THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v L [2018] NZHC 2528

THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v L [2018] NZHC 2528 [26September 2018]NOTE: ORDER PROHIBITING PUBLICATION OF NAME OFRESPONDENT.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-000269[2018] NZHC 2528IN THE MATTER OF An appeal by way of Case Stated from thedetermination of the Social Security AppealAuthority at Wellington under section 12Qof the Social Security Act 1964BETWEEN THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIAL DEVELOPMENTAppellantAND LRespondentHearing: 10 September 2018Counsel: P J Radich QC and C M Hutchinson for AppellantA J Ellis and S M Shone for RespondentJudgment: 26 September 2018 at 3.00 pmJUDGMENT OF COLLINS JPART IOVERVIEWIntroduction[1] This judgment explains why members of a committee, established bylegislation to review decisions made by a government department, may not usefictitious names and signatures when issuing their decisions.Anonymous decision-makers[2] Benefit Review Committees (Committees) are responsible for reviewingdecisions made on behalf of the Chief Executive of the Ministry of SocialDevelopment (the Ministry) concerning an applicant's entitlement to benefits underthe Social Security Act 1964 (the Act).[3] Ms L applied to have the Committees review seven decisions concerningvarious benefits to which she says she was entitled under the Act. Decisions from theseven differently constituted Committees were duly delivered. It transpired, however,that in six of the Committees' decisions, the names of the Committee members andtheir signatures were fictitious.[4] This revelation occurred when Ms L appealed the Committees' decisions to theSocial Security Appeal Authority (the Authority). Prior to the scheduled hearing ofthe appeals, Mr van Ooyen, a senior manager at the Ministry, filed a memorandumwith the Authority saying that the Ministry had decided that the true identities of themembers of the Committees should be hidden in order to protect Committee membersfrom the risk of being harassed and threatened by Ms L. Mr van Ooyen said Ms L hadengaged in "abusive" and "harassing behaviour" and that she had also made deaththreats against Ministry staff. Mr van Ooyen's memorandum was not served on Ms Lwho, at the time, had the assistance of a lay advocate but was not represented by alawyer.[5] The Authority responded with a minute conveying its concerns that theCommittees had issued decisions using fictitious names and signatures and that theMinistry had attempted to communicate with the Authority "in confidence" andwithout involving Ms L.[6] Upon being notified of the Authority's concerns, the Ministry applied to theAuthority to withhold from Ms L the true identities of the members of the sixCommittees who had used fictitious names and signatures.Authority's decision[7] In a decision dated 15 September 2017, the Authority dismissed the Ministry'sapplication.1 In doing so, it said there was "an absolute prohibition" on statutorydecision-makers, such as members of the Committees, using fictitious names andsignatures unless there was an express legislative basis for them to do so.2 TheAuthority also said the Ministry's justification for claiming anonymity on the part ofmembers of the Committees "lack[ed] substance when weighed against the right toopen justice" and that permitting the members of the Committees to maintain theiranonymity would "seriously compromise" the Authority.3[8] This was the second occasion the Authority had ruled the names of membersof a Committee must be disclosed to an applicant. In an earlier decision, which didnot involve Ms L, the Authority said that the true names of Committee members mustbe disclosed to an applicant.4[9] The Ministry now appeals the decision of the Authority using the "question oflaw" case stated procedure prescribed in s 12Q of the Act. Two questions of law havebeen posed by the Authority, namely:(1) "Did the Authority err in law in stating that there is an absoluteprohibition on statutory decision-makers, in the absence of expressstatutory authority, remaining anonymous"?; and(2) "If so, did the Authority err in this case in the exercise of its discretionto [dis]allow anonymity"?Summary of this judgment[10] The answer to the first question posed by the Authority is that it was correct toconclude the Committees required express legislative authority in order to lawfullyuse fictitious names and signatures when they issued the six decisions in question.1 Re an appeal against a decision of a Benefits Review Committee [2017] NZSSAA 052.2 At [66].3 At [67]–[68].4 Re an appeal against a decision of a Benefits Review Committee [2015] NZSSAA 102.This is because the use of fictitious names and signatures by the Committees preventedMs L from challenging the appointment of Committee members on the grounds of biasor being otherwise ineligible to consider her application. This in turn breached herright to natural justice affirmed by s 27(1) of the New Zealand Bill of Rights Act 1990(NZBORA).