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SIS - ruling by the Appeal Court



6 July 1999



IN THE COURT OF APPEAL OF NEW ZEALAND
CA217/98

BETWEEN
ABDUL AZIZ CHOUDRY

Appellant

AND
THE ATTORNEY-GENERAL

Respondent

Hearing:
20 April 1999

Coram:
Richardson P
Thomas J
Keith J
Blanchard J
Tipping J

Appearances:
R E Harrison QC for Appellant

J J McGrath QC and E D France for Respondent

Judgment:
6 July 1999
JUDGMENTS OF THE COURT

RICHARDSON P, KEITH, BLANCHARD AND TIPPING JJ

Background

[1] In these proceedings Mr Choudry seeks damages for trespass and compensation for breach of his rights under the unreasonable search provisions of s21 of the New Zealand Bill of Rights Act 1990. His claim arises from the covert entry into his premises, by officers of the New Zealand Security Intelligence Service.
[2] In the judgments of 9 December 1998 the court dealt with two interlocutory appeals. The first concerned the interception warrant. The court concluded that the warrant did not and could not empower the entry or breaking and entry into Mr Choudry's premises. That is no longer in issue. The second concerned a claim to public interest immunity made by the Prime Minister in respect of some 70 documents discovered by the Attorney-General. The court's task in this situation is to consider both the public interest in maintaining the documents' confidentiality and the public interest in the effective administration of justice. There were two factors which we said caused us to hesitate before deciding whether to defer to the Prime Minister's certificate. The first was the breadth of the statutory terms "security" and "national security" and the wide variety of meanings which those words may bear and relating both to the substantive content of information and the processes by which security information is col lected and transmitted. The second and related factor was the limited information given in the sparse ministerial certificate before the court. That certificate is set out in the earlier judgment.
[3] The judgment of Richardson P, Keith, Blanchard and Tipping JJ, supported by the concurring judgment of Thomas J, concluded that, given the deference that is paid to the minister's certificate, the minister preparing that certificate in a security claim should accept the need for the very greatest particularity in describing the true nature of the present risks of disclosure. Importantly, the judgment emphasised that in doing so the Minister is not expected to reveal information that it is the very purpose of the claim to keep secret and continued: The Minister's certificate should, to the extent that to do so is not incompatible with national security, identify and describe each document; explain why immunity is being claimed for that document; and state why appropriate editing will not be sufficient to protect the security interests involved. In the present context regard should be had to the breadth of the definition of "security" in s2 of the New Zealand Security Intelligence Service Act 1969. Where public interest immunity is claimed for a document on the ground that its production would be prejudicial to security, the certificate should indicate what aspect of security in s2 is in issue. The certificate should indicate where in the spectrum of security concerns each particular document falls.
[4] The court gave the Attorney-General the opportunity to reconsider the matter in the light of the expressed concerns as to the adequacy of the existing certificate. In the result the Prime Minister has given a further certificate, a copy of which is annexed to these judgments. We have received further written and oral submissions from counsel and have also considered 20 documents previously withheld from disclosure which, in terms of the further certificate, have been disclosed either in full (two documents) or with editing (18 documents).

Rival arguments


[5] The Solicitor-General submitted that the further certificate was adequate to enable the court to conclude that the public interest claim to immunity from disclosure should be upheld. The certificate itself notes that the Prime Minister took advice from the Solicitor-General as to the applicable legal principles which in relation to the present certificate are as enunciated in the court's decision. Further, it records that the Prime Minister personally reconsidered the documents the subject of the claim to immunity applying the relevant legal principles.
[6] The Solicitor-General submitted that the certificate makes it quite clear that the security concerned is of an ongoing nature and relates to an operational matter. The documents subject to the immunity claim contain information as to both the substance of an operation as well as to operational methodology, including information which if disclosed would reveal the name(s) of target(s) of an interception warrant. Where editing is possible that technique has been adopted. Where not possible, the certificate explains why that is so.
[7] In two respects the information is not particularised in the way suggested by the court in its earlier judgment. First, the certificate does not state which aspect of national security is involved. Second, the information is not broken down on a document by document basis. As to both of those matters, the Solicitor-General submitted, the certificate explains that it is not possible to so particularise matters without revealing information which it is the very purpose of the claim to keep secret. As well, he submitted that the certificate meets the purposes underlying a document by document assessment because sufficient information has been given to identify the constituent elements of the concerns and in that way to make it clear where the balance lies. In that regard the further certificate, especially when read alongside the list of documents, provides a much more detailed categorisation and description of the documents.
[8] Mr Harrison QC, for Mr Choudry, submitted that the further certificate is inadequate because it leaves in doubt the security interest to be balanced, with the consequence that inspection by the court is required in order to carry out the balancing exercise. He emphasised that the Minister has failed, and indeed expressly has declined, to state the nature of the security interest or interests in question and has been unwilling to specify even in the most general terms which facet of the definition is relied on.
[9] Mr Harrison submitted that we do not know whether the security interests are at the top end of the scale, involving terrorism, sabotage or subversion, or at the lower end of the scale, aimed at making a contribution to New Zealand's international well-being or its economic well-being. Further, the statement that the documents contain information both as to the substance of an operation and as to operational methodology, conveys nothing that is not already obvious. In particular the further certificate does not make it clear whether and to what extent other operational methods of the Security Intelligence Service would be disclosed and why their disclosure would be harmful or could not be handled by means of selective editing.
[10] His submission was that the Crown's contention that it could not go into greater detail because to do so would reveal that which ought to be kept secret, in effect substitute the mantra of secrecy for the mantra of national security and, in those circumstances, the court would not be carrying out a balancing exercise at all if it deferred to the certificate without inspecting the documents for itself.

General discussion


[11] This case concerns the process for the preparation by the responsible Minister of the certificate, its content and wording, and the judgment to be made of the Minister's claim for non disclosure against the competing public interest in disclosure to enable justice to be done. All of these matters are to be seen in the context both of the general movement of the law towards more open government and of the protection of national security.
[12] That general movement appears in the public interest immunity cases decided over the last four decades, mentioned in the earlier judgments in this matter, in legislation, notably the Official Information Act 1982, and in related official policies and practices. The movement is in turn part of the growth of greater controls over public power developed in recent decades by Parliament and the Courts. The development of those wider controls and the movement to more open government have always, of course, been accompanied by balancing factors or limits, in particular in respect of matters of national security, an area which is often associated with defence and international relations.
[13] Both Courts and legislatures have at times seen those areas as non justiciable, or as barely justiciable, or as requiring judicial deference to Ministerial exercises of discretion. Those positions have been seen in court rulings relating to governmental decisions and processes, for instance:

determining foreign and defence policy : thus the House of Lords ruled that there can be no challenge in court to the exercise by the Crown of its exclusive discretion concerning the disposition and armament of armed forces; that is true also of treaties and alliances for mutual defence, Chandler v DPP [1964] AC 763, 790-791, 796, 800, 813; and indeed for the making of treaties in general, eg R v Foreign Secretary, ex parte Rees Mogg [1994] QB 552, 569-570
characterising certain goods as urgently required for requisition in connection with the defence of the realm, the prosecution of the war, or other matters involving national security. "Those who are responsible for the national security must be the sole judges of what the national security requires. It would obviously be undesirable that such matters should be made the subject of evidence in a Court of law or otherwise discussed in public," The Zamora [1916] 2 AC 77, 107 (PC) (although see the actual result in that case)
supporting the Court's inherent jurisdiction to protect the names of witnesses who are employed by the Security Intelligence Service, Taylor v Attorney-General [1975] 2 NZLR 675
denying or severely limiting natural justice to immigrants or to state employees or the right of unions to be consulted, eg R v Home Secretary ex parte Hosenball [1997] 3 All ER 452; Chiarelli v Canada (Minister of Justice)(1992) 90 DLR (4th) 289, 310-313 (SCC); CCSU v Minister for Civil Service (the GCHQ case) [1985] AC 374; in the last, Lord Fraser (402) quoted the two sentences quoted above from The Zamora and Lord Diplock said flatly that national security "is par excellence a non-justiciable question. The judicial process is totally inept to deal with the sort of problems which it involves" (412).

