A v MINISTER OF INTERNAL AFFAIRS [2018] NZHC 1328

A v MINISTER OF INTERNAL AFFAIRS [2018] NZHC 1328 [7 June 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2017-485-000032[2018] NZHC 1328UNDER 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: 2 May 2018Counsel: AL Martin and KG Stone for respondentBJR Keith, Special AdvocateJudgment: 7 June 2018RESERVED JUDGMENT OF DOBSON JContentsIntroduction ....................................................................................................................................... [1]The statutory process .......................................................................................................................[11]The Crown's approach to CSI ........................................................................................................ [14]Grounds for questioning reliance on CSI status ........................................................................... [23](i) Sceptical approach .............................................................................................................. [24](ii) Who may claim CSI status and obligations to seek consent to disclose .............................. [25](iii) Propositions counting against recognition as CSI .............................................................. [27](iv) Duty of utmost good faith .................................................................................................... [33]Analysis ............................................................................................................................................ [40]Duty of utmost good faith ............................................................................................................. [44]A rigorous test .............................................................................................................................. [51]Who may claim CSI status and obligation to seek consent to disclose ......................................... [54]Information sourced from the affected person .............................................................................. [57]Information publicly available ..................................................................................................... [60]Reliance on warrants and information sharing arrangements ..................................................... [63]Supervision of the unclassified summary ...................................................................................... [70]Summary .......................................................................................................................................... [81]Delivery of this judgment ............................................................................................................... [85]Introduction[1] This proceeding is an application for judicial review challenging the lawfulnessof decisions by the Minister of Internal Affairs to suspend, and then cancel, theapplicant's New Zealand passport.[2] In responding to the claim, Crown Law has given notice that the case involvesclassified security information (CSI) as defined in s 29AA of the Passports Act 1992(the Act).1[3] In proceedings involving CSI, the Act provided a procedure by which the CSIwould be conveyed to the Court. The procedure precluded any CSI being conveyedto the person challenging the cancellation of the passport (the affected person) orlawyers acting for that person.[4] In April 2017, I dealt with a range of arguments advanced by the applicant thatthe closed court procedure which excluded her from access to CSI should not apply to1 The provisions relevant to this proceeding have subsequently been amended. Section 29AA nowcontains a slightly modified definition of CSI and the provisions enabling the Minister to suspend,cancel, refuse to issue or refuse to renew a passport are now found in ss 27GA and 27GE. To theextent that there are differences in drafting between those provisions, they are not relevant to thearguments discussed in this judgment.her judicial review proceeding. I held that the closed court procedure would apply tothe proceeding, to the extent the Court was satisfied that it was desirable for theprotection of the CSI.2 The applicant lodged an appeal against my decision, but it wassubsequently deemed to be abandoned.[5] Since my April 2017 judgment, I have appointed special advocates to assist theCourt by advancing any arguments they consider might avail the applicant inchallenging the Minister's decision. I have also supervised a timetable for me and thespecial advocates to be given access to all documents certified by the head of thesecurity agency to contain CSI.3[6] The special advocates and I were given access to all the documents claimed tocontain CSI on 28 February 2018. Counsel for the Minister provided a summary ofreasons why CSI status was claimed for the documents and I adjourned that hearingto enable me, and separately the special advocates, to consider the detail of thedocuments in issue.[7] After an initial assessment of the documents, the special advocates requestedtime to undertake more detailed analysis, and to prepare arguments challenging theclaim to CSI status in respect of some of the relevant documents. I directed Crowncounsel to liaise with the special advocates to clarify matters that might arise inassessing the documents.[8] A number of relatively fundamental differences have arisen over the nature ofobligations involved. These range from the responsibilities of the officers preparing arecommendation for the Minister to suspend or cancel a passport, through to anyobligations imputed to the Minister in confining the extent of information for whichCSI status is claimed, the standard required to justify CSI status and the nature of theCourt's task in testing the claimed justifications.2 A v Minister of Internal Affairs [2017] NZHC 746, [2017] 3 NZLR 247.3 The special advocates appointed were FMR Cooke QC and BJR Keith. Mr Cooke ceasedinvolvement on the announcement of his appointment as a Judge of this Court and the issues dealtwith in this judgment were the subject of submissions prepared and presented by Mr Keith.[9] These issues have been considered in respect of analogous procedures bysenior appellate courts in the United Kingdom and Canada, but have not thus far beenaddressed in New Zealand. Rulings are now required to deal with the matters raisedby the special advocate, and to provide guidance in other cases. Further, it isappropriate to explain to the applicant, in as much detail as possible, the scope ofarguments necessarily heard in her absence.[10] I deal with the issues in this judgment in generic terms without reference to thearguments arising from the documents in issue in this proceeding, which wouldotherwise preclude the general publication of this judgment. Mr Keith canvassed whathe perceived to be a full range of contingencies and it should not be assumed that anyof the particular issues arise in considering the documents in this case.The statutory process[11] Section 29AA of the Act contains the following definition of CSI:429AA Proceedings where national security involved(5) In this section and sections 29AB and 29AC, classified securityinformation means information—(a) relevant to whether there are or may be grounds for believingthat—(i) the person concerned is a danger to the security ofNew Zealand because the person intends to engage inor facilitate, an action or matter of a kind referred toin sections 4A(1)(a), 8A(1)(a), 20A(1)(a), 25A(1)(a),27B(1)(a), and 27E(1)(a); or(ii) a refusal to issue the New Zealand travel documentconcerned, or to cancel or retain the New Zealandtravel document concerned, will prevent oreffectively impede the ability of the person to carryout or facilitate the action or matter concerned; or(iii) the danger to the security of New Zealand cannot beeffectively averted by other means; and4 As it applied at the relevant time.