[11] The Ministry also erred when it contended that the use of fictitious names andsignatures could be justified in the discharge of its duties under the Health and Safetyat Work Act 2015 to ensure the health and safety of its employees. Those provisionsdo not provide implicit authority for the use of fictitious names and signatures. Norwould they have provided a justified limit on Ms L's right to natural justice.5[12] This conclusion renders it unnecessary to decide the second question asked inthe case stated appeal. If, however, I am wrong in my conclusion in relation to thefirst question posed by the Authority, then I am satisfied there was no appealable errorin the way it dealt with the issues raised by the second question posed for this Court'sconsideration.Structure of judgment[13] To assist in understanding this judgment, I shall explain in Part II further detailsabout the background to this proceeding and the relevant statutory provisions. Part IIIfocuses on the principles engaged in this case, and the reasons why my answer to thefirst question endorses the decision of the Authority. Part IV briefly examines thesecond question raised in the appeal. In Part V of this judgment I summarise myconclusions.5 New Zealand Bill of Rights Act 1990, s 5.PART IIFURTHER BACKGROUNDMs L[14] Ms L is a challenging person, who has been engaged in extensive litigationwith the Ministry concerning her entitlements to various benefits under the Act.[15] In another decision, I noted Ms L had "taken 28 appeals to the Authoritybetween 2009 and 2017 and [that] the hearing before me was the second that theHigh Court [had] conducted in [2016–2017] concerning Ms L's disputes with the[Ministry]".6 I also noted Ms L suffers ongoing serious and debilitating health issues,including Chronic Fatigue Syndrome, Irritable Bowel Syndrome, chemicalsensitivities and skin disorders. Although she has had some previous engagement withmental health services, Ms L is adamant she has never had a psychiatric condition.[16] Ms L has sent highly abusive communications to employees of the Ministry,and on at least one occasion, she has threatened to kill a member of the Ministry staff.It is not necessary to repeat her exact words. Suffice to say that Ms L's comments arevulgar, aggressive and undoubtedly very disturbing to recipients.[17] Records of Ms L's communications with the Ministry reveal that in August2012 Ministry staff referred her threats to the police in the Taranaki town where shelives. The response from the police included an assurance that Ms L was "harmless"and would not "act on any of her threats". Nevertheless, she was arrested in April2013 for threatening to kill an employee of the Ministry. She was sentenced on 20January 2015 on the basis that she would be called upon for sentence if she reoffendedwithin the following 12 months. The same sentence has also been imposed on Ms Lfor other offences she has committed, including using offensive language, offensiveuse of a telephone and wilful trespass. Ms L also has convictions for benefit fraud.76 [L] v The Chief Executive of the Ministry of Social Development [2017] NZHC 967 at [4].7 There is, however, no note of Ms L's convictions for fraud in her criminal and traffic convictionsrecord. In her evidence before the Authority, Ms L said she had convictions for "benefit fraud".Remote Client Unit[18] The Remote Client Unit was established by the Ministry in 2004 to provideservices to applicants and beneficiaries who, "due to unacceptable behaviour" or forother "exceptional reasons", are deemed by the Ministry to be best managed withoutdirect contact with Ministry staff. There are approximately 1.1 million recipients ofbenefits from the Ministry of whom approximately 80 are managed through theRemote Client Unit. Ms L is one of those 80 persons. The Remote Client Unit islocated in Wellington, approximately five hours drive from where Ms L lives.[19] Persons managed through the Remote Client Unit communicate with Ministrystaff through an answerphone, mail or electronic processes. They are not able to meetwith, or talk directly with, the Ministry employees who manage their applications.Benefit Review Committees[20] The Committees are established pursuant to s 10A of the Act. As noted at [2],they review decisions made by Ministry employees concerning an applicant'sentitlement to benefits under the Act.[21] A Committee is appointed by the Minister for Social Development (theMinister). Each Committee comprises three persons, two of whom are officers of theMinistry. The third member of the Committee is appointed by the Minister "torepresent the interests of the community" and is required to be "resident in or closelyconnected with the office of the department" where the decision in issue was made.8[22] Section 10A(7) of the Act stipulates that no employee of the Ministry shallserve on a Committee if they have been involved in the decision that is being reviewed.[23] Often statutory committees and other decision-making bodies are given widepowers to regulate their own procedures and to take whatever steps they considernecessary to discharge their statutory responsibilities.9 Committees do not, however,have these broad powers.8 Social Security Act 1964, s 10A(3)(a).9 See for example, Social Security Act 1964, s 12K(10), concerning the procedures for the Authority.[24] The Supreme Court has explained that Committees make decisions on behalfof the Chief Executive of the Ministry. The decision of a Committee "either toconfirm, modify or reverse the original decision, has the same standing as the decisionthe Chief Executive might have made if personally undertaking the review. It is aDepartmental decision".10 Committees do not have sufficient independence to beclassified as a judicial body but are instead purely administrative decision-makers.11[25] When a person who is being managed through the Remote Client Unit seeksto have a Committee review a decision, the protocol is that the applicant provides theirsubmissions to the Committee in writing. Reviews are considered "on the papers"unless the applicant is represented by an agent, in which case a hearing may beconducted by way of a telephone conference. A telephone conference was held by atleast one of the Committees considering Ms L's applications