A woman challenging the lawfulness of the Government's decisions to suspend and then cancel her New Zealand passport has seen the High Court provide a summary for cases involving classified information.
In early May 2016, then-Internal Affairs Minister Peter Dunne cancelled the Australia-based Kiwi woman's passport on national security grounds.
Dunne used powers available to him under the Passports Act to cancel the woman's travel documents.
He was able to do so if he believed the passport holder was intending to take part in terrorism, or the proliferation of weapons of mass destruction in another country, or cause serious economic damage to New Zealand.
After the woman's passport was cancelled she made an application for a judicial review of the decisions. However, Crown Law said the case involved classified security information (CSI) and withheld the material explaining why the decisions were made.
In a judgment released publicly yesterday following a May 2 hearing, Justice Robert Dobson said such issues have been raised by appellate courts in the United Kingdom and Canada but not yet in New Zealand.
He ruled in April last year that the High Court was also satisfied a closed court procedure would apply to the case for the protection of the CSI.
Judges will often clear members of the public from a courtroom during proceedings to discuss relevant aspects of the law with counsel and media, however, a judge can only hold a hearing devoid of the press if it is prejudicing the security or defence of New Zealand.
The woman's case has since been held in secret, including in March, when a two-day hearing in the High Court in Wellington raised eyebrows among the legal and media fraternities.
The self-represented woman, whose identity is suppressed, has been unable to attend the hearings and also lodged an appeal with the Court of Appeal which was later abandoned.
But Justice Dobson has also appointed special advocates, who have attended the closed hearings to assist the court when considering the classified information.
The advocates and Justice Dobson were given access to all the documents claimed to contain CSI on February 28 this year, the decision reads.
After an initial assessment, the advocates requested time to undertake more detailed analysis and to prepare arguments challenging the CSI claims to some of the material.
The Crown's approach to the CSI material gave primacy to maintaining its secrecy and said it was important the Crown retained control over the material in all circumstances.
"Whist the court may not be satisfied as to the desirability of withholding the information from the affected person for the protection of the CSI, that does not compel disclosure," Justice Dobson wrote.
A special advocate said there were five possible reasons why the CSI should not be withheld from the woman.
The reasons were: If it was sourced from her; if a security agency relied on interception or surveillance warrants that have expired; if the sources of information are derived from publicly known information-sharing arrangements between security agencies; if the information was already in the public domain; and whether the information was in fact relevant to the decisions.
Justice Dobson said affidavits from security officers explaining the reasons for secrecy should also explain the grounds and risks arising from disclosure.
The judge further offered the hypothetical scenario for information potentially sourced from the affected person.
"If the person has, say, said to a terrorist organisation that he or she is capable of making a particular type of bomb, then that person should surely know that the minister learnt of it and took it into account in deciding to cancel their passport," he said.
The judge also said possible arguments that the minister was not fully informed, or that the report unreasonably rejected or downplayed information, cannot be advanced unless access is provided to all the information available to those intelligence officers.
In Justice Dobson's summary of CSI-related cases, he said a rigorous approach will apply to claims for the need to maintain CSI secrecy.
Security agencies are obliged to provide all relevant information to the court, but not routinely obliged to seek consent to disclose CSI from sources, he said.
Disclosure, Justice Dobson continued, is not expected where sourced from the affected person or publicly available, but such sources increase onus to justify prejudice claims.
A court supervised summary of CSI provided to the affected person should also be provided to allow them to get the "gist of the case", but the Crown may withdraw items of CSI to exclude content from the summary.