion on whether CSI status applied necessarily involved the prospect of partialredactions, by analogy with the obligations required when a Prime Minister'scertificate is relied on to claim public interest immunity from disclosure. In Choudryv Attorney-General, in rejecting as inadequate a certificate by the Prime Ministerlodged with the Court as the basis for a claim for public interest immunity, one aspectof the inadequacy found by the Court of Appeal was that the certificate did not state2 At [40], [41] and [43].why appropriate editing would not be sufficient to protect the security interestsinvolved.3[10] The circumstances contemplated in my 7 June 2018 judgment assumed that adecision by a security agency to withdraw CSI when a difference arose as to the extentto which it needed to be described to an applicant in an unclassified summary of itwould involve an impairment to the Crown's defence of the challenged decision. Thiswas because the information sought to be protected was presumed to be supportive ofthe recommendation that cancellation of the passport was warranted, but the need toprotect the secrecy of that information outweighed the need to include it as part of theevidence justifying the challenged decision.[11] In those circumstances, there is presumptively a pressure on the Crown tominimise the extent to which it withdraws CSI, so as to maximise the evidencejustifying the impugned decision.[12] However, the factors influencing a decision to withdraw CSI could be quitedifferent if the document in question contains exculpatory material that would assistthe applicant/appellant. Mr Keith did not raise the spectre of bad faith or impropermotive in a decision made under sch 2, cl 8 of the Passports Act 1992 to withdraw theCSI where withholding a document would deprive the applicant/appellant of access toinformation that could strengthen his or her case. However, that is among the rangeof conceptual possibilities that might arise.[13] Mr Martin accepted that his analysis of the process advanced at the last hearingdid not cater for prospects such as the Court being concerned that a claim to CSI statusfor a document helpful to an applicant/appellant was made wholly or partly to frustratethe challenge to the impugned decision.[14] Mr Keith submitted that any certificate reflecting the opinion of the head of thespecified agency issued under s 29AA(5)(c) amounts to the exercise of a statutorypower and, in the absence of any privative provision, is judicially reviewable. Heaccepted as a matter of context that a high threshold would need to be reached before3 Choudry v Attorney-General [1999] 2 NZLR 582 (CA) at 596.a judicial review challenge could be mounted to such a certification, but in limitedcircumstances such as those he reviewed he nonetheless argued that the Court retaineda supervisory jurisdiction to review the lawfulness of the exercise of that power.[15] I am persuaded that there may be limited exceptions to the process under whichthe Crown remains in control of the scope of information for which CSI status isclaimed, and the subsequent withdrawal of such information in the event of adifference of view with the Court about the extent to which it should be described inan unclassified summary of the CSI. It is unnecessary at this point to attempt anydefinition of the limited exceptions where an applicant for review or appellantchallenging a decision to cancel that person's passport might challenge the lawfulnessof the certification decision. The limited circumstances described above are possibleexamples.Discovery process for wider categories of documents[16] In my 7 June 2018 judgment, I acknowledged that in some cases a wider rangeof documents than those that were presented to the Minister in support of therecommendation that a passport be cancelled would be relevant and therefore arelikely to be discoverable. I also observed, without the point being the subject of anysubstantial argument, that the process for protecting the secrecy of such widercategories of document by certifying them as CSI where appropriate would alsoapply.4[17] Mr Martin suggested that imposing a discovery obligation in the wider terms Ihad contemplated by attributing relevance to all documents and information that wasavailable to the officer or officers compiling the recommendation for the Ministercould create logistical concerns. In some cases, that breadth of information might leadto substantial volumes of information requiring extensive vetting, and then potentiallyextensive analysis to facilitate the formation of an opinion by the head of the specifiedagency in providing a certificate as to the status of part or all of it as CSI. Difficultiescould also arise where listing in an affidavit of documents of itself involved the spectreof disclosures entitled to protection under s 29AA(5).4 A v Minister of Internal Affairs, above n 1, at [47] and [48].