for review.12[26] The protocol governing the Remote Client Unit business process provides that,following the "hearing" by the Committee, the Remote Client Unit will send an"outcome letter" to the applicant with the Committee member names removed. ACommittee's decision must include its reasons and advice that the applicant has a rightto appeal against the decision to the Authority.13Health and Safety at Work Act 2015[27] The Ministry has a "primary duty of care" to ensure, "so far as is reasonablypracticable", the health and safety of its staff and other persons, including "theprovision and maintenance of safe systems of work".14 These obligations require theMinistry to eliminate or minimise risks to both the physical and mental health of itsstaff.15[28] The term "reasonably practicable" is defined in s 22 of the Health and Safetyat Work Act in a way that requires employers to follow a series of evaluative steps,10 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008]1 NZLR 13 at [19].11 At [27]–[28].12 Re an application for Review by [Ms L] Benefits Review Committee 088/16, 17 June 2016.13 Social Security Act 1964, s 10A(9).14 Health and Safety at Work Act 2015, s 36(1), (2) and (3)(c).15 Sections 16, definition of "health", and 30(1).including those set out in the definition.16 The definition refines the approach takenby Asquith LJ in Edwards v National Coal Board, in which he said:17"Reasonably practicable" is a narrower term than "physically possible" andseems to me to imply that a computation must be made by the owner, in whichthe quantum of risk is placed on one scale, and the sacrifice involved and themeasures necessary for adverting the risk (whether in money, time or trouble)is placed in the other, and that, if it can be shown that there is a grossdisproportion between them—the risk being insignificant in relation to thesacrifice—the defendants discharge the onus on them.[29] The Ministry is acutely aware of its obligations under the Health and Safety atWork Act as, on 1 September 2014, a Mr Tully entered the Ministry's premises inAshburton and shot at four of its employees, killing two of them. Following thistragedy, the Ministry was prosecuted for breaching its obligations under the Healthand Safety in Employment Act 1992 on the basis that it had failed to take allpracticable steps required of it to ensure the safety of its employees.18 The Ministrypleaded guilty to the charge, accepting it had failed to put in place five of the sixpracticable steps the prosecution said the Ministry should have adopted. The Ministrycontested, however, the claim that it was required to ensure that there were physicalrestrictions to clients accessing the staff working area. Following a disputed factshearing, Chief Judge Doogue held that the Ministry was also required to take thatstep.1916 Health and Safety at Work Act 2015, s 22: reasonably practicable means that which is, or was, at a particular time, reasonably ableto be done in relation to ensuring health and safety, taking into account and weighing up allrelevant matters, including—(a) the likelihood of the hazard or the risk concerned occurring; and(b) the degree of harm that might result from the hazard or risk; and(c) what the person concerned knows, or ought reasonably to know, about—(i) the hazard or risk; and(ii) ways of eliminating or minimising the risk; and(d) the availability and suitability of ways to eliminate or minimise the risk; and(e) after assessing the extent of the risk and the available ways of eliminating or minimising therisk, the cost associated with available ways of eliminating or minimising the risk, includingwhether the cost is grossly disproportionate to the risk.17 Edwards v National Coal Board [1949] 1 KB 704 at 712; see also Buchanans Foundry Ltd vDepartment of Labour [1996] 3 NZLR 112 (HC); and Waimea Sawmillers Ltd v WorksafeNew Zealand [2016] NZHC 915 at [36].18 The predecessor to the Health and Safety at Work Act 2015.19 WorkSafe New Zealand v Ministry of Social Development [2016] NZDC 12806.Focus of the abuse[30] An examination of the offensive and threatening material sent by Ms L, whichwas attached to the affidavit of Mr van Ooyen, shows that her concerns appear to havebeen directed towards conduct of staff at the Remote Client Unit. In addition tonaming managers and staff at the Remote Client Unit, Ms L also named in hercommunications politicians, including the then Prime Minister and Minister. At nostage does Ms L appear to have referred in her communications to a member of aCommittee, by either their real or fictitious names, when complaining about theconduct of employees of the Ministry.First Committee[31] The first of Ms L's applications for review to which this proceeding relates washeard by a Committee on 25 November 2015. The members of that Committee usedtheir real names and signatures when issuing their decision. That Committeeexpressed concern that staff in the Remote Client Unit dealing with Ms L's case hadfailed to provide the Committee with important information, thereby creating thepossibility of the Committee being misled into reaching a "wrong and unfairconclusion".20 The Authority recorded in its decision that "from that point forward,the members of the Committees [reviewing Ms L's cases] used false names andsigned decisions with false signatures".21Real identities of the Committees[32] A schedule attached to Mr van Ooyen's affidavit explained the true identitiesof the members of the other six Committees that heard Ms L's applications for review.The same community representative sat on four of those Committees. One employeeof the Ministry sat on two of the Committees, including chairing a Committee on oneoccasion.20 Re an application for Review by [Ms L] Benefits Review Committee 039/16, 26 November 2015.21 [2017] NZSSAA 052, above n 1, at [25].Ministry's position before the Authority[33] In the hearing before the Authority, the Ministry explained that it wished tocontinue to withhold from Ms L the true identities of the members of the Committeesbecause of the 2014 shooting and the Ministry's subsequent conviction for failing toprovide a safe work environment. The Ministry also maintained that Ms L was aperson who exposed Ministry staff to danger and that it was necessary to mitigate thatrisk by withholding from her the identities of the members of the Committees thatconsidered her applications for review.