(b) held by an intelligence and security agency (as defined insection 4(1) of the Terrorism Suppression Act 2002) or by theNew Zealand Police; and(c) that the head of the specified agency, or the New ZealandPolice, certifies in writing cannot be disclosed except to theextent provided in section 29AB because, in the opinion ofthe head of the specified agency,—(i) the information is information of a kind specified insubsection (6); and(ii) disclosure of the information would be disclosure ofa kind specified in subsection (7).(6) Information falls within subsection (5)(c)(i) if it—(a) might lead to the identification of, or provide details of, thesource of the information, the nature, content, or scope of theinformation, or the nature or type of the assistance oroperational methods available to the agency or the Police; or(b) is about particular operations that have been undertaken, orare being or are proposed to be undertaken, in pursuance ofany of the functions of the agency or the Police; or(c) has been provided to the agency or the Police by theGovernment of another country or by an agency of aGovernment of another country or by an internationalorganisation, and is information that cannot be disclosed bythe agency or the Police because the Government or agencyor organisation by which the information has been providedwill not consent to the disclosure.(7) Disclosure of information falls within subsection (5)(c)(ii) if thedisclosure would be likely—(a) to prejudice the security or defence of New Zealand or theinternational relations of the Government of New Zealand; or(b) to prejudice the entrusting of information to the Governmentof New Zealand on a basis of confidence by the Governmentof another country or any agency of such a Government, orby any international organisation; or(c) to prejudice the maintenance of the law, including theprevention, investigation, and detection of offences, and theright to a fair trial; or(d) to endanger the safety of any person.[12] Under s 29AB(1), if the Crown is proposing to present CSI in a relevantproceeding and the Attorney-General requests the Court to receive CSI in the absenceof the affected person (as well as anyone acting on behalf of that person and membersof the public), the Court must do so if it is satisfied that it is desirable for the protectionof the CSI. Where that procedure is used, the following provision also applies:29AB Proceedings involving classified security information(2) Without limiting subsection (1),–(a) the court must approve a summary of the information of thekind referred to in section 29AA(5) that is presented by theAttorney-General except to the extent that a summary of anyparticular part of the information would itself involvedisclosure that would be likely to prejudice the interestsreferred to in section 29AA(6) or (7); and(b) on being approved by the court (with or without amendmentsdirected by the court in accordance with paragraph (a)), acopy of the statement must be given to the person concerned.[13] The Court's role is not to vet the reasonableness of the grounds for the head ofthe security agency to certify that the information qualifies as CSI. Certification ofany information as CSI reflects the view of the head of the relevant agency, as providedin s 29AA(5)(c). The Court's task is to be satisfied that receiving and considering theCSI in the absence of the affected person and anyone acting for them is desirable forthe protection of all or part of the CSI. The Court is also tasked with approving asummary of the CSI.The Crown's approach to CSI[14] The Crown's approach to dealing with CSI gives primacy to maintaining itssecrecy. It was important to Mr Martin's analysis that the Crown retains control overthe CSI in all circumstances. Whilst the Court may not be satisfied as to thedesirability of withholding the information from the affected person for the protectionof the CSI, that does not compel disclosure. In that event, the Crown can elect towithdraw so much of the information as is not accepted by the Court as validlywithheld from the affected person. The Crown would then defend the challengeddecision without reliance on those components of the CSI. The provision, as it appliedat the time, was in sch 2, cl 8(2) to the Act, in the following terms:58 Proceedings where national security involved(2) With respect to section 29AA, if a decision, which may be made atany time, is made to withdraw any classified security information,—(a) the classified security information—(i) must be kept confidential and must not be disclosedby the court; and(ii) must be returned to the relevant agency; and(b) the court must continue to make the decision or determine theproceedings—(i) without regard to that classified security information;and(ii) in the case of an appeal or a review of proceedings, asif that information had not been available in makingthe decision subject to the appeal or review.[15] The provision in s 29AB(2) for the Court to approve a summary of the CSI istreated by the Crown as ameliorating, to whatever extent is possible, the imperative towithhold the CSI. However, protection of the CSI remains because the summarycannot contain any information which would involve disclosure likely to prejudice theinterests defined in s 29AA(6) and (7) as set out at [11] above.[16] On this construction of the statutory provisions, Mr Martin submitted thatParliament has clearly satisfied itself that the limits on disclosure of informationrelevant to a decision in such cases are justified. This arguably strikes the appropriatebalance between maintenance of the right to a fair hearing for those involved, and theneed to maintain the secrecy of CSI. Mr Martin emphasised that this balance is amatter for Parliament, citing acknowledgement of this by Lord Phillips for the Houseof Lords in litigation involving a similar procedure in Secretary of State for the HomeDepartment v AF (No 3):65 A provision to the same effect is now found in s 29AB(4A) of the Act.6 Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269.[63] There are, however, strong policy considerations that support a rulethat a trial procedure can never be considered fair if a party to it is kept inignorance of the case against him. [64] The best way of producing a fair trial is to ensure that a party to it hasthe fullest information of both the allegations that are made against him andthe evidence relied upon in support of those allegations. Where the evidenceis documentary, he should have access to the documents. Where the evidenceconsists of oral testimony, then he should be entitled to cross-examine thewitnesses who give that testimony, whose identities should be disclosed. Bothour criminal and our civil procedures set out to achieve these aims. In somecircumstances, however, they run into conflict with other aspects of the publicinterest, and this is particularly the case where national security is involved.How that conflict is to be resolved is a matter for Parliament and forgovernment, subject to the law laid down by Parliament. [17] Because Parliament has prescribed the procedure that is to apply in clear terms,Mr Martin submitted there is no prospect of reading down those provisions in anysearch for greater procedural fairness to individual litigants. Parliament's intentionthat the process should adhere only to the steps in s 29AB is indicated by subs (5),which states it is to apply "despite any enactment or rule of law to the contrary".