[14] But courts do not of course always abstain or defer. In recent decades they have applied wider powers of review. Thus
the Supreme Court of Canada has held that the prerogative power relating to defence may be subject to a challenge under the Charter of Rights, Operation Dismantle v The Queen [1985] 1 SCR 441 (although the particular challenge failed)
courts in several jurisdictions have rejected challenges, based on claimed threats to Britain's national security, to the release of the Spycatcher (The Spycatcher Cases[1989] 2 FSR; compare Attorney-General v Turnaround Distribution Ltd [1989] 1 FSR 169 (Simon Brown J)) as did the United States Supreme Court in respect of The Pentagon Papers (New York Times Co v United States (1971) 403 US 713)

a New Zealand naval officer was held entitled to natural justice in respect of decisions affecting his grading notwithstanding arguments of national security (Bradley v Attorney-General [1988] 2 NZLR 454).
[15] The same tension between openness and protection is to be seen in actions taken by Parliament. While it has frequently taken steps to protect national security, once again, as with the Courts, it has sometimes narrowed the protection. For present purposes it is enough to call attention to certain features of the legislation mentioned in the previous judgment in this case : the distinction between the substance of information and the means of obtaining it; the distinction between foreign and domestic sources of information; and, particularly, apparently conclusive Ministerial powers exercisable for prescribed security reasons to prevent access to information and to neither confirm nor deny the existence of information. One power within that final category (Crown Proceedings Act 1950 s27(3)) was narrowed in 1982 to give it a focus consistent with the new policy of openness being introduced at the same time by the Official Information Act, but it is significant that, notwithstanding that change in poli cy, the Attorney-General under that provision, as under s4A(7) of the New Zealand Security Intelligence Service Act 1969, retained an apparently conclusive power of veto. Those powers have not been invoked in the present case and, as we noted in the earlier judgment, they are not relevant. But their existence and their particular focus do emphasise the special position in the law of certain national security interests.
[16] That special position has also been recognised in public interest immunity judgments. Thus North J in this court in Corbett v Social Security Commission [1962] NZLR 878, 905, quoted the passage set out earlier from The Zamora. Lord Reid in Conway v Rimmer [1968] AC 910 did not doubt that a document must not be disclosed if its content would really injure the national interest (950), and in asserting the court's power to examine the reasons for and against disclosure said this : I would therefore propose that the House ought now to decide that courts have and are entitled to exercise a power and duty to hold balance between the public interest, as expressed by a Minister, to withhold certain documents or other evidence, and the public interest in ensuring the proper administration of justice. That does not mean that a court would reject a Minister's view : full weight must be given to it in every case, and if the Minister's reasons are of a character which judicial experience is not competent to weigh, then the Minister's view must prevail. (952, emphasis added)

[17] This court in Environmental Defence Society Inc v South Pacific Aluminium [1981] 1 NZLR 153, 156, speaking of the discretionary power of inspection, stated that "it will be sparingly exercised as regards Cabinet or Executive Council papers. In some kinds of cases, the obvious example being national security, it is highly unlikely that the Court would ever go so far".
[18] It is the case that these comments were not made in respect of claims to the protection of documents on national security grounds. That is true as well of the comment, quoted in our earlier judgment, by Lord Simon of Glaisdale in D v National Society for Prevention of Cruelty to Children [1978] AC 171, 233, about the near conclusive character of a ministerial certificate concerning national security in its strictest sense. They are nevertheless of real importance in the present case.
[19] Public interest immunity cases relating directly to national security are relatively rare and inspection or disclosure even rarer. (Rankine v Attorney-General (1992) 6 PRNZ 484 is one of the rare exceptions.) While the Courts have made it plain that they are the ultimate arbiters and they are not bound by the executive's certificate in national security matters (in the absence of special legislation to the contrary) they have indicated that the secrecy of the work of an intelligence organisation is essential to national security and the public interest in national security will seldom yield to the public interest in the administration of civil justice : Church of Scientology v Woodward (1982) 154 CLR 25, 76. The English Court of Appeal, having quoted extensively from Conway v Rimmer and the GCHQ case, put the matter in this way in Balfour v Foreign and Commonwealth Office [1994] 1 WLR 681, 688: In this appeal Mr Allen boldly invites this court to depart from these powerful dicta, contending that they were obiter and that in the society in which we now live the time is ripe for what he described as a more open approach when issues of national security are raised by the appropriate ministers. Even if not constrained by authority we firmly decline to accept that invitation, for it seems to us to be contrary to principle and to good sense. In this case the court has not abdicated its responsibility, but it has recognised the constraints placed upon it by the terms of the certificates issued by the executive. There must always be vigilance by the courts to ensure that public interest immunity of whatever kind is raised only in appropriate circumstances and with appropriate particularity, but once there is an actual or potential risk to national security demonstrated by an appropriate certificate the court should not exercise its right to inspect.

[20] Four Canadian cases decided between 1984 and 1989 challenging, in all cases unsuccessfully, national security certificates help highlight the judicial role and its limits when faced with a national security challenge, see : Re Goguen and Albert and Gibson (1984) 7 DLR (4th) 144 (FCA) (access refused to members and former members of the RCMP charged with breaking and entering to commit theft in the course of an operation by the Security Service); Gold v The Queen in Right of Canada (1986) 25 DLR (4th) 285 (FCA); Re Kevork and The Queen (1984) 17 CCC (3rd) 426 (FCTD) (access refused to defendant charged with attempted murder and conspiracy to murder); and Re Henrie and Security Intelligence Review Committee et al (1989) 53 DLR (4th) 568 (FCTD).
[21] In rejecting the applications for disclosure the Courts have consistently emphasised the essential character of national security. They have even gone back to Cicero in De Legibus : "Salus populi est suprema lex." (Kevork at 439 quoting Thurlow CJ at first instance in Goguen [1983] 1 FC 872, 880-881).
[22] We take two relevant points from these judgments. The first is that the courts have affirmed that even although the executive no longer has an absolute power the certificate and any accompanying affidavit cannot be required to go into such specification and detail as will jeopardise the very purpose for which immunity is claimed (Goguen at 161).
[23] Secondly, the courts have recognised that an item of information, which by itself might appear to be innocuous, may, when considered with other information, prove damaging to national security interests. The "jigsaw effect" has been elaborated in this way: It is of some importance to realize [that] an "informed reader", that is a person who is both knowledgeable regarding security matters and is a member of or associated with a group which constitutes a threat or a potential threat to the security of Canada, will be quite familiar with the minute details of its organization and the ramifications of its operations regarding which our security service might well be relatively uninformed. As a result, such an informed reader may at times, by fitting a piece of apparently innocuous information into the general picture which he has before him, be in a position to arrive at some damaging deductions regarding the investigation of a particular threat or of many other threats to national security. He might, for instance, be in a position to determine one or more of the following: (1) the duration, scope, intensity and degree of success or of lack of success of an investigation; (2) the investigative techniques of the Service; (3) the typographic and teleprinter sy stems employed by CSIS; (4) internal security procedures; (5) the nature and content of other classified documents; (6) the identities of service personnel or of other persons involved in an investigation. (Henrie at 578-579)

[24] Against that background of the law and relevant practice we turn to the circumstances of the present case.