[34] It is significant that all seven of the Committees that considered Ms L'sapplications for review – including the Committee that used its real names – did soafter the 2014 shooting. In addition, all seven of the Committees were convened afterMs L's last conviction on 20 January 2015 for threatening to kill. There is no evidenceto suggest that members of the first Committee were subject to any threats or abusefrom Ms L, even though she knew their true identities.PART IIIFIRST QUESTION POSED BY THE AUTHORITY[35] The answer to the first question posed by the Authority involves considerationof two interrelated issues. Those issues are:(1) whether the use of fictitious names and signatures by Committeemembers breaches Ms L's right to the observance of the principles ofnatural justice by the Ministry; and if so,(2) whether the Ministry had any lawful authority to breach Ms L's right tonatural justice.[36] The second of these issues involves an examination of the sources ofgovernment power and whether the common law can be "developed" to sanction thepractice of Committees using fictitious names and signatures. It is also necessary tobriefly explain why breaches of Ms L's right to natural justice are not justifiedlimitations of that right.Right to natural justice[37] Ms L's case engages her right to natural justice, and in particular, the rightaffirmed by s 27(1) of NZBORA "to the observance of the principles of natural justiceby any public authority which has the power to make a determination in respect of[her] rights, obligations or interests protected or recognised by law".22[38] The right to natural justice is an immutable feature of our law, the origins ofwhich can be traced from the Code of Hammurabi, through the Magna Carta, tomodern manifestations found in NZBORA and international human rightsinstruments. The requirements of impartial decision-makers and fair hearings are buttwo examples of the right to natural justice.23[39] For present purposes, the engagement of the right to natural justice concernsMs L's desire to know the identities of members of the Committees hearing herreviews. This is so she can make an informed decision about whether or not tochallenge the appointment of a particular member or members on the basis of actualor perceived bias, because of her long history of interaction with employees of theMinistry and Committees, or because a Committee member may be disqualified byreason of their prior involvement with the decision that is the subject of the review.[40] There is authority for permitting a degree of tolerance when determiningwhether a non-judicial officer should be disqualified from participating in a decision22 Because Ms L's proceeding does not involve the minimum standards for a criminal trial, I havenot referred to jurisprudence criticising the use of "faceless judges". See Espinoza de Polay vPeru Comm 577/1994, UN Doc CCPR/C/61/D/577/1994 (6 November 1997) at [8.8]; and SarahJoseph and Melissa Castan The International Covenant on Civil and Political Rights: Cases,Materials, and Commentary (3rd ed, Oxford University Press, Oxford, 2013) at [14.101].23 William Wade and Christopher Forsyth Administrative Law (11th ed, Oxford University Press,Oxford, 2014) at 376.on the grounds of bias.24 For example, in Moxon v The Casino Control Authority,Fisher J said:25More freedom to manoeuvre seems intended where the decision-maker is ademocratically elected body which will inevitably be influenced by politicalconsiderations the decision-maker is intended to form its own policies,particularly where it can be expected that one policy will be appliedconsistently across a series of individual applications the challenged aspectof the decision did not involve the application of tightly controlled legalconsequences to facts once found, eligibility for appointment and hearingmethodology suggest that its members were intended to draw upon their ownprior views, experience or expertise, and/or the opportunity to be heard islimited or informal. In such cases intervention for bias or predeterminationwill usually be justified only where the decision-maker entered upon thehearing with a closed mind, that is to say the decision-maker was not amenableto proper argument or was unwilling to consider the case on its individualmerits[41] The line of authority for which Moxon stands can, however, be distinguishedfrom the present case in which Committee members must determine whether or notMs L is entitled, as a matter of law, to benefits prescribed in the Act. This involvesthe application of statutes and regulations to the facts of her case. It does not involvethe development and application of policies. Nor is there much scope for discretionaryjudgement by Committee members.