[18] Mr Martin submitted that the lack of any ambiguity as to how the process wasto apply excluded the prospect of interpretations favouring rights contained in theNew Zealand Bill of Rights Act 1990 (NZBORA). Section 27 of that Actacknowledges the right of every person to the observance of the principles of naturaljustice, and s 6 provides that where an act can be given a meaning consistent with suchrights, that meaning is to be preferred. Arguably, there were no alternativeinterpretations available for the relevant Passports Act provisions that would lead to amore rights-friendly process being adopted.[19] Mr Martin cited the limitation on resort to s 6 of NZBORA recognised by theSupreme Court in R v Hansen.7 That litigation challenged a reversal of onus provisionin the Misuse of Drugs Act 1975. Consistently with other judgments, Tipping Jobserved:8I myself have previously emphasised that the finding of alternative meaningsunder s 6 must follow a legitimate process of construction; s 6 must not beused as a concealed legislative tool. The Courts may interpret but must notlegislate. A corollary of the latter proposition is that s 6 cannot be used to give7 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.8 At [156] (citations omitted).a meaning to an enactment which is clearly contrary to the meaning whichParliament understood its words to convey.[20] Within the statutory process provided for, the requirements necessary to fulfilnatural justice obligations will be specific to each case and, as always, the extent ofnatural justice obligations depends on context. As the Supreme Court observed inDotcom v United States of America:9The content of the right to natural justice, however, is always contextual. Thequestion is what form of procedure is necessary to achieve justice withoutfrustrating the apparent purpose of the legislation.[21] Mr Martin submitted it is arguably relevant in such cases that the threshold forthe head of the relevant agency to certify CSI status to any information is a relativelylow one. For example, under s 29AA(6)(a) the threshold is where disclosure "might"lead to the identification of sources or modes of information-gathering. Unders 29AA(7), the disclosure need only "be likely to prejudice" the various nationalinterests specified.[22] Further, without diminishing the importance of the right to maintain a passport,such challenges arise in civil proceedings where there is no issue of detention orcriminal charges against the person involved. Arguably, the consequences of loss ofthe right to a passport are also less serious than loss of citizenship or residence. Theaffected person's interests can be advanced by involving special advocates. Mr Martinsubmitted the combined effect of all these features was arguably sufficient to justifyParliament having struck the balance as it did between maintenance of secrecy of theCSI and maintenance of the rights to the appropriate extent of natural justiceprotections for the affected person.Grounds for questioning reliance on CSI status[23] Apprehending the need for general guidance in determining how the Court isto be satisfied of the desirability of protecting CSI by receiving it on an ex parte basis,Mr Keith helpfully presented a range of arguments in general terms as to the approachthat should be adopted. The scope of the arguments and examples he gave were not9 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120] (citationsomitted).related to arguments he then raised specifically in reference to the present case. Theformer can usefully be measured against the stance proposed for the Crown in generalterms without relating any of them to any matters that might require redaction. Thematters Mr Keith canvassed can be summarised as follows.(i) Sceptical approach[24] Mr Keith submitted that claims by the Crown to withhold information are tobe tested on a stringent and sceptical basis. The Court ought to expect an element of"over-claiming" as to the prejudice that might follow. By analogy with the Court ofAppeal decision on public interest immunity in Choudry v Attorney-General, the Courtcannot "be beguiled by the mantra of national security into abdicating its role".10 Inthat case, the concern for abdication was in respect of the Court's role in the balancingexercise between the public interest in a fair procedure and the claimed basis for theCrown being immune from a usual disclosure obligation. A similar caution in thatcase was expressed in the concurring judgment of Thomas J who observed:11 it is also realistically appreciated that the certificate is initially prepared byofficers of the Service who, by virtue of the very nature of their work and theirown conscientious performance of their task, may be overzealous in theirperception of the secrecy which is required.(ii) Who may claim CSI status and obligations to seek consent to disclose[25] Mr Keith submitted that the concept of information being "held" by thesecurity agency in s 29AA(5)(b) is appropriately given a narrow interpretation so asto exclude information that the security agency has access to but which it did not createor originally obtain. This would exclude information and documents obtained fromother agencies because, on Mr Keith's analysis, it would be for the entity thatoriginally procured the information to make the assessment of whether there weresecurity concerns that justified it being withheld.[26] Further, where the claim to withhold is for information derived from othersources, it should not be assumed the provider will refuse its disclosure in suchproceedings. Arguably, the Crown should positively report, in respect of individual10 Choudry v Attorney-General [1999] 2 NZLR 582 (CA) at 594.11 At 598.documents or groups of documents, that requests have been made of the source forpermission to disclose them in the proceedings, and confirmation as to whether therehas been refusal to provide that permission.(iii) Propositions counting against recognition as CSI[27] Mr Keith posed a range of general propositions that he suggested the Courtshould assess as counting against acceptance of claimed CSI status. None of thegeneral propositions, nor the examples given in respect of them, ought to be taken asapplying in this case. If such propositions were made out, then it could hardly bedesirable to withhold the information from the affected person, to protect theinformation.[28] First, if the information has been sourced, by whatever means, from theaffected person, then that information should not be withheld from him or her.[29] Second, where the security agency relied on interception or surveillancewarrants to obtain information and those warrants have expired, there cannot be anysensitivity as to such warrants being the source of information relied on. Mr Keithsuggested this would particularly be so if there was no on-going monitoring of theaffected person. He submitted that, where information relevant to any courtproceedings has been obtained pursuant to a warrant, the general practice is that theresort to a warrant will be disclosed. This can lead, in some contexts, to an issue overthe justification for issuing the warrant in the first place. Even if a challenge to thegrounds for issue of a warrant did not arise in proceedings under the Act, theexpectation that there would be disclosure of resort to a warrant would increase theonus on a security agency to justify any withholding of the fact that a warrant had beenused in any particular case.