Discussion : this case


[25] In deciding whether to inspect the documents despite the Prime Minister's further certificate, we take as our starting point the fact that in its unwillingness to supply further information the certificate is within the terms of our earlier judgment. In that judgment we recognised that in some cases the provision of further detail or explanation would not be compatible with national security (see para [3] above).
[26] The Prime Minister has expressly certified that to supply further information would itself not be compatible with national security. Her certificate states that this is the position both in relation to which aspect of security is involved and in relation to the document by document issue. Starkly, the question is whether, in spite of this statement by the Prime Minister, the documents should nevertheless be judicially inspected.
[27] The next point which should be noted is that the further certificate is much more detailed and internally cogent than the first. The Prime Minister says she has taken advice on the legal position and has personally reconsidered the documents in the light of the legal principles which apply. She has released certain information. The process followed so far has provided a safeguard against an over wide claim. The Prime Minister states that to disclose which particular aspect of security is involved would, in her considered view, reveal information that it is the very purpose of the claim for immunity to keep secret. She makes the same point in relation to a document by document approach. Nevertheless, within the further certificate, a good deal more information is furnished and in more detail and with greater precision than was the case with the first certificate.
[28] The greater precision appears, first, in the exclusion of the reference, included in the first certificate, to "prejudice to the defence of New Zealand", and, second, in the replacement of the more general reference to the Service's "liaison with other agencies" by particular references to named "local agencies", the Police and the Land Transport Safety Authority. On the latter point, the Minister relates the future damage resulting from the release of information about liaison with the Police only to the compromising of the free flow of information to the Service by the Police and other local agencies - but not by foreign ones.
[29] The new certificate is, secondly, more explicit in that it states that both process (or operational) aspects and substantive aspects of security are involved and it distinguishes between those aspects in a temporal sense : "While the material [on the operational files] relates to a past operation ... that operation relates to an ongoing security concern" (para 10 emphasis added; see also para 7).
[30] Against this background we have grave difficulty in seeing how judicial inspection could responsibly advance matters. A Judge looking at the documents might conclude that on their face they were completely innocuous from the point of view of national security. But against that would stand the Prime Minister's certificate informing the court that disclosure would be contrary to national security. The issue in these terms is hardly justiciable. How would the Judge proceed? On one view, and an obviously incomplete view, disclosure should be ordered. On the other it should not. For the Judge to approach the Prime Minister seeking further information, without reference to Mr Choudry, would be contrary to principle and inappropriate. Being unable to proceed in that matter, there is no way the Judge could properly go behind the certificate. The only satisfactory answer must be that the customary deference paid to and trust placed in such a certificate as the present should prevail. The court simpl y do es not have the expertise or the necessary information to say that the Prime Minister's view of the matter stated in her further, more specific, certificate should not prevail. A certificate that to disclose more would reveal information it is the very purpose of the claim to keep secret must be taken at face value. Ministers of the Crown giving such certificates as these bear a heavy responsibility to appraise themselves of the law and to give the issues arising careful, conscientious and independent consideration. They are accountable in their own arena for the exercise of their powers. Inspection, against a certificate of the present kind, cannot lead to a satisfactory balancing of the competing interests by the court. It could only lead to some intuitive and superficial view that the document under consideration looked harmless enough. But against that it might be a crucial piece in the jigsaw. How could the court's view in such circumstances responsibly prevail over what the court must take to be the conscientious and informed view of the Prime Minister that to disclose more would itself be contrary to national security?
[31] In short the consideration of the competing interests must be undertaken at this stage in the present case on the premise that the Minister has acted responsibly and with justification in certifying that to disclose more would itself jeopardise national security. The Prime Minister has said that the material withheld relates to an ongoing security concern. From this we would infer that any potential legislative changes to the definition of national security do not materially affect the present case. The information relates to both substantive and operational issues, albeit disclosure in either area is obviously capable of being detrimental to national security. Editing has been considered and is said to have been used wherever possible. While we recognise that the law in New Zealand has developed in the direction of greater openness there comes a time when the words of Lord Reid in Conway v Rimmer remain apposite : the Minister's reasons are of a character which judicial experience is not compet ent to weigh. Nor indeed is the judicial process able, responsibly, to go behind a ministerial certificate that to disclose more would itself jeopardise national security.

Result

[1] We would accordingly allow the Crown's cross appeal from Panckhurst J's order requiring the documents to be produced by the Attorney-General for his inspection. That order is set aside.
[2] For the reasons given in the earlier judgment, Mr Choudry's appeal is allowed. The Court's answer to the question put under Rule 418 is that no power of entering or breaking and entering of private premises was conferred by s4A(1) of the New Zealand Security Intelligence Service Act 1969, as in force at the time of entry into the appellant's premises.
[3] Any question of costs can be the subject of memoranda.


THOMAS J

The question in issue


[4] The question in issue in this appeal is whether the documents for which public interest immunity is claimed in the revised certificate of the Minister in charge of the New Zealand Security Intelligence Service should be inspected by the Court.
[5] It is to be stressed at once that the immediate question is not whether the documents should be made public. It is not difficult to make out a strong case for the protection of sensitive intelligence information in the interests of national security. National security is of a special character and requires distinct consideration in the law. Obviously, it would be a self-defeating exercise to publish that which must not be published. In his most capable submission the Solicitor-General made much of this point. The majority, in the draft judgment which I have received and perused, are acutely alert to the danger and cite considerable authority justifying extreme caution in denying the Minister public interest immunity. But, with due respect, the question of publishing sensitive intelligence material contrary to the interests of national security is not the question in issue in this appeal. The Court is concerned with a preliminary step; whether the Court, be it the Judge at first instance or this Court, should inspect the documents for which public interest immunity is claimed. That step will not in itself be a threat to national security.
[6] In Fletcher Timber Ltd v Attorney-General [1984] 1 NZLR 290, the documents in contention for which public interest immunity was claimed by the Crown were Cabinet and Ministerial papers, but various dicta of the Court in that case are also applicable to intelligence documents. The point that judicial inspection would not in itself be a threat to confidentiality and that it provided a direct and practical means of reaching a reasonably confident decision was persuasively made by Woodhouse P (at 295): But where ... the Judge has been left uncertain, it is difficult to understand how his own inspection could affect in any way the confidentiality which might deserve protection. And in that situation I think it would be wrong to put aside such a direct and practical means of resolving the difficulty. Indeed, if it were to happen the primary responsibility of the Courts to provide informed and just answers would often depend on processes of sheer speculation, leaving the Judge himself grasping at air. That cannot be sensible nor is it necessary when by the simple act of judicial reconnaissance a reasonably confident decision could be given one way or the other.
[7] This approach is as sensible for the judicial inspection of intelligence documents as for the inspection of any other class of sensitive documents. Obviously, the question of the actual production of such intelligence documents, as distinct from their inspection by the court, must be much more circumspect. But the issue here is whether or not the court should undertake the "simple act of judicial reconnaissance".
[8] It may well be that the question whether the Court should inspect intelligence documents will only rarely arise. Litigation involving the Secret Intelligence Service is uncommon. When the issue does arise, however, it will be of the utmost importance, simply because it will arise in the context of cases involving one or more of a citizen's fundamental rights, such as the right to privacy, the right to the sanctity of one's home, and the right of every citizen to carry on his or her life free of illegal activity. Presumably, also, the principles which the Court establishes in this case will be applicable to criminal cases as well as civil proceedings. See Sir Richard Scott, "The Acceptable and Unacceptable Use of Public Interest Immunity" [1996] Public Law, 427.
[9] In this judgment, in which I will depart sharply from the judgment of the majority, I propose to make some general points before examining the certificate itself. Certain of the points raise fundamental issues of principle; others represent a call for a more realistic approach to judicial inspection of documents belonging to a covert intelligence agency.
[10] The judgment can proceed under the following headings:


Para(s)
The principle of accountability [43]
Balancing the competing public interests [53]
The "operational" ground queried [61]
The Court's previous judgment [64]
A question of trust? [67]
The nub of the opposition to judicial inspection [76]
The certificate itself [83]

Concluding remarks [95]


[1] Glossary:

(i) In this judgment I will refer to the Prime Minister's further certificate dated 10 February 1999 as the revised or amended certificate. A copy is annexed to the judgments of the Court.
(ii) Although I delivered a separate judgment when the matter came before the Court on 10 November 1998, I will refer to the judgment of the other members of the Court at that time (Richardson P and Keith, Blanchard and Tipping JJ), as "the previous judgment" of this Court. (
iii) When referring to "the majority" I am referring to the majority in the present decision setting aside the order of the Judge at first instance requiring the documents to be produced for his inspection.