[42] There is also an important distinction between allowing flexibility in the degreeof impartiality required before recusal becomes necessary and subverting a claimant'sability to even consider challenging the appointment of a Committee member. Ms Lcan either know the identities of her decision-makers and challenge their impartiality,or she cannot. This binary scenario leaves no middle ground that might exist whenconsidering the merits of a recusal application or challenge to the impartiality of aCommittee member.[43] It should be noted that, as the Committees have consistently used the samefictitious names, it might be possible for Ms L to challenge the appointment of someCommittee members if she believes there is a legitimate basis for doing so. However,that possibility does not adequately address the fact Ms L has had more than a decade24 Re Royal Commission on Thomas Case [1982] 1 NZLR 252 (CA) at 277; EH Cochrane Ltd vMinistry of Transport [1987] 1 NZLR 146 (CA) at 150; Turner v Allison [1971] NZLR 833 (CA)at 843; and Lower Hutt City Council v Bank [1974] 1 NZLR 545 (CA).25 Moxon v The Casino Control Authority HC Hamilton M324/99, 24 May 2000 at [49].of dealing with employees of the Ministry, many of whom she believes have treatedher unfairly and dishonestly. The decision of the first Committee that I have referredto at [31] suggests there may be a basis for some of Ms L's concerns. The questionthat then arises is how she can make an informed decision about challenging theappointment of members of a Committee, for example, for bias, if she is preventedfrom knowing their true identities. The answer is clear. She cannot. To concludeotherwise would produce an outcome that is the antithesis of natural justice.[44] As Dr Ellis, senior counsel for Ms L, rightly pointed out, it is no consolationthat the Ministry keeps a record of the real names of all the Committee members andensures that appointments are, in its view, appropriate. Affording proper respect to theright to natural justice requires the affected party to have the opportunity to satisfythemselves that adequate standards have been observed. In the context of a dispute,such as Ms L's reviews before the Committees, the 'equality of arms' principle meansthat she, and not just the Ministry, should have the opportunity to challenge theappointment of Committee members.26The need for legislative authority[45] The debate amongst constitutional scholars about the sources of governmentpower has never been satisfactorily resolved.27 In the present case, it is accepted thatthe prerogative powers are not engaged. Instead, there are in theory, three potentialsources of authority for the Committees to use fictitious names and signatures namely,implied legislative authority, the "reasonably incidental doctrine" and a conceptreferred to as the "third source of government powers". Before examining thosepossibilities, I shall first set the scene by explaining the constitutional principles thatunderpin the need for there to be a source of power for government actions.26 See generally Kracke v Mental Health Review Board [2009] VCAT 646, (2009) 29 VAR 1 at [376].27 See generally Stephen Sedley Lions under the Throne (Cambridge University Press, Cambridge,2015) at 209–228. Compare Malone v Metropolitan Police Commissioner [1979] Ch 344, inwhich it was held that the Post Office in Britain could, at the request of the police, tap a citizen'stelephone because no law prohibited it, with the passage from R v Somerset County Council,ex parte Fewings [1995] 1 All ER 513 (QB) cited below at [47].Entick v Carrington[46] Counsel before me both accepted the general proposition that public bodies,such as the Committees, cannot breach a right, such as natural justice, withoutauthority to do so. This principle arises from Entick v Carrington, in which it washeld that the Crown cannot, in the absence of statutory or common law authority,impose a liability or detriment upon a citizen or otherwise interfere with a citizen'sliberty or property.28 Professor Joseph notes "Entick v Carrington established that apositive rule of statute or common law must confer the power" that the Crownwishes to exercise against a citizen.29[47] Modern manifestations of Entick v Carrington can be found in R v SomersetCounty Council, ex parte Fewings, in which Laws J, as he then was, said the followingin relation to public bodies in England and Wales:30 any action to be taken must be justified by positive law. A public body hasno heritage of legal rights which it enjoys for its own sake; at every turn, allof its dealings constitute the fulfilment of duties which it owes to others;indeed, it exists for no other purpose Under our law, this is true of everypublic body. The rule is necessary in order to protect the people from arbitraryinterference by those set in power over them.[48] A similar theme can be observed in Ministry of Transport v Payn, where trafficofficers entered Mr Payn's property to enforce blood-alcohol driving laws.31 Theyrefused to leave when instructed to do so by Mr Payn. The Court of Appeal held thatthe officers became trespassers and could not remain on Mr Payn's property pursuantto an implicit authority. Absent express statutory authority, the traffic officers couldnot forcibly enter private property to enforce the blood-alcohol driving laws.[49] It is common ground that there is no express statutory provision that authorisesCommittee members to use fictitious names and signatures. Nor is there expresscommon law authority for the practice. Mr Radich QC, senior counsel for theMinistry, submitted, however, that there may be implicit statutory authority for the28 Entick v Carrington (1765) 19 St Tr 1029.29 See Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers,Wellington, 2014) at 178–180.30 R v Somerset County Council, above n 27, at 524.31 Ministry of Transport v Payn [1977] 2 NZLR 50 (CA).practice. As foreshadowed at [45], it is also necessary to consider if there may be othersources of authority that permit such a practice.Is there implicit statutory authority?