[30] Third, where sources of information are derived from publicly knowninformation-sharing arrangements between security agencies, both withinNew Zealand and internationally, then disclosures that would suggest a securityagency has obtained information by calling on such co-operation cannot be a matterthat compromises those sources so as to trigger a valid concern under s 29AA(7).[31] Fourth, if any aspects of the information are in the public domain, thenirrespective of the state of awareness attributed to the person affected, the availabilityof that information independently means that it should not be withheld.[32] Fifth, Mr Keith submitted that the Court ought also to test whether informationthe Crown claims as CSI was relevant to the decision or decisions in issue. If theinformation was not relevant, but the Crown now wishes to rely on it, then it wouldnot come within the CSI definition.(iv) Duty of utmost good faith[33] One antecedent issue on which I heard argument was the nature of theobligation on those providing the Minister with a report recommending the suspensionor cancellation of a passport. Mr Keith submitted that in defending any suchproceeding, the Crown is in a privileged position. It holds all the information, andseeks to defend the Minister's decision in court proceedings by withholding thecomponents of the information for which CSI status is claimed. Those circumstancesarguably trigger an obligation of utmost good faith to provide full disclosure to theCourt when the opposing party is not in a position to have access to all the informationand therefore test its adequacy and reasonableness.[34] Mr Keith went further in oral submissions and submitted that those responsiblefor preparing the report also owe a duty of utmost good faith to the affected person toensure that all known relevant material is presented to the Minister in a balanced way.The obligation arises so the Minister is informed of all matters – both those that justifythe recommendation and those which are potentially inconsistent with it.[35] On Mr Keith's analysis, such an obligation was relevant to the scope ofdisclosure obligations that arise when the Minister's decision made in reliance on sucha report is challenged on appeal or by way of judicial review. A person challenging acancellation decision needs to be adequately informed to assess whether criticism canbe advanced of a lack of balance in the information provided to the Minister and onwhich the Minister relied.[36] Mr Martin rejected the notion that officers with responsibility for researchingand preparing reports on a recommendation to the Minister to suspend or cancel apassport owe any such duty to the affected person. He submitted that their task is toapply all known information in forming a recommendation on whether suspension orcancellation is appropriate in a particular case. He accepted that a failure to haveregard to any relevant information (particularly information favouring the position ofthe affected person) would leave a Minister's decision vulnerable to challenge ongrounds that it was not reasonably made, or that it was made without regard to relevantmaterial. However, he submitted such vulnerability was not sufficient to give rise toa duty imputed by the Court to those acting administratively in reporting to theMinister.[37] Mr Keith relied on the decision of the Supreme Court of Canada in Canada(Citizenship and Immigration) v Harkat,12 which involved a constitutional challengeto a statutory procedure for judicial review of ministerial decisions to declare a personinadmissible to Canada. As with the present procedure, the relevant Canadian statuteprovides that, for national security reasons, parts of the record that were available toministers should be withheld from the affected person. In deciding whether therelevant statutory scheme was constitutional, the Supreme Court had to determine howfar the principle of full disclosure in an open court can be qualified in order to addressthe threat posed by non-citizens who may be involved in terrorism.13[38] The Canadian process involves two designated ministers deciding whether theevidence gives them reasonable grounds to declare a non-citizen "inadmissible" toCanada. Any such declaration is referred to the Federal Court for review of itsreasonableness. If the certificate is found by a Federal Court judge to be reasonable,the non-citizen becomes subject to removal from Canada. After an earlier version wasfound unconstitutional, the process was amended to provide for the involvement ofspecial advocates who would be entitled to access the whole of the record compiledby the decision-making ministers, on strictly confidential terms. Those termsprecluded the special advocates from raising any matters arising from the record withthe person who was the subject of the decision.12 Canada (Citizenship and Immigration) v Harkat 2014 SCC 37, [2014] 2 SCR 33.13 At [3].[39] In challenging the adequacy of research undertaken by the ministers, specialadvocates submitted that the ministers' obligations of utmost good faith extended tomaking extensive enquiries of security services in other countries. The Supreme Courtaccepted that duties of candour and utmost good faith apply when a party relies uponevidence in ex parte proceedings.Analysis[40] I accept Mr Martin's submission that Parliament has deliberately provided aprocess where protection of the confidentiality of information, essentially in theinterests of national security, is to prevail over the rights of affected litigants to usualstandards of fair procedure. Parliament has done so in unambiguous terms and thereis no opportunity to invoke s 6 of NZBORA to read down the constraints on disclosureof relevant information.[41] Having assessed Mr Keith's propositions in light of the statutory purpose andterms of ss 29AA and 29AB, and having reflected on the variety of circumstances inwhich security agencies may seek to claim CSI status for information relevant to suchproceedings, I am not persuaded that any of the restrictions he proposed could bejustified as having general application in unqualified terms. However, a number ofthem are likely to be useful in testing the desirability of withholding CSI for itsprotection, depending on the circumstances in individual cases.[42] The Court's task in assessing the desirability of protecting CSI is different tothat arising in claims to withhold otherwise discoverable documents on the ground ofpublic interest immunity. In that context, the Court is empowered to overrule a claimby the Crown to withhold relevant documents so that the Crown's perception of theneed to invoke public interest immunity is not determinative.