The principle of accountability

[2] The judgment of the majority fairly acknowledges the trend towards more open government which prevails in this country. It is evident in the enactment of legislation such as the Official Information Act 1982, and the adoption of complementary policies and practices by the government and governmental agencies. The Court made the same point in the Fletcher Timber case, supra, at 296. Woodhouse P referred to the then contemporary movements towards open government in New Zealand. Modification by the Judges of earlier rules supporting what was thought of as Crown privilege amounted to judicial recognition of evolving public attitudes and reaffirmation of their primary duty in the interests of justice for the Court processes to be kept open, not merely in the sense of being open to public scrutiny, but so far as can properly be achieved by reference to the unhampered progress of litigation as well. See also Richardson J at 302.
[3] Underlying this trend is a fundamental principle. It is the principle of accountability. Those who exercise public power are held accountable for their exercise of it. They may be held accountable directly to Parliament through the political process, or to a parliamentary agency such as the Ombudsman acting in accordance with a statutory mandate, or indirectly by the Courts exercising the judiciary's traditional constitutional function of supervising the use of executive power. The existence of a free and independent news media also plays an important part in the task of holding to account those who exert governmental power over the lives of others. To the extent that those who exercise public power cannot be called to account they are, in a very real sense, placed beyond the law.
[4] The principle of accountability is recognised in s 4(a)(ii) of the Official Information Act 1982. The purpose of the Act is said to be to increase progressively the availability of information to the people of New Zealand in order to "... to promote the accountability of Ministers of the Crown and officials", and thereby "to enhance respect for the law and to promote the good government of New Zealand". The point is not, of course, the applicability of this provision, for it is not applicable, but the fact that the principle of accountability has received statutory endorsement. But even apart from such statutory recognition, it is secure to say that the principle of accountability is not only perceived as a rudimentary attribute of a democracy, but also is deeply embedded in the ethos of New Zealand society. It is this perception and consciousness that has led the Courts in New Zealand to depart from the more conservative approach adopted by the Courts of the United Kingdom towards the issue of pu blic interest immunity.
[5] By the very nature of national security, the Security Intelligence Service cannot be held accountable by Parliament, or any agency of Parliament, in claiming public interest immunity for documents. And the media are kept in the dark. For these institutions to be effective, sensitive intelligence material which should not be disclosed in the national interest would necessarily become public property. The only means by which the Service effectively can be held accountable for its decision as to what or what not to disclose is through the legal process. If the Courts are not prepared to perform this supervisory function, the decisions of the Service to claim immunity will go unchecked. The Service will simply not be answerable in a society which places a high value on the accountability of its public servants.
[6] It is true that a Minister of the Crown is responsible for the Security Intelligence Service. It is also true that a Report of the Minister in Charge of the New Zealand Security Intelligence Service Relating to Interception Warrants is presented to Parliament each year pursuant to s 4A(5) of the New Zealand Security Intelligence Service Act 1969. But these safeguards, as desirable as they might be in themselves, must be viewed with a measure of realism. Each may be touched upon in turn.
[7] Accountability to the Minister in charge of the Service is necessarily incomplete when, by virtue of the nature of the subject matter, the Minister cannot effectively be held accountable in and to Parliament. Other than such information as may be made available to members of the Intelligence and Security Committee established under the Intelligence and Security Committee Act 1996, the Minister must maintain confidentiality. He or she cannot answer questions in the House without publicly breaching the secrecy of the Service. Moreover, without in any way detracting from the competence of a Minister to head the Service, he or she will necessarily be dependent on the Service itself for advice and information. In the present case, for example, the Prime Minister was originally persuaded by senior officers in the Service to sign a certificate claiming public interest immunity for a number of documents which were clearly not prejudicial to national security, and to advance as a ground for claiming immuni ty f or all documents that disclosure would be likely to prejudice the "defence of New Zealand", a ground since renounced.
[8] The Ministerial Reports have been heavily criticised by the Privacy Commissioner in a public report to the Minister of Justice dated 9 February 1999. The Commissioner noted that public expectations concerning the accountability of intelligence agencies have risen considerably since the interception provisions were inserted into the New Zealand Security Intelligence Service Act in 1977. Significant emphasis, he stated, has been placed on accountability of public sector organisations and the rights and liberties of individuals (at 2). Recording that the wording of the annual reports has remained almost identical in the 21 years of reporting, with only details of the number and duration of warrants altering from year to year, the Commissioner stated that a "formulaic approach has been followed which appears designed to offer ritual reassurance but convey minimal information" (at 4). Accordingly, the picture painted by the reports is said by the Commissioner to be "somewhat incomplete" (at 5). The re port s are contrasted with the full public reporting presently undertaken by Australia's main intelligence organisation (at 6-7). The conclusion is readily apparent; the effectiveness of the safeguard provided by the reports rests largely with the Security Intelligence Service itself.
[9] For completeness, reference may be made to the Inspector-General of Intelligence and Security Act 1996. The Act provides for the appointment of an Inspector General to assist the Minister responsible for an intelligence and security agency. His or her function is to ensure that the activities of the agency, including the Secret Intelligence Service, comply with the law. The Inspector-General is to inquire into any act, omission, practice, policy, or procedure of an agency that may have adversely affected anyone in New Zealand and may have contravened the law of New Zealand. The provisions of the Act suggest an operational focus and confirm that the role of the Inspector-General is to investigate complaints which relate to the daily activities of the agency. The jurisdiction of the Court is expressly not affected (s 15). There is nothing in the Act to suggest, and indeed it would be incongruous to suggest, that the Inspector-General has power to investigate a complaint regarding a claim to public interest immunity. That function has traditionally been a matter for the Courts.
[10] Establishing that the only effective means of holding the Security Intelligence Service accountable for its claim to immunity is through the Courts should not obscure the shortcomings inherent in the judicial process. In fact, the inspection of the documents by the Court is itself an imperfect means of control. But it is the best system possible consistent with the objective of preserving the confidentiality of documents required to be kept secret in the national interest. Consequently, while it is to be acknowledged that Judges will be hesitant in directing the disclosure of documents where they possess a doubt as to the implications for security, and that they must reach their decisions in the absence of counsel, the system is the only system available to ensure that the Service will be accountable for its claim to preserve secrecy when confronted with the countervailing public interest of maintaining the fair and effective administration of justice.
[11] Because of the inevitable drive in our society to give effect to the principle of accountability, there will be an increasing tendency for the Courts in this country to inspect documents if and when a claim for public interest immunity is made in respect of intelligence documents. The majority's decision in this case arrests that development. But I do not doubt that, in the fullness of time, New Zealand's distinctive approach and insistence on accountability will be reasserted and reflected in the decisions of the Courts.

Balancing the competing public interests

[1] By virtue of the approach adopted in this country, a party to a proceeding is entitled to the production of relevant documents unless the claim for public interest immunity is properly established, that is, unless the public interest in granting immunity can be shown to prevail over the public interest in ensuring access to documents for the purpose of litigation. See Corbett v Social Security Commission [1962] NZLR 878; Environmental Defence Society Inc v South Pacific Aluminium Ltd (No. 2) [1981] 1 NZLR 153; Fletcher Timber Ltd v Attorney-General, supra; Brightwell v Accident Compensation Corporation [1985] 1 NZLR 132; and Attorney-General v Birss [1991] 1 NZLR 669. Woodhouse P in the Fletcher Timber case (at 294) contrasted the position in New Zealand with the position in England. In England discovery is not granted as of right but only when it is shown to be necessary for disposing fairly of the cause or matter or for saving costs. In this country it is clear that the rules provide much w ider rights than in England. Production is to follow as of right unless avoided by a claim of privilege or of public interest immunity. See also Richardson J at 298-300.
[2] The rules in issue at the time of the Fletcher Timber case were carried forward into the current High Court Rules as Rules 293, 307, and 310. Immunity from the production of documents must still be established. The full and proper discovery of documents is an imperative part of the legal process. Without it, a party is disadvantaged, possibly to a fatal extent, and the overall administration and pursuit of justice suffers accordingly. The admonition of Lord Justice Bingham (as he then was) in Makanjuola v Commissioner of Police [1992] 3 All ER 617, at 623, is apt; "Public interest immunity is not a trump card vouchsafed to certain privileged players to play when and as they wish. It is an exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage in the litigation."
[3] Like any citizen, Mr Choudry is entitled to access to the Courts. He has a right to bring a claim based on an alleged infringement of the law on the part of the defendant. In exercising that right he has the same expectation of receiving justice in a court of law as any other litigant. But to the extent that he is not able to achieve full and proper discovery he is disadvantaged and his right of access to the Courts is correspondingly impaired. He will not be able to obtain the justice to which he is entitled and which other litigants routinely receive. The public interest in the fair and effective administration of justice is not, therefore, an empty slogan. It reflects the rights of every citizen, including Mr Choudry.
[4] Consequently, the claim to public interest immunity must be balanced against this public interest and, to succeed, must outweigh it. Unless the Courts are to be "awe-struck by the mantra of national security" this exercise must be taken seriously. It necessarily requires the Court to balance, or to do its best to balance, the competing public interests. But no real or effective balancing of the competing public interests is possible if the Court has no material before it other than the Minister's certificate to weigh against the public interest in the fair and effective administration of justice. The Court is obliged to consider the reasons for claiming public interest immunity proffered by the Minister and not the substantive content of the documents themselves. In such circumstances it is a fiction to claim that the competing public interests are being balanced one against the other.
[5] I therefore reject the argument of the majority that the balance can be struck by requiring the Minister to furnish a proper certificate. Neither the Minister nor the Service are in a position to balance the claim for immunity against the public interest in the fair and effective administration of justice. The Service can make out a case for not disclosing a document in the interests of national security, and the Minister may appreciate the importance of not seeking immunity unless it is genuinely necessary for reasons of national security, but the essential balancing exercise to determine where the weight of the public interest rests can only be carried out by the Court. In some cases the information in the certificate may suffice, but in more, if not most, cases judicial scrutiny of the documents will be required before it realistically can be said that one public interest has been truly balanced against the other.
[6] I refer again to a dictum of Woodhouse P in the Fletcher Timber case (at 295): It is in the ... situation of uncertainty or doubt as to where the balance of public interest lies that a Judge is entitled to and will inspect the documents in order to resolve the doubt. It will be done not as a kind of independent precursory process of its own but as part of the whole process of weighing the competing public interests - in the one area the degree of confidentiality needed for the public documents and in the other the demands of fairness and justice.
[7] It is perhaps apposite in this context to repeat the vital public interest which underlies the competing interests of maintaining secrecy pertinent to national security and ensuring the proper administration of justice. This underlying and dominant consideration, also acknowledged in the Court's previous judgment (at 24), is the public interest in ensuring effective judicial supervision when determining a claim for public interest immunity. That interest is well articulated in the Canadian case of Gold v Canada (1986) 25 DLR (4th) 285, at 292: ... its [effective judicial supervision] credibility is dependent on a public appreciation that the competing interests are, in fact, being judicially balanced. It will not be well served if it appears that the exercise of judicial discretion is automatically abdicated because national security is accepted as so vital that the fair administration of justice is assumed incapable of outweighing it. [8] The view of the Rt Hon Lord Justice Simon Brown quoted in my earlier judgment from his article "Public Interest Immunity" [1994] Public Law 579, at p 589, also bears repeating:
The very words "national security" have acquired over the years an almost mystical significance. The mere incantation of the phrase of itself instantly discourages the court from satisfactorily fulfilling its normal role of deciding where the balance of public interest lies.