[50] There are two potential sources of implicit authority for the Committees tohave used fictitious names. The first is s 10A of the Act, the key provisions of whichhave been explained at [20]–[26].[51] The second arguable source of authority for Committees to use fictitious namesand signatures is the provisions of the Health and Safety at Work Act, which imposesduties on the Ministry to ensure, so far as is reasonably practicable, the health andsafety of its employees and others. The Health and Safety at Work Act does not,however, require an employer to ensure the complete protection of an employee orother persons. Rather, Parliament's use of the adjectives "reasonably" and"practicable" in s 36 of the Health and Safety at Work Act conveys its intention thatthe Ministry take the steps reasonably available to it to protect its employees andothers, having regard to the non-exhaustive list of factors set out in the definition of"reasonably practicable".[52] There is nothing in s 10A, or any other sections in the Act, that could beconstrued as implicitly authorising Committee members to use fictitious names andsignatures because the practice constitutes a clear breach of Ms L's right to theobservance of the principles of natural justice by the Ministry. Nor can the obligationsplaced upon the Ministry by the Health and Safety at Work Act be stretched to overridethe duty upon the Ministry to observe the principles of natural justice. This is becausethe right to natural justice is so deeply entrenched in both our common law andNZBORA that any legislative restriction on that right would need to be expressed veryclearly and unequivocally. Constricting a citizen's right to the observance of theprinciples of natural justice by a public authority, such as the Ministry, cannot beimplied from the text and purpose of s 10A of the Act or the statutory duties imposedupon the Ministry by the Health and Safety at Work Act.Reasonably incidental doctrine[53] The common law recognises that public bodies such as Committees may,without express statutory authority, do things that are reasonably incidental to theircore statutory powers. The reasonably incidental doctrine evolved in the 19th centuryin response to the ultra vires doctrine in the context of statutory corporations.32Subsequent cases have applied this doctrine to public bodies,33 and its application toCrown entities has now been given statutory recognition in ss 17–18 of the CrownEntities Act 2004. Professor Joseph suggests that, when applied to public bodies, thisdoctrine addresses the conundrums caused by the line of authority arising out of Entickv Carrington. Like the implicit statutory authority concept, the reasonably incidentaldoctrine is based on the requirement that the conduct in question can be traced, insome indirect way, to a statutory power.34[54] The reasonably incidental doctrine enables public bodies to do things that arereasonably incidental to the discharge of their statutory functions provided they do not,in the absence of express statutory or common law authority, curtail the rights andinterests of citizens. Examples of the use of the reasonably incidental doctrine includeleasing a building and purchasing paperclips.35[55] The reasonably incidental doctrine is of no assistance to the Ministry in thiscase because the use of fictitious names by the Committees undermines Ms L's abilityto ascertain if decision-makers are biased or validly appointed, thereby breaching herright to natural justice. The reasonably incidental doctrine cannot be invoked to justifyinfringement of a citizen's rights, particularly a right as fundamental as the right tonatural justice.3632 Attorney-General v Great Eastern Railway Co (1880) 5 AC 473 (HL). Compare Ashbury RailwayCarriage and Iron Co Ltd v Riche (1875) LR 7 HL 653 (HL).33 Attorney-General v Fulham Corp [1921] 1 Ch 440; and Attorney-General ex relatione Lewis vLower Hutt City [1964] NZLR 438 (CA).34 Joseph, above n 29, at 943.35 At 179.36 At 180.The third source of government power[56] The third source of government power refers to a source of authority forgovernment action that is separate from statutory and prerogative powers. ProfessorHarris, who coined the term the "third source of authority for government action" hasexplained that the concept has been referred to by a variety of names, including"common law discretionary powers" and "common law personified powers".37 Theconcept was recognised by the Court of Appeal as a potential source of authority forgovernment action,38 although ultimately the Supreme Court did not need to developthe third source analysis of the Court of Appeal as the government action in questionwas underpinned by statutory authority.39[57] The third source of government power is, however, not a concept that assiststhe Ministry in this case because, as Professor Harris explains, " third-source actionshave no potential to override competing positive law rights". In other words, actionsby the Ministry derived from the third source of government authority cannot overridea citizen's right to natural justice.40Can the law be "developed" in the way the Ministry suggests?