[43] Here, the statutory process leaves the Crown in control of information forwhich the head of a security agency claims CSI status. The ability to withhold suchinformation is subject to the limited obligation to provide disclosure to the Court andany special advocate involved. However, if the Court does not accept the desirabilityof withholding the CSI for its protection, the Crown can then withdraw suchdocuments. The consequence would then be that the Crown has to defend thechallenged decision without relying on the withdrawn information.Duty of utmost good faith[44] I deal first with any antecedent obligation arising in the administrative task ofcompleting a recommendation for the Minister. I do not consider it either necessaryor appropriate to impose a duty of utmost good faith owed to the affected person bythe officers responsible for compiling a report and recommendation for the Minister.The focus of the responsibilities of such officers is to carry out their assessmentscompetently, taking into account all relevant information that can reasonably beobtained. That requires a balanced conclusion that takes into account any informationinconsistent with the outcome proposed.14 Justiciable errors may be found if theofficers fail to competently and reasonably assess all information. Such criticisms canbe argued to support an appeal or judicial review, without the lapse in standardconstituting a breach of a duty of utmost good faith.[45] In any event, I am not satisfied that the Canadian jurisprudence relied on byMr Keith supports the more expansive form of duty for which he contended. Thereferences to duties of utmost good faith and candour that appeared in earlier decisionsconsidered by the Canadian Supreme Court in Harkat focused on the nature of judicialproceedings under specific legislation.15 Litigation challenging decisions made undersuch legislative schemes were conducted before the Court on an ex parte basis in thesense that the affected person and his or her counsel were not present. A 2009Canadian Federal Court decision in Re Almrei,16 which was considered in Harkat, setout the context in which duties of utmost good faith would be implied. The decisionin Re Almrei considered the position of a party who was before the Court on an exparte basis:[500] The duties of utmost good faith and candour imply that the partyrelying upon the presentation of ex parte evidence will conduct a thoroughreview of the information in its possession and make representations based onall of the information including that which is unfavourable to their case.14 Compare Canada (Citizenship and Immigration) v Harkat, above n 12, at [100]–[103].15 For example, the Immigration and Refugee Protection Act SC 2001 c 27, s 83(1); and the PrivacyAct RSC 1985 c p-21, s 46.16 Re Almrei 2009 FC 1263, [2011] 1 FCR 163.That decision criticised an approach in which ministers had presented a document toplead their case without presenting contradictory information that was in theirpossession.[46] The context in which that practice was criticised is not appropriately appliedto impose obligations of good faith owed to the affected person by officers acting inan entirely administrative capacity in preparing a report and recommendation for theMinister. The relevant equivalent is the obligation of utmost good faith on a party toCourt proceedings, who asks for material to be received on an ex parte basis, to makefull disclosure of all information that is relevant to dealing with the issue in that way.[47] Rejection of Mr Keith's contention that a duty of utmost good faith arises doesnot derogate materially from his proposition that a person who has been the subject ofa suspension or cancellation decision has a legitimate interest in all of the informationavailable to those who prepared the report and recommendation for the Minister. Thatreflects a conventional approach to the scope of relevance in such a proceeding. Theprocedure contemplates that full disclosure will be made to a special advocate whoseroles include consideration of the person's interests. Possible arguments that theMinister was not fully informed, or that the report unreasonably rejected ordownplayed additional information that may have counted against a decision tosuspend or cancel the passport, cannot be advanced unless access is provided to all theinformation available to those officers, and not a subset of such information that theyelected to give to the Minister.[48] As well as claiming an entitlement to disclosure of all the material available tothe officers responsible for the recommendation to the Minister, Mr Keith urged anarrow interpretation of the possible scope of CSI, so as to exclude information thatwas not relevant to the Minister when making the decision under challenge. However,asserting this breadth of disclosure obligation on the Minister cannot enable anapplicant to circumvent the scope of a proper claim to CSI status. The grounds forwithholding documents from discovery by relying on the tests in s 29AA(6) and (7)will apply to all documents that are otherwise discoverable because of their relevanceto the issues in the proceeding.[49] Mr Martin suggested in oral argument that the scope of relevant documents insome judicial review contexts would be more confined than in an appeal. Thisdistinction was likely to arise because the issues on judicial review could onlyencompass the lawfulness and reasonableness of the Minister's decision at the time itwas made. Without necessarily conceding that such a scope would include documentsrelevant to the person's status that were known to those making the recommendationbut not included within the information given to the Minister, Mr Martin submittedthat information acquired since the Minister's decision could not be relevant to ajudicial review analysis of it.[50] That distinction between the scope of issues in judicial review and an appealmay become relevant in some cases, but is not sufficient to influence generalguidelines on the task of the Court in dealing with the issues raised under s 29AB ofthe Act. The scope of issues in such cases can be expected to include an assessmentof whether there were reasonable grounds for the challenged decision. There are likelyto be cases in which the Court would take into account relevant information that hasonly subsequently become available, or which could have been put to the Minister butwas not. Once relevance is made out, then the assessment of whether CSI statusjustifies withholding the information for its protection will likely be dominated by theextent to which the Court is satisfied that s 29AA(6) and (7) considerations are present.A rigorous test[51] A stringent and sceptical approach to reviewing the justification for CSI statusis warranted in such cases. It is consistent with the approach adopted in the UnitedKingdom, Canada and Australia.17 The analysis should not proceed from a positionof deference to the opinions expressed on the need to maintain secrecy. The UnitedKingdom experience includes a case in the Court of Appeal of England and Wales,where the Crown cited grave reasons of national security to maintain secrecy and it17 See for example Secretary of State for the Home Department v AF (No 3), above n 6, at [83]–[84]per Lord Hope; Mohamed v Secretary of State for Foreign and Commonwealth Affairs (No 2)[2010] EWCA Civ 158, [2011] QB 218; Canada (Citizenship and Immigration) v Harkat, aboven 12, at [63] and [64]; and Holloway v Commonwealth [2016] VSC 317.was later revealed that the same information was publicly disclosed in the UnitedStates.18[52] However, the standard to be applied creates a low threshold for accepting theCrown's position. The Court need only be satisfied that it is desirable (that is, lessthan necessary) to concur with the withholding of CSI for its protection.