The Court cannot and should not diminish the important judicial role of balancing the competing public interests and determining where the balance of public interest lies.

The "operational" ground queried

[9] In the certificate, the Prime Minister has not sought to justify immunity on a document by document basis. It is claimed that this level of particularity would result in information being revealed which it is the very purpose of the claim to keep secret. Rather, the certificate makes repeated reference to the impact of disclosure on the "operational methodology" or "operational effectiveness" of the Service. Other phrases such as "of an operational nature", "operational decisions", and "operational material" are used throughout the certificate. The problem with this ground is its sheer breadth.
[10] It is difficult to imagine any aspect of the Service which could not be said to bear upon its operational methodology or operational effectiveness. The Service is largely an operational organisation. The phrases "operational methodology" or "operational effectiveness" are only slightly narrower than phrases such as "the Service's methodology" or "the Service's effectiveness". Unless, therefore, the Minister can be more specific in indicating the respects in which disclosure of a document would be detrimental to the Service's operational methodology or effectiveness, this ground becomes a formula for obtaining an expansive blanket immunity for all documents that the Service chooses to regard as operational. Although not a class claim for immunity, which it is conceded could never succeed, it in effect becomes a class claim by virtue of the pervasiveness of operational matters in the Service's operation.
[11] Virtually by definition, therefore, any claim to immunity based on operational requirements will be applicable to a wide range of security documents. Under the guise of particularity, the claim obtains for the Service much the same protection as the original certificate that was worded in unacceptably general terms. Indeed, if this broad ground is accepted without question it will never be possible to insist upon a certificate which will meet this Court's considered prescription for a certificate as set out in its previous judgment (at 22-24). The formula becomes an effective means of circumventing the balancing exercise.

The Court's previous judgment

[1] I am unable to accept that the majority's decision to reverse the Judge at first instance's decision to inspect the documents is consistent with the Court's previous judgment. It is correct that the judgment emphasised that the Minister was not expected to reveal information it is the very purpose of the claim to keep secret, but it could not have been contemplated that this ground would have the general application now claimed for it. The Court's task is clearly spelt out in the judgment (at 18). It is "to balance the public interest in maintaining the documents' confidentiality against the public interest in the effective administration of justice". Later the Court referred with approval (at 23) to Woodhouse P's endorsement of the dictum of Mason J in Sankey v Whitlam (1978) 142 CLR 1, at 96:
...[a]n affidavit claiming Crown privilege should state with precision the grounds on which it is contended that documents or information should not be disclosed so as to enable the court to evaluate the competing interests.
It concluded (at 23):

The Court must be left convinced that matters of security do in fact outweigh the need for disclosure in respect of each document.
[2] The Court then stated that the Minister's certificate, to the extent that to do so is not incompatible with national security, should identify and describe each document, explain why immunity is being claimed for that document; and state why appropriate editing will not be sufficient to protect the security interests involved. It added (at 24): Such precision is needed because the credibility of effective judicial supervision is dependent on a public appreciation that the competing public interests are, in fact, being judicially balanced. That purpose will not be well served if it appears that the exercise of judicial discretion is automatically abdicated because all claims of security are accepted as so compelling that they must prevail over the fair administration of justice: see Gold v Canada at 292. The Minister in asserting public interest immunity is not purporting to carry out a balancing exercise and, indeed, may be unaware of the competing interests involved. Balancing those interests is a judicial function and the Court must therefore be sufficiently informed to carry out that responsibility. (Emphasis added).