[58] Mr Radich submitted that, in the absence of authority for the practice of usingfictitious names and signatures, the courts could develop the law to permit it in rareand exceptional cases. Mr Radich relied upon the House of Lords decision in Scott vScott to demonstrate by analogy how courts may, in exceptional circumstances,develop the common law to overcome the consequences of applying ordinaryprinciples of justice; in that case, the principle that court proceedings should beconducted in public.4137 Bruce Harris "The 'Third Source' of Authority for Government Action Revisited" (2007) 123 LQR225 at 225–226.38 Minister for Canterbury Earthquake Recovery v Fowler Developments Ltd [2013] NZCA 588,[2014] 2 NZLR 587.39 Quake Outcasts v Minister for Canterbury Earthquake Recovery on appeal from Minister forCanterbury Earthquake Recovery v Fowler Developments Ltd [2015] NZSC 27, [2016] 1 NZLR1.40 Bruce Harris "A Call to Maintain and Evolve the Third Source of Authority for GovernmentAction" (2017) 27 NZULR 853 at 855. This statement was adopted by the Court of Appeal inMinister for Canterbury Earthquake Recovery, above n 38, at [77]–[78].41 Scott v Scott [1913] AC 417 (HL).[59] Scott involved a hearing in chambers to determine whether the applicant'smarriage was void because of her husband's inability to consummate their marriage.After associated suppression orders were breached, it became necessary for the Courtsto consider whether there was any jurisdiction to conduct the annulment hearing inchambers contrary to the principle of open justice. Ultimately, the House of Lordsconcluded that in exceptional circumstances a hearing could be held in chamberswhere it was "strictly necessary for the attainment of justice".42[60] The primary concern of the House of Lords was to ensure that justice was donein that proceeding and it accordingly reasoned that it was acceptable to depart fromthe principle of open justice when it was strictly necessary to do so in order to ensureoverall justice between the parties. That is very different from the present case wherethe competing interest advanced by the Ministry is the safety of decision-makers, aconsideration wholly external from justice between the parties. Scott is therefore notpersuasive authority for permitting the Ministry to deny Ms L's right to the observanceof the principles of natural justice.[61] Only Parliament can sanction breaches of Ms L's right to the observance of theprinciples of natural justice by authorising Committee members to use fictitious namesand signatures when determining her applications for review. This is especiallybecause anonymous decision-makers are a rare and unusual feature of a system ofjustice in any jurisdiction that respects the rule of law. I would be trespassing beyondmy constitutional role were I to usurp the functions of Parliament by authorising thepractice followed by the Ministry in this case.Section 5 of the New Zealand Bill of Rights Act 1990[62] Mr Radich submitted that Ms L's right to natural justice, affirmed by s 27(1) ofNZBORA, could be justifiably limited pursuant to s 5 of NZBORA through theMinistry complying with its obligations under the Health and Safety at Work Act.4342 Scott v Scott, above n 41, at 437.43 New Zealand Bill of Rights Act, s 5:Justified limitationsSubject to section 4, the rights and freedoms contained in this Bill of Rights may be subject onlyto such reasonable limits prescribed by law as can be demonstrably justified in a free anddemocratic society.[63] This argument could, however, never assist the Ministry's case, but rather itcreates an additional hurdle that the Ministry would have to overcome. The reason forthis is that the Ministry has to demonstrate some statutory authority to allow itspractice of using fictitious names and signatures. Just because such a practice mighthave been a justified limitation on the right to natural justice under s 5 of NZBORAdoes not mean there is authority for that practice. It simply means that if there wereauthority for the practice, then the practice would not be inconsistent with NZBORA.Regardless, I address the NZBORA analysis below for the sake of completeness.[64] Following the approach of the Supreme Court in R v Hansen, I shall firstdetermine if the Ministry's duties under the Health and Safety at Work Act are arguablyinconsistent with Ms L's rights under s 27(1) of NZBORA.44 The answer to thisquestion involves ascertaining the meaning of the relevant provisions of the Healthand Safety at Work Act by reference to the text and purpose of that legislation anddetermining whether that meaning gives rise to an arguable inconsistency with s 27(1)of NZBORA.45[65] It is at this point the approach taken by the Ministry hits a furtherinsurmountable hurdle. This is because, as I have previously emphasised, the Healthand Safety at Work Act places a qualified obligation on the Ministry to ensure that thehealth and safety of its employees and other persons is not put at risk, "so far as isreasonably practicable".46 The Health and Safety at Work Act does not confer powerson the Ministry to take any steps in relation to Ms L, and its obligations under theHealth and Safety at Work Act cannot be interpreted as placing a requirement on theMinistry to breach its duty to observe the principles of natural justice.[66] If further support for this conclusion is required, one need only consider theefficacy of the steps the Ministry may reasonably and practicably take to protectCommittee members from perceived risks of harm to their health and safety frompersons such as Ms L. Those steps, many of which the Committees already take,include:44 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.45 See Claudia Geiringer "The Principles of Legality and the Bill of Rights Act: A CriticalExamination of R v Hansen" (2008) 6 NZJPIL 59 at 68–69.46 Health and Safety at Work Act 2015, s 36.