[53] Affidavits from security officers explaining the reasons why secrecy should bemaintained ought to adequately explain the grounds for concern at the risks arisingfrom disclosure. Bearing in mind that such affidavits are strictly confidential to theCourt and any special advocates involved, sufficient detail ought to be provided forthe limited audience reading such affidavits to form their own views on the need formaintaining secrecy.Who may claim CSI status and obligation to seek consent to disclose[54] I do not accept Mr Keith's proposition that CSI status can only be claimed bythe agency that originally procured a document or information. The significance andsensitivity of the same item may be different in the hands of different agencies and itwould frustrate the purpose of s 29AA(6) and (7) if a distinction was maintained sothat only the agency that acquired information could make a claim for CSI status.[55] Mr Keith proposed that an agency claiming CSI status for information obtainedfrom other sources should be obliged to explicitly ask whether those sources wouldconsent to its release. Certainly, if the circumstances of acquisition of informationgive rise to any reasonable prospect that the source may consent, then an expectationarises that the request for such consent would be made before the agency asserted CSIstatus to protect that source. However, I am not satisfied that a uniform obligation ofthat breadth is warranted. For example, security agencies will have standingarrangements with at least some other organisations with which they share confidentialinformation. Those arrangements likely include obligations on each recipient to takeall practicable steps to prevent dissemination, and likely have exceptions to thoseobligations for confidential disclosures to government ministers. Requiring the18 Mohamed v Secretary of State for Foreign and Commonwealth Affairs (No 2), above n 17.security agency to make requests for consent where such standing arrangements existcould not be warranted.[56] In addition, there may be circumstances in which the security agency wishesto assert secrecy over the fact that it has obtained information from other sources,irrespective of whether the source would permit disclosure. The fact that a source ofinformation does not oppose disclosure might make it harder to make out the necessaryprejudice under s 29AA(7). However, provided that the ground for claiming CSIstatus is accurately identified and appropriately justified, in such cases the presence orabsence of consent from the agency that originally provided the information may notbe determinative.Information sourced from the affected person[57] Mr Keith's proposition that if information is obtained from the affected personit cannot be withheld from them is superficially appealing. If the affected person has,say, said to a terrorist organisation that he or she is capable of making a particular typeof bomb, then that person should surely know that the Minister learnt of it and took itinto account in deciding to cancel their passport.[58] The qualification to that proposition for which Mr Martin argued strongly wasthat disclosing the security agency's awareness of such a statement may, depending oncircumstances, reveal to the affected person the surveillance capacity of the agency orothers sharing information with it. It may reveal monitoring of conversations orcommunications in which the statement is alleged to have been made, or the agency'saccess to reports from someone hearing or reading the communication. Thatknowledge might alert the person to the nature and range of resources available to thesecurity agency. The result of such disclosures might therefore compromise the utilityof future use of such sources of information.[59] It follows that a blanket rule rejecting the need to protect CSI where theinformation is derived from the person in question is not appropriate. However, thefact that such communications are being held against the person will generally beimportant to preparation of a rebuttal to the case against the person, so the agencyclaiming CSI status should explain in adequate detail how the risk of disclosure ofsources or methodologies arises, and the extent of that risk.Information publicly available[60] Mr Keith's next suggested restriction on claims to CSI status was that it shouldnot be protected if the information was publicly available. Again, the proposition issuperficially attractive. The fact that a security agency is aware of, and considersrelevant, some item or items of information that are in the public domain could notprejudice covert sources of information or methods of obtaining information.[61] However, there is likely to be a range of circumstances in which the attributionof relevance to publicly available information may afford insight for the affectedperson into other information which has been covertly acquired, and for which CSIstatus is properly claimed. For instance, covertly acquired information about a personmay include their use of a code name for a terrorist organisation and, beforecompletion of discovery in proceedings brought by that person, a televisiondocumentary refers to the use by the terrorist organisation of that code name. The factthat the connection between the organisation and the code name was public knowledgemay not prevent a security agency claiming CSI status for its knowledge of the codename, where attributing relevance to the code name could alert the person to theagency's awareness that he or she used the code name.[62] As with other grounds for testing the need for protection of CSI suggested byMr Keith, and applying a rigorous test, the fact that information is publicly known willgenerally increase the onus on a security agency to justify claims that its disclosuregives rise to the likelihood of the forms of prejudice listed in s 29AA(7). Where thesecurity agency is aware that a piece of information to which it attributes CSI status isin the public domain, the Court can reasonably expect an acknowledgement that it isnow in the public domain and an adequate explanation as to why the information stilldeserves protection.Reliance on warrants and information sharing arrangements[63] Generally, by the time persons who have had their passport suspended orcancelled come to challenge such a decision by way of appeal or application forjudicial review, they can be expected to know of the security agency's capacity toobtain warrants to conduct surveillance and intercept communications. Certainly,those who retain counsel will likely learn of such sources of information about themin the course of dialogue with counsel. It follows that, in general, the security agencywill need to make out specific matters bearing on the circumstances in which a warrantwas used, or the risk of revealing the technologies used in obtaining the information,before the likelihood of the forms of prejudice listed in s 29AA(7) would arise.[64] I do not accept Mr Keith's absolute proposition that if information has beenobtained in reliance on a warrant that has expired, the fact of resort to a warrant couldnot justify a claim to withhold the CSI for its protection. The proposition would notbe sustainable even where the affected person was no longer the subject ofsurveillance. However, nor can the Crown expect acceptance in every case of itsproposition that disclosure of resort to a warrant for obtaining information about theaffected person gives rise to the likelihood of the forms of prejudice in s 29AA(7).Numerous context-specific factors about reliance on a warrant in any given case arelikely to be relevant to whether the defined forms of likely prejudice should berecognised as making out the desirability of protection.