[3] To accept that the Minister's revised certificate, although more comprehensive than the original certificate, places the Court in a position of being sufficiently informed to responsibly carry out the judicial function of balancing the competing interests is for the Court to succumb to a convenient pretence. Nor, when the credibility of effective judicial supervision is dependent on a public appreciation that the competing public interests are, in fact, being judicially balanced, is the contemplated credibility achieved. With respect, it would seem to me that there can be no argument but that the Court has retreated from the position it adopted in its previous judgment. A question of trust?
[4] In declining to direct that the documents in issue be inspected by the Court, the majority repose their trust in the Minister to refrain from claiming immunity for documents which, if disclosed, would not in fact prejudice national security. This trust is openly acknowledged. Thus, having referred to the difficulties facing a Judge on inspection, the majority state that the customary deference paid to and trust placed in such a certificate as the present should prevail (para 30). They conclude that the Court's necessarily superficial and intuitive view could not responsibly prevail over what it must take to be the "conscientious and informed view of the Prime Minister that to disclose more would itself be contrary to national security" (ibid). No explicit acknowledgement is necessary, of course, as a refusal to permit judicial inspection means that the certificate must be accepted for what it says on its face. It is inevitably a matter of trust.
[5] I am not prepared to denigrate the idea of trust. In many situations it no doubt ranks as a human virtue. But in the context of a case involving the Court's responsibility to determine a claim for public interest immunity and balance important competing public interests, one of them the fair and effective administration of justice itself, the Court's trust must be tempered with realism. When that is done it can be seen that this unquestioning trust is misguided.
[6] I reach this conclusion without being critical of the Prime Minister in signing the certificate. I accept that she approached the task of preparing and completing the amended certificate conscientiously and in good faith, alert to the importance which the Court would place upon it. Nevertheless, certain aspects of the process need to be borne in mind.
[7] First, the Prime Minister is the Minister in charge of and responsible for the Service. She is not independent of the Service in the sense that Parliament and the Courts are independent of it. Further, as I have previously observed, it is to be realistically appreciated that the certificate is initially prepared by senior officers of the Service who, by virtue of the very nature of their work and their own conscientious performance of their task, may be over-zealous in their perception of the secrecy which is required. Nor, by virtue of the secrecy which attaches to the Service's advice, can the Minister in charge look elsewhere for assistance or verification. The Minister is very much dependent on the Service.
[8] Secondly, there is an apparent inconsistency between the majority's deprecation of the competence of Judges to assess the sensitivity of the documents and the trust placed in the Minister in charge of the Service to do the same. Apparently, the nuances and intuitive deductions which form part of the specialist capability required for covert intelligence operations are beyond Judges but will be quickly assimilated by the Minister in charge of the Service. Certainly, the Minister working with the senior officers of the Service may seek and obtain more advice and information relating to particular documents, but it is advice and information emanating from within the Service itself. It is not difficult to perceive that in reality the Minister in charge will be close to and heavily dependent on the Service, and that this closeness and dependency will necessarily impair the objectivity which he or she can bring to bear in assessing the sensitivity of particular documents.
[9] To illustrate this point reference may be made to the prosecution brought under s 1 of the Official Secrets Act 1911 in the United Kingdom in 1977 known as "the ABC case". The Attorney-General at the time was persuaded by MI5 to authorise the prosecution against three defendants. Notwithstanding that it became known that the security service had secretly vetted the jury, the trial proceeded. It became a farce. Documents which security service witnesses claimed would, if disclosed, be a danger to national security were shown to be public knowledge, at times the publication having been authorised by MI5 itself. The prosecution under s 1 was discontinued. Two defendants were given conditional discharges and one a suspended sentence in respect of the much less serious offences under s 2 of the Act. Editorials called for the Attorney-General to resign or, at least, to explain why he had authorised an oppressive prosecution. The terms of his explanation are telling in their relevance to the present poin t. He said:
"I personally and critically questioned those who made the damage assessment ... How could any responsible Attorney General ignore the unanimous views presented to me that evidence of both the material collected by Campbell [one of the defendants] and the information imparted by Berry [another defendant] could do damage ranging from serious to exceptionally grave to the national security?" (Emphasis added). (See Geoffrey Robertson, The Justice Game (Vintage - 1999) Chap. 5, pp 104-134; the above quotation is at p 133).
[10] Thirdly, it should not be overlooked that the Service is a covert intelligence agency. It is by definition not an open organisation accustomed to outside scrutiny. It will not welcome that scrutiny. Its officers are by virtue of their occupation practised in the art of deception. The Service, as with any covert intelligence agency, will strive under the cloak of secrecy to protect this country from perceived subversive interests and hostile forces. There is no reason to suspect that its officers will not believe, perhaps passionately, in the importance of their task or that they will be anything other than assiduous in carrying it out. Once it is accepted that the trust necessary to accept the certificate on its face is in reality a trust reposed in or embracing the covert intelligence agency itself, the manifestation of such abiding judicial trust seems strangely out of place.
[11] In this context, it is illuminating to have regard to the findings of Sir Richard Scott, Vice-Chancellor, in his Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, 1995-1996, H.C. 115, (February 15, 1996), The Scott Report, relating to the Matrix Churchill case. Public interest immunity had been claimed for intelligence documents in the course of a criminal prosecution. In his comprehensive Report, Sir Richard was scathing in his criticism of the Government's attitude to disclosure. It was, he said, "throughout consistently grudging" (at p 1489). The approach in respect of all documents, irrespective of their significance, seemed to him to be to seek some means by which a refusal to disclose could be justified. No attempt had been made to distinguish between documents with a genuine sensitivity and run of the mill documents (at p 1490). Elsewhere, commenting on the Matrix Churchill case in the article entitled "The Acceptable and Unac cept able Use of Public Interest Immunity", supra, Sir Richard Scott reported that prosecution witness statements containing evidence about the work of the intelligence and security agencies which the prosecution wished to have in evidence were adduced but when the defendants requested documents relating to the work of the agencies that might assist their case a public interest immunity class claim was at once made (at p 444). Public interest immunity had been claimed on a class basis for a number of documents that could not possibly have been described as deserving immunity (at p 439). As the documents covered by the certificate had been made public, the appositeness of the certificate could be tested by reference to the actual documents. Documents relating to intelligence matters which the Minister claimed in the certificate would cause "unquantifiable damage" to the national interest emanating from the intelligence and security agencies or documents in which some reference, even if only trivial, to intellige nce matters was to be found, were eventually disclosed. No one had suggested that their disclosure had caused any damage at all to the work of the agencies (at pp 4441-4442).
[12] I believe that the Courts can demonstrate sufficient respect for the Minister's certificate, and where appropriate treat it as definitive, without yielding their responsibility to balance the competing public interests. That responsibility may, as in this case, necessitate a judicial scrutiny of the documents.
The nub of the opposition to judicial inspection

[13] The majority do not accept that judicial inspection could responsibly advance matters. They fear that a Judge looking at the documents might conclude that on their face they were completely innocuous from the point of view of national security contrary to the Prime Minister's certificate informing the Court that disclosure would be contrary to national security. The issue is perceived to be "hardly justiciable" (para 30). Doubt is expressed as to how the Judge would proceed and it is concluded that the only satisfactory answer must be that the customary deference paid to and trust placed in such a certificate should prevail. The Court, it is said, simply does not have the expertise or the necessary information to say that the Prime Minister's view of the matter should not prevail (paras 30 to 31).
[14] The danger of this approach, as with the acceptance of the broad plea of operational methodology or operational effectiveness, is that in effect it confers on the Security Intelligence Service such immunity as it chooses to claim free from the constraints of any form of effective accountability.
[15] While I acknowledge that there are judicial dicta which provide some comfort for the majority's view, I do not believe that it represents a realistic appraisal of what would occur if a judicial inspection of intelligence documents were in fact to take place. First, as I stressed in my previous judgment, Judges can be expected to know the limits of their own knowledge and to err on the side of caution. I venture to repeat the observation of Lord Reid in Conway v Rimmer [1968] AC 910, at 952; "[I]f the Minister's reasons are of a character which judicial experience is not competent to weigh, then the Minister's view must prevail." As I said before, I do not doubt that this realistic attitude will prevail in this country.
[16] Secondly, a Judge does not inspect the documents unaided. He or she has at hand the Minister's certificate. Presuming that the certificate addresses each document individually as contemplated in this Court's previous judgment, the Judge will necessarily examine the document in the light of the Minister's particular claim to immunity. Where, for example, the document looks innocuous on its face but might be a "crucial piece of the jigsaw" or general picture, as the majority fear, the Minister's certificate in respect of that document can presumably say so without damaging national security. For example, could not the Minister say that, while the document might appear harmless, it could when taken in conjunction with other known material result in sensitive information being deduced to an informed reader? In other words, the Judge does not look at the documents with a vacant mind; with a properly completed certificate he or she has the assistance of the Minister's specific explanation as to why s ecre cy should be retained for the document in question. As Woodhouse P said in the Fletcher Timber case (at 395); "Much will depend on the extent of the information that was made available in the Minister's certificate or any supporting affidavits...".
[17] Thirdly, how often is it actually likely that a document which appears harmless on its face will have dire ramifications for national security if disclosed? In many cases the Judge will perceive that the document would be of no assistance to the plaintiff. No harm would be done in granting immunity in such cases. Where the document would appear to be of significant relevance to the plaintiff's case, however, the Judge would naturally examine the document more closely. Although it is most unlikely that any such document would appear innocuous but have a potentially damaging impact on national security, the Judge's concern would be to ensure that the Service had not confused a legitimate claim to public interest immunity with questions relating to the potential liability or image of the Service. A realistic appraisal of the process simply does not warrant the self-deprecating alarm that in a case where the prospect of harm to the country's national security exists, a responsible Judge will inadver tent ly commit a judicial faux pas that will breach the nation's security.
[18] Finally, some grounds do not necessarily import the existence of sensitive security information. Take a ground such as that advanced in the certificate in respect of certain documents that disclosure would compromise the operational effectiveness of the Service "in relation to future liaison with the Police and other local agencies". There can be no reason to assume, unless it is expressly claimed, that such documents contain sensitive information or that balancing the Service's interest in secrecy against the public interest in the proper administration of justice would be likely to result in the inadvertent disclosure of sensitive information.
[19] It will be apparent from what I have said that I regard this reason for declining to inspect the Service's documents which are relevant to litigation before the Court as being greatly overstated. A realistic appraisal of the process does not confirm that the risk of a Judge directing disclosure of a document which could be damaging to national security is a well-grounded fear. Judges will be alert to that risk, and will discharge their judicial task of balancing the competing public interests with that risk firmly in mind. The alternative to enabling the Judges to carry out that task is a system in which the Service is not effectively accountable in respect of the claim to public interest immunity. As a consequence, the public interest in the fair and effective administration of justice is not brought into account in any real sense, and the underlying interest in maintaining public confidence in the effective judicial supervision of claims for immunity is severely damaged.