[18] The broader definition of relevant documents that I have suggested in this casemay not always apply. In this case, the most efficient way of dealing with it is forCrown Law to provide discovery to Mr Keith on an informal basis, with a view tocounsel agreeing the documents within the wider category that would be relevant toargument in the case, and the extent to which they are appropriately covered by CSIstatus.[19] I confirm that that process should occur on the basis that any documentdiscovered as being relevant on the broader definition I have proposed is covered bythe procedure provided for in s 29AA(5). That would mean that if, by virtue of itscontent and circumstances of acquisition, the document potentially comes withins 29AA(6) and (7), it can be the subject of a certificate under s 29AA(5)(c).Appropriate content of the unclassified summary of CSI[20] In exchanging views on the scope of the appropriate content of the unclassifiedsummary of CSI, Messrs Martin and Keith adopted different approaches to whetherthe summary should include observations on the absence of matters which theapplicant might have expected to be addressed. Mr Keith proposed that the summaryshould include such acknowledgements of omitted matters that could arguably berelevant to a fully reasoned recommendation on cancellation of an applicant'spassport.[21] For the Crown, Mr Martin objected to any content by way of commentary onwhat was not included. Any such commentary would fall outside the statutorydefinition of a summary of the information that is being withheld. As a practicalconsideration, the Crown might reasonably resist the implication of relevance thatcould arise if the special advocate proposed a statement about the absence of aparticular consideration when the Crown wished to reserve its position on therelevance of that matter.[22] At least in the context of the present case, I am not persuaded that the summaryshould include any such commentary.[23] Instead, I have invited counsel to liaise on the basis that Mr Keith prepare aseparate document commenting on the matters he wishes to draw to the applicant'sattention that, on his view of relevance, might be expected to have been addressed butwhich were not. Any such summary would need to be vetted against the prospect thatthere is inadvertent reference to CSI in it. Once that has occurred the legitimatepurpose for such comments as raised by Mr Keith would be appropriately conveyedto the applicant without the Crown being imputed with any acceptance of the allegedrelevance of matters that were omitted.[24] In my contemporaneous closed court minute I am setting a timetable forprogressing these interlocutory processes and will address further issues as they arise.Applicant's request for suppression of the nature of allegations against her[25] By memorandum dated 18 July 2018, the applicant has sought a suppressionorder to prevent any publication of the nature of the allegations that were put to andpotentially relied on by the Minister in making the decision to cancel her passport in2016. The request is supported by an affidavit completed by the applicant whichdescribes the level of interest that she anticipates is likely to be generated by ajudgment in the proceedings, on the basis of her experience thus far.[26] The application does not need to be dealt with in relation to remaininginterlocutory steps in the proceedings. My contemplation is that any futureinterlocutory hearings will be necessarily closed court ones and I can ensure that noreferences are made in any open judgments that become appropriate to the nature ofthe allegations that were put to the Minister. Any open judgments will necessarily bedealing with matters in generic terms.[27] It is premature to confirm the scope of any suppression orders that will applyto the Court's substantive judgment. The balancing of the public interest in openjustice against the legitimate personal interests of a litigant likely to be substantiallyharmed by publication of matters traversed in the proceeding should only beundertaken in light of the outcome.[28] Accordingly, the applicant's concerns will not arise prior to the substantivehearing. I direct that the substantive judgment is to be suppressed on its initial issue,which will be restricted to counsel and the parties and the applicant will be affordedan opportunity to renew the application for suppression in light of the outcome at thattime.Process for delivery of this judgment[29] I am satisfied that no CSI is apparent from the terms of this judgment.Nonetheless, to comply with the protocol governing such proceedings I have had theCourt custodian offer to provide it first only to the security agencies to afford them anopportunity to satisfy themselves on that point. That offer has been declined and thejudgment is accordingly being issued in the normal way.Dobson JSolicitors:Crown Law, Wellington for respondentCopy to:The applicantSpecial Advocate, BJR Keith, Wellington