[65] An assumption may well be warranted in some cases that persons whosepassports have been suspended or cancelled under these provisions will be aware ingeneral terms that memoranda of understanding or similar arrangements exist betweensecurity agencies in New Zealand and other New Zealand entities, as well as with theequivalent security agencies in other countries.[66] That general level of public awareness of such information-sharingarrangements is likely to reduce (but does not entirely remove) the prospect thatinformation which would reveal that confidential information had been obtained byusing such information-sharing arrangements is desirably protected because it givesrise to the forms of prejudice specified in s 29AA(7). As with the other propositionssuggested by Mr Keith, the circumstances in which a security agency accessedinformation by relying on an information-sharing arrangement could involveincidental disclosure of matters that inform the affected person of other matters thatwould otherwise remain secret and would prejudice one or more of the interestsidentified in s 29AA(7).[67] There may be cases in which a special advocate can persuasively argue thatmore is required to justify a claim to such forms of prejudice than the mere fact ofdisclosure that the security agency has obtained the information pursuant to such aninformation-sharing arrangement. The existence of an arrangement which is a matterof public record would provide support for such an argument.[68] The fifth of Mr Keith's propositions to confine the scope of documents forwhich CSI status could be claimed was that all such documents had to have beenrelevant to the decision or decisions being challenged. His proposition was that if theCrown wished to justify the decision on the content of documents that were not takeninto account, then they were going beyond the decision-making process and could notjustify a claim to withhold such new documents from the affected person.[69] However, the definition of CSI in s 29AA(5) includes information relevant towhether there are or may be grounds for believing that the affected person is a dangerto the security of New Zealand (or another jurisdiction). The scope of the statutorydefinition is wider than the constraint Mr Keith proposed and there is no justificationfor reading down the breadth of that statutory definition.Supervision of the unclassified summary[70] A common feature of equivalent closed court procedures in other jurisdictionsis the requirement for the Court to supervise the content of a summary of the withheldinformation, which is to be provided to the person affected by the decision. Mr Keithsubmitted that, to the extent any withholding of information is warranted, the summaryprovided to the affected person must be as detailed as possible, and must be adequateto enable the person not only to deny the grounds relied on but also to enable a rebuttalto them to be advanced.19 Mr Keith submitted that the absolute minimum would be torequire the summary to not be so confined as to risk misleading the person regardingthe grounds that had been relied on in the decision against him or her.[71] This approach has consistently been adopted in the United Kingdom andEuropean jurisdictions in decisions that were made before the New Zealand provisionswere originally enacted in 2005 and their material modification in late 2014. Mr Keithdrew attention to advice from the Ministry of Justice to the Attorney-General on theintroduction of the 2014 provisions. That advice noted that the requirement for asummary would provide the person with an adequate opportunity and ability to gainaccess to relevant material to ensure that the person had a reasonable opportunity tochallenge the material. This was seen as providing in part for the affected person'srights to natural justice.[72] The United Kingdom decisions distinguish the extent of the obligationsdepending on the severity of the adverse consequences for the person affected. At theleast serious end of the spectrum, withholding sensitive detail from a summary canmore easily be justified where the person affected is challenging the withdrawal of asecurity clearance required for restricted categories of employment.20 A higher test isrequired if the person affected is being deprived of the right to a passport,21 and evenhigher expectations of disclosure arise if the issue affects the person's liberty.22[73] The United Kingdom and European jurisprudence refers consistently to theneed for such summaries to provide the gist or essence of the case against the affectedperson. Mr Keith submitted that provision of sufficient information to rebut, and notjust to deny, the Crown case had to be the bare minimum of any summary the Courtcould approve. In contrast, Mr Martin accepted that the objective was generallyaspirational but, depending on circumstances, the Court may have to recognise it19 A v United Kingdom [2009] ECHR 301, (2009) 49 EHRR 29 (Grand Chamber) at [220]; Secretaryof State for the Home Department v AF (No 3), above n 6, at [59] and [65] per Lord Phillips, [82]per Lord Hope and [96] per Lord Scott; and Secretary of State for the Home Department v AbuRideh [2008] EWHC 1993 at [21] and [40], cited with approval in Secretary of State for the HomeDepartment v AF (No 3), above n 6, at [54] per Lord Phillips.20 Tariq v Home Office [2011] UKSC 35, [2012] 1 AC 452 at [81].21 MR v Secretary of State for the Home Department [2016] EWHC 1622.22 Secretary of State for the Home Department v AF (No 3), above n 6, at [57] per Lord Phillips and[80] per Lord Hope.simply could not be achieved if in doing so the content of the summary involveddisclosure of information that was likely to prejudice the interests recognised ins 29AA(6) and (7).[74] Mr Martin disputed that there is any requirement in s 29AB(2) that thesummary be "adequate" by reference to any standard. On the terms of that section,the only requirement is the negative one that the content of the summary not providedisclosure that would be likely to prejudice the interests referred to in s 29AA(6) or(7). He also disputed that because the function of the summary was to act as asubstitute for the usual scope of disclosure that would otherwise occur in civilproceedings, it was somehow to be measured against an implied minimum standardfor discovery to which a litigant would otherwise be entitled.[75] However, I do treat the process contemplated by the Act as having the purposeof providing a summary of the CSI that does substitute for disclosure of otherwisediscoverable documents. Section 29AB(2)(b) contemplates the Court having thepower to direct amendments to the content of the summary proposed by the Crown.This aspect of the process does not subvert the Crown's ultimate control over thewithholding of what has been certified as CSI. If the Crown does not agree with theamendments to the summary proposed by the Court, the Crown has an opportunity toconsider removing from the CSI the information which triggers the Court'srequirement for amendment. A re-drafting process might then be required, with theCrown maintaining the adequacy of a lower level of disclosure in the summary on thebasis that it would disavow reliance on the parts of the CSI that the Court consideredjustified its proposed amendments.