(1) managing and hearing Ms L's case by persons who are physicallyremote from her and in circumstances where she cannot enter a buildingand see the Committee members;(2) protecting Committee members from direct and face-to-facecommunications from Ms L, by requiring communications to bethrough mail or electronic form, or conducted by telephone conferenceor by agents alone;(3) making available counselling and other rehabilitative procedures forany Committee member who is distressed or otherwise affected byMs L's behaviour; and(4) referring Ms L's conduct to the police if it is thought she has or maycommit a crime.[67] Nothing advanced by the Ministry demonstrates why it is necessary to take theadditional and extraordinary step of Committee members using fictitious names andsignatures when releasing their decisions and in circumstances where doing sobreaches the Ministry's obligations under s 27(1) of NZBORA. This conclusion isunderscored by the fact that the first of the Committees that heard Ms L's currentapplications used their real names and signatures without any hint of adverseconsequences for the members of that Committee.[68] My conclusion that the text and purpose of the relevant provisions of the Healthand Safety at Work Act are not inconsistent with s 27(1) of NZBORA renders itunnecessary to examine s 5 of NZBORA. But, in any event, I add that limiting Ms L'srights under s 27(1) of NZBORA could not be justified under s 5 of NZBORA. Thisis because, as the Court of Appeal explained in Drew v Attorney-General, where theprinciples of natural justice are engaged there is "no room and no need for theoperation of s 5" of NZBORA.47 What the Court of Appeal was saying in Drew is thatthe rights to natural justice are so inviolate that they cannot be justifiably limited in a47 Drew v Attorney-General [2002] 1 NZLR 58 (CA) at [67].free and democratic society. In large part, this is because the principles of naturaljustice already internally balance the competing interests at stake.48[69] The conclusions I have reached in relation to the first question posed by theAuthority may be distilled to the following points. First, the use of fictitious namesand signatures by Committees breached Ms L's right to the observance of theprinciples of natural justice. Second, there is no legislative or common law authorityfor Committees to have used fictitious names and signatures when determining Ms L'sapplications. Third, the common law cannot be "developed" to permit the practicefollowed by the Committees in this case. Fourth, s 5 of NZBORA cannot be invokedto salvage the Committees' practice of using fictitious names and signatures. Theseconclusions lead ultimately to my decision that, absent express legislative authority,the Committees could not use fictitious names and signatures when determiningMs L's applications.PART IVTHE SECOND QUESTION POSED BY THE AUTHORITY[70] The answer to the first question posed by the Authority renders it unnecessaryto dwell upon the second question it has asked this Court to answer.[71] It is sufficient to record that even if the Authority had a discretion to grant theMinistry's application to withhold the true names of the members of the Committeesfrom Ms L, there was no necessity to do so.[72] The reasons for this are primarily factual, but must be considered in light ofthe importance of natural justice, as I have outlined earlier in this decision. If therewere a discretion to allow Committees to use fictitious names, there would need to bea very high threshold before it would be appropriate to exercise such a discretion. Iam far from convinced that Ms L's case comes close to meeting that high threshold.In particular, I note that:48 See also Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255(HL) at 1263.(1) Ms L has never directed any threats or abuse to a member of aCommittee.(2) The police have previously assessed Ms L as being harmless andunlikely to carry out her threats.(3) The courts have, when considering Ms L's abusive and threateningbehaviour, treated her very leniently. This indicates that her conduct,whilst criminal, was not considered particularly serious.(4) The other practical measures put in place by the Ministry to protectmembers of the Remote Client Unit and the Committees haveadequately ensured the health and safety of those who might otherwisehave been adversely affected by Ms L's conduct.(5) Other employees of the Ministry, such as Mr van Ooyen, have notconsidered it necessary to disguise their true identities when dealingwith Ms L.(6) As noted at [67], one of the Committees that considered Ms L'sapplications used its real names and signatures without incurring anyissues or difficulties.[73] In finding for Ms L in this case, it should not be thought that I countenance herconduct. On the contrary, I consider her abusive and threatening communications tobe totally unacceptable. Nevertheless, the Ministry did not act lawfully when it tookthe extraordinary step of having members of the Committees issue their decisionsusing fictitious names and signatures.PART VCONCLUSION[74] The two questions posed by the Authority and set out at [9] are answered "No".That is to say, the Authority did not err in law in stating that there was an absoluteprohibition on statutory decision-makers using false names and signatures in theabsence of express statutory authority allowing such conduct. The Authority also didnot, in any event, err in disallowing anonymity in the circumstances of this case.[75] Ms L is entitled to costs on a scale 2B basis. This was a case that justified twocounsel.____________________D B Collins JSolicitors:Crown Law Office, Wellington for AppellantNat Dunning Law, Wellington for Respondent