The certificate itself

[1] In its previous judgment, this Court had little hesitation in expressing its concern as to the adequacy of the original certificate and affording the Prime Minister the opportunity to prepare an amended certificate (at 25). It indicated that it would require inspection "only if the amended certificate still leaves it in doubt as to the security interests to be balanced". I now wish to examine the adequacy of the amended certificate. In my view the adequacy of the certificate and the cogency of the reasons given for claiming public interest immunity are still to be found wanting in a number of respects.
[2] First, I consider that it should not be overlooked that the entry and search of Mr Choudry's home which the Service undertook on 13 July 1996, and which is central to his claim, was illegal. This is the effect of the Court's previous judgment. Consequently, the Service has every reason to be concerned that it will be held liable for damages and that its image will be seriously damaged. Irrespective whether the Service sought to subvert such concerns when advising the Prime Minister in relation to the certificate, the context is one in which the illegality of the Service's action is already established. For this reason, the documents for which immunity is claimed require closer attention than might otherwise be the case. In the decision of the High Court of Australia in Church of Scientology Inc v Woodward (1982) 43 ALR 587, Murphy J stated (at 609) that, if a case comes before the Courts where it is claimed on what appear to be reasonable grounds that the intelligence organisation has misused its pow ers, it is to be expected that the Courts will be astute to ensure that the misuse of power is not cloaked by claims of national security. Because of the experience that secret organisations of this kind from time to time misuse their powers in relation to individuals and institutions, the Judge continued, it is essential that the judicial process be exerted, no doubt with caution, but if occasion warrants it, firmly, to keep the organisation and officers within the law.
[3] Secondly, the certificate does not adhere to the prescription set out in the previous judgment of this Court. Documents are not addressed on a document by document basis. There is no specific explanation relating to any particular document as to why that document should attract immunity. The certificate does not seek to identify in any real sense "the aspect of security in s 2 in issue". Nor does it indicate where "in the spectrum of security concerns each particular documents falls". For myself, I would not accept this significant departure from the Court's prescription without inspecting the documents.
[4] Thirdly, the ground given for claiming immunity to maintain the Service's "operational methodology" or "operational effectiveness" is too broad and open-ended to be accepted without question. I have already dealt with this point above and need not elaborate it here. Suffice to say that the practice of making, in effect, a class claim in the guise of a contents claim should not be countenanced.
[5] Fourthly, it emerged during questioning of the Solicitor-General by the Court that the Service's thinking was closely allied to a "neither confirm nor deny" approach. For example, the Service did not wish to disclose any document which would eliminate a single citizen or person from the prospect of being the target of the Service's illegal operation on 13 July 1996. It was, the Solicitor-General agreed, in the public interest to "keep everyone guessing". I do not apprehend that such an expansive objective should lead automatically to the conclusion that national security is so vital that the fair and effective administration of justice is assumed to be incapable of outweighing it.
[6] Fifthly, some 20 documents for which immunity was claimed in the original certificate on the ground that their production would prejudice the security or defence of New Zealand have now, with some editing in 18 cases, been produced. But for this Court's previous judgment these documents would, on the basis of the original certificate, never have been disclosed. Yet, it cannot conceivably be suggested that their production will jeopardise security. The claim made for immunity in respect of these documents is indicative of an approach on the part of the Service which suggests a lack of complete candour.
[7] Sixthly, in its amended certificate the Service has resiled from the claim that the production of documents would be likely to prejudice the "defence of New Zealand". This omission was deliberate. Defence interests are not now in jeopardy. Mr Harrison QC, appearing for Mr Choudry, submitted that, if the serious matter of defence interests can be so easily invoked only to be withdrawn when the issue is further pressed, it is dangerous to place total reliance and trust on the amended certificate as it stands. I agree that this unexplained retraction indicates that some caution is required.
[8] Seventhly, the amended certificate not only leaves in doubt the security interest to be balanced against the competing public interest in the fair and effective administration of justice, but it has not been adjusted to reflect government policy as evidenced in the proposed amendment to the definition of "security" contained in the New Zealand Security Intelligence Service Amendment Bill (No 2) 1999, now before the House. The breadth of the definition of "security" in the 1969 Act was commented upon in the previous judgment of this Court (at 24). A wide spectrum of interests may fall under the national security umbrella which do not relate to "national security in the strict sense". The proposed definition is less expansive in the 1999 Amendment Bill. The legislation which is applicable to the present proceeding is, of course, still the 1969 Act. But by virtue of the definition proposed in the Amendment Bill, the Government must be taken to have accepted as a matter of policy that the matters to be e xcluded from the definition of security are not a threat to national security. Yet, there is no indication in the certificate, and no confirmation was given by the Solicitor-General in his submissions to this Court, that the amended certificate is not based on a perception of national security which includes matters which the Government no longer seeks to bring within the ambit of national security.
[9] Eighthly, the original warrant dated 5 September 1995 was amended on 30 May 1996, and it is this warrant which the Service sought to rely upon to justify the entry and search of Mr Choudry's home. But the Crown's list of documents does not include a reference to the Service's application for the amendment or the affidavit in support of that application. The omission may be entirely inadvertent, but it is a critical omission and indicates that the material furnished by the Service is incomplete.
[10] Finally, I consider that the reasons advanced for declining to indicate the name or names of the person or persons who were the target or targets of the entry and search are insufficient and warrant the inspection of the relevant documents. It is of importance to Mr Choudry's claim that he know whether he was the target of the interception warrant or whether another or others were the target and he was simply a third party caught up in the surveillance operation. If Mr Choudry was the target he can seek to adduce evidence to demonstrate that any suggestion he is a security concern is ill-founded or exaggerated. If he is merely a third party his case would need to be directed along different lines. Moreover, the identification of the target or targets is likely to be highly relevant to the claim for damages at common law or for compensation to redress a breach of the New Zealand Bill of Rights Act 1990. Lord Keith observed in Burmah Oil Co Ltd v Bank of England [1980] AC 1090, at 1134, that the " natu re of the litigation and the apparent importance to it of the documents in question may in extreme cases demand production even of the most secretive communications at the highest level". The nature of this litigation and the importance to it of knowing whether or not Mr Choudry was the target of the illegal search, I would think, demand at least a judicial inspection. The question of production can then be properly considered.
[11] The certificate claims immunity for documents containing "the name or names of target(s)" of the interception warrant on the broadest of grounds (para 9). It is said that "the release of the information would be a major breach of national security". "While the material relates to a past operation", it reads, "that operation relates to an ongoing security concern". It is further averred that the editing of the balance of the material is not possible "without undermining the national interest in obtaining information as to activities prejudicial to security" (para 10).
[12] I cannot accept that these broad grounds provide an adequate justification for declining to reveal whether Mr Choudry was or was not the target of the interception warrant when that information is critical to his proceeding. If Mr Choudry is not the target, then there would appear to be no sound reason why the "target or target(s)" could not be deducted from the document. It is not suggested that any foreign government or agency is involved. As a result there can be no question that the information would prejudice security or the operational effectiveness of the Service, or the Service's access to information at an international level. Rather, although a past operation, it is said that the information as to the "target or target(s)" would prejudice "an ongoing security concern" (para 10). But, at least without inspection, it is difficult to see how documents identifying Mr Choudry as the target, or indicating that he is not the target and deleting the identity and particulars of the person or pe rson s who were the target, would adversely affect national security. Essentially, of course, the Service's objective of "keeping everyone guessing" would be impaired by the exclusion of one person. It would be known that Mr Choudry was or was not a target of the interception warrant. One would think that it could hardly be said that this policy is sufficient to automatically and without judicial inspection outweigh the public interest in the fair and effective administration of justice.