[76] Cancellation of a passport involves deprivation of a relatively important right.In ranking the relative importance of providing the gist of the case to enable a rebuttal,it cannot rank as highly as the importance where loss of liberty is involved. However,omission of any matters necessary to reasonably understand the gist of the case againstan affected person can only be justified if the Crown makes out the likelihood, to aconvincing standard, of one or more of the forms of prejudice in issue. In balancingwhat is otherwise a process contrary to basic principles of natural justice, the Courtshould be firm in requiring content of the summary that affords the reasonable gistwhilst not falling foul of the likelihood of forms of prejudice specified in s 29AA(6)and (7). In this aspect of the analysis, it is the Court's view of what is likely to causerequisite prejudice, not the Crown's.[77] The Court's supervisory role involves being satisfied as to the desirability ofprotecting the CSI by withholding it from the affected person, and then approving asummary of the information thereby withheld. The provisions appear to contemplatethat the first step is to be completed before considering the adequacy of a summary. Ifthe Court is not satisfied of the desirability of protecting the CSI in particulardocuments, the Crown may, on reconsideration, either withdraw the documents fromthe proceeding or accept that such documents are not entitled to CSI status. If thelatter, they would become part of the unclassified documents of which discoverywould be provided to the person affected in the usual way. In that event, the summaryof CSI need not address their content.[78] However, there may be circumstances in which the two steps in thissupervisory process are progressed together. The overriding interest is to inform theaffected person as fully as can reasonably be achieved to enable an effective rebuttalto the case against him or her. The present proceeding has progressed substantiallymore slowly than is likely to be appropriate where the issue is deprivation of theentitlement to a New Zealand passport. The two steps should be in issue as soon asthe Court and any special advocates have been given access to the documents forwhich CSI status is claimed. The adequacy of the summary to be provided to theaffected person provides a focus for the extent to which the Court may question thedesirability of protecting the CSI by withholding it. Where the gist of a document canbe conveyed adequately in the summary, the Court may more readily be persuaded ofthe desirability of protecting the CSI itself, than it would in cases where the gist is notor cannot be conveyed in the summary.[79] Judges are well used to determining both civil and criminal proceedings incircumstances where they have been exposed to evidence that is then ruledinadmissible. The analysis required is whether the party with an onus to discharge isable to do so in reliance on the properly admissible evidence before the Court.Generally, counsel for all parties will be aware of the potential evidence and have hadan opportunity to contest its inclusion in the case.[80] In supervising closed court proceedings under the Act, cases may arise inwhich the Crown insists on withholding CSI and opposing any adequate indication ofits content in the summary. In certain circumstances, the CSI may have beensubstantially important to the Minister in making her or his decision. Notwithstandingthe experience of excluding inadmissible evidence, where that arises it may beappropriate for the Court to allocate a different judge to preside at the substantiveproceeding from the judge who has managed the proceeding up to that stage, includingruling on the desirability of protecting the CSI and the terms of the summary.Particularly where the optimal procedure to comply with usual natural justiceexpectations is likely to be compromised, the administrative burden and extent ofduplicated judicial resource that would be involved may be justified to assure anapplicant that everything possible is done to facilitate a fair hearing. The issue will beone of the relative significance of CSI that the Crown insists remains secret to thegrounds for the ministerial decision being challenged.Summary[81] The scope of discoverable documents in such proceedings will extend to allinformation available to the report-writers so that that extent of information may beassessed for criticisms of the competence or balance of the recommendationsubsequently relied upon by the Minister. However, officers carrying out theadministrative tasks in preparing a report for the Minister to recommend suspensionor cancellation of a passport do not owe a duty of utmost good faith to the affectedperson.[82] When assessing the scope of the claim advanced by the Crown for CSI statusof documents to be protected, the Court will apply a rigorous test. However, none ofthe following propositions apply definitively to override the desirability of protectingCSI status:(a) that the source of the information permits disclosure;(b) that the information was sourced from the person concerned;(c) that the information is otherwise publicly available;(d) that the information was sourced by executing a warrant or warrantsthat have now expired;(e) that the person concerned is no longer the subject of surveillance; and(f) that the information was sourced in reliance on standing arrangementsfor information-sharing with other agencies within New Zealand orinternationally, the existence of which is publicly known.[83] Depending on the factual context, these considerations may nonetheless berelevant in assessing, on a case-by-case basis, whether it is desirable for their CSIstatus to be protected.[84] In considering the summary of the information contained in the CSI to beprovided to the affected person, the Court is to ensure to the greatest extent possiblethat the summary conveys the gist of the case against the person so as to enable thatperson to prepare a rebuttal to the case against him or her. The Court may proposeamendments to the content of the summary presented by the Crown, but ultimately theCrown can prevail in settling the terms of the summary by electing to withdraw anyitems of CSI so as to obviate the need for inclusion in the summary of statements itconsiders give rise to the forms of prejudice listed in s 29AA(7). The Crown wouldthen be unable to rely on the withdrawn CSI in the proceedings.Delivery of this judgment[85] The protocol for conduct of such proceedings provides that any judgmentpotentially containing CSI is to be released on a restricted basis to the relevant securityagency, to afford a 48 hour period for consideration of its content and request to theCourt to treat what is perceived to be CSI differently. I do not consider that the termsof this judgment include any CSI, but nonetheless I complied with this aspect of theprotocol and provided the judgment to the security agency on 1 June 2018. It is beingissued without alteration.[86] When the Court custodian gave counsel warning of the availability of thejudgment, the special advocate initiated dialogue on refinements to the process forissue of judgments contemplated in the protocol. Counsel sensibly agreed that theinitial distribution was to be to the security agency which would provide copies toCrown Law and the special advocate, and that I would afford an opportunity forcounsel to comment in relation to any concerns raised. In the absence of any concernsraised by the security agency, there is no need to hear further from counsel.Dobson JSolicitors:Crown Law, Wellington for respondentCopy to:The applicantSpecial Advocate, BJR Keith, Wellington