Concluding remarks
[1] If the judicial function of balancing the public interest in maintaining the secrecy of intelligence documents and the public interest in maintaining the fair and effective administration of justice is to be more than a fašade, the Courts must not be unnecessarily reluctant to undertake an inspection of the documents in issue. To be reluctant is to disregard the fundamental democratic principle that those who exercise public power are to be held accountable. Judicial inspection may be an imperfect process, but having regard to the nature of a covert security service, it is the only system available to hold the service accountable. Inspection is then more than justified when the claim to public interest immunity has the history and characteristics of the claim in this case and the certificate is inadequate in a number of respects or otherwise falls short of the prescription which this Court unhesitatingly considered appropriate in its previous judgment.
[2] I acknowledge that it can be said that the approach I endorse would mean that judicial inspection could be required in most cases involving the Security Intelligence Service. That may be so. But it will not be a burden for such cases are rare, and inspection in itself is not a threat to national security. More importantly, such a prospect is a preferable alternative to the converse; a system in which judicial inspection of intelligence documents will seldom, if ever, take place. Under this alternative, public interest immunity, an immunity to be granted only where the Court considers it appropriate, virtually becomes a matter within the control of the Service itself. Once a broad claim such as operational grounds is accepted, or the Court accepts the certificate as a matter of trust, or a certificate with the inadequacies of the certificate in question suffices, the Court has effectively abdicated its judicial function to balance the competing public interests. It has imposed on itself a self-d enyi ng ordinance.
[3] National security will not suffer if an inspection is undertaken in this case; the casualty will be the administration of justice and public confidence in the legal system to ensure that public interest immunity is constrained by law. The appeal should be dismissed and the trial Judge's decision to inspect the documents should stand.


Solicitors
Aoraki Law, Christchurch for the Appellant
Crown Law Office, Wellington for the Respondent

FURTHER MINISTERIAL CERTIFICATE


To Donald Stuart McIver
Director
New Zealand Security Intelligence Service


Introduction

1 Following on from the delivery on 9 December 1998 of the Court of Appeal's decision in this matter, I have reconsidered the claim for public interest immunity as set out in my earlier certificate dated 21 May 1998. As was the case with respect to the preparation of that certificate, I have taken advice from the Solicitor-General as to the applicable legal principles as now set out in the Court's judgment. I have personally reconsidered the documents marked "N2.22 to N2.64, N2.66 to N2.69, N2.73 to N2.95" in the list of documents filed on behalf of the Attorney-General applying those principles.
2 Subject to the following comments on omissions and editing, I remain of the opinion that documents numbered N2.22-N2.45, N2.47, N2.48-N2.52, N2.54-N2.64, N2.66-N2.69 and N2.73-N2.95 ought not to be produced except, in relation to some identified documents, with editing as to do so is likely to prejudice the security of New Zealand. In my opinion documents numbered N2.22, N2.24, N2.26, N2.27, N2.35-N2.37, N2.47, N2.51-N2.52, N2.55, N2.57-N2.60, N2.63, N2.64, and N2.69 can be produced subject to editing as described below. I therefore object to the production of the other documents as identified below on the grounds that it would be injurious to the public interest if they were produced for the reasons which follow.
3 It is my considered view that to specify the particular aspect of security involved, as defined in s2 of the New Zealand Security Intelligence Act 1969, which is affected in respect of all of the documents for which immunity is claimed would reveal information that is the very purpose of the claim to keep secret. Similarly, I believe it is not possible, without revealing such information, to provide the additional explanatory material required by the Court on a document by document basis. In the reasons which follow I have nonetheless provided a more detailed categorisation and description of the documents than appears in the list of documents filed in these proceedings on behalf of the Attorney-General.


Documents numbered N2.22 to N2.27 and N2.66, N2.67 and N2.69
1 Documents numbered N2.22 to N2.27 are from a file maintained by the New Zealand Security Intelligence Service ("the Service") relating to complaints to or investigations by the Inspector-General of Intelligence and Security. Documents numbered N2.66, N2.67 and N2.69 are from a working file maintained by the Service relating to an operation. The documents in this category include drafts of reports by the Inspector-General in relation to complaints made to him by Mr Choudry and Mr Small, the Service's comments on those drafts and the final "confidential" version of the report by the Inspector-General. (The complainants were provided with a modified version of the Inspector-General's report with respect to each of their complaints.)
2 Applying the principles in the Court of Appeal's judgment, I now consider the covering letter from the Inspector-General to the Service dated 13/05/97 attaching the draft reports but not the draft reports themselves (all under document number N2.22) can be disclosed to the plaintiff (with editing of file annotations) as can documents numbered N2.24 (with editing of the handwritten annotations on that letter), N2.26 and N2.27 (with editing of file annotations). The covering letter of 11 June 1997 from the Inspector-General to the Service under document numbered N2.69 can also be produced (with editing of file annotations).
3 The draft reports, the Director-General's [sic] comments, and the confidential version of his report all contain information as to both the substance of an operation relating to the detection of activities prejudicial to security, and as to operational methodology.
4 As the operation relates to an ongoing security concern, disclosure would have a significant effect on the obtaining of information as to activities prejudicial to security and on the operational effectiveness of the Service. At least to the extent the documents for which immunity is claimed deal with the substance of an operation, release would be a major breach of security. It would not be possible without disclosing information of the character described to disclose edited versions of these documents.


Documents numbered N2.28 to N2.64, and N2.68
5 These documents are from a working file maintained by the Service relating to an operation(s). Without a risk to security, these documents can be further subcategorised as set out below.
1. Operational material (N2.28-32, N2.38, and N2.39)
6 The documents in this category include internal memoranda of an operational nature setting out substantive information about an operation including the name or names of target(s) of an interception warrant, liaison with the Police over the conduct of an operation, and the detail as to how the obtaining of information as to activities prejudicial to security is to be undertaken with respect to a particular operation.
7 I believe release of the information would be a major breach of national security. While the material relates to a past operation, as I have indicated, that operation relates to an ongoing security concern. Editing of the balance of this material is not possible without undermining the national interest in obtaining information as to activities prejudicial to security.
2. Material relating to 13 July 1996 incident (N2.33 to N2.37, N2.40 to N2.64 and N2.68)
8 The next group of documents is a mix of documents including descriptive material as to operational decisions or descriptions of actions taken following entry on 13 July 1996. It also includes documents with respect to the internal inquiry conducted by the Service following that entry and documents with respect to liaison with local agencies, namely, the Police and the Land Transport Safety Authority, with respect to the incident. I now believe documents numbered N2.36, N2.47, N2.57-N2.60 and N2.64 (all with minor editing) can be produced, as can document numbered N2.46.
9 The information contained in the documents in this sub-category for which immunity is claimed includes substantive operational material as well as information revealing a clear indication of the methodology of the Service. In terms of the substantive operational material I have the same concerns and asses the effect on security of release as expressed with respect to 1 above. In terms of the methodology, release of this information, would I believe compromise the operational effectiveness of the Service. In addition, release of the information as to liaison with the Police would compromise the free flow of information to the Service by the Police and other local agencies and in this sense compromise the Service's operational effectiveness. On further reflection and applying the legal principles as I understand them, I believe that, with editing, documents relating to liaison with the Land Transport Safety Authority (documents numbered N2.35, N2.51, N2.52 and N2.55, and N2.63) can be produced. Simil arly , document numbered N2.37 (with editing) can be produced as can document numbered N2.53.
10 Except as indicated above, it would not be possible without disclosing information of the character described to disclose edited versions of these documents.
Documents numbered N2.73-N2.75
11 These documents are from files maintained by the Service dealing with operational matters and Privacy Act requests. They contain information about targets and also reveal operational methodology. The reasons for non-disclosure, the impact of disclosure on security and the inability [to provide an edited version] without disclosing information prejudicial to security as discussed with respect to 1 above are applicable to this category of documents.

Documents numbered N2.76-N2.95

12 The documents in this category comprise an interception warrant with amendment, the application for the warrant, and the affidavit supporting the application for the warrant. In addition, there are the associated materials directing named persons to assist with respect to the warrant.
13 While the relevant warrant has expired, the information contained in the warrant, application and affidavit, are all relevant to an ongoing security concern. Release of this information would be a major breach undermining the detection of activities going to the heart of national security.
14 Release of the associated material would reveal names of operatives, details of the Service's organisation and structure which would undermine the Service's operational effectiveness.
15 It is not possible by further editing of the warrant and amendment not to compromise these interests. Similarly, editing of the other material would not be possible without compromising the relevant security interests.
16 I direct that neither you, nor any other person, shall produce the same to anyone unless the Court of Appeal or any other court on appeal shall hold that my objection to their production has not been taken in accordance with the law or for any other sufficient reason.


DATED at Wellington this 10th day of February 1999.


[signed] J M Shipley
Rt Hon Jennifer Mary Shipley
Prime Minister of New Zealand

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