Last week, the apology and compensation extended to Nicky Hager was justly celebrated as a victory for investigative journalism – and as a denunciation of a Police raid that, as Hager said in one interview, had almost derailed his subsequent book Hit & Run*.
Fine. All good. Yet with a minimum of publicity, a High Court ruling hit the tarmac last week concerning the use of security information that – if left unchallenged – could well cripple the recently announced government investigation into the Hit & Run allegations. In effect, that inquiry – or any individual in future accused of being a security risk – will have almost no ability to know, let alone effectively challenge, the evidence that the security services claim to be relevant to issues of national security.
How did this judgment come about? A few months ago, you may recall the High Court issued a “Kafkaesque” blanket suppression order prohibiting the media from reporting even the point at issue in a recent case, let alone the actual content of the proceedings. Well, the High Court’s decision on that case has now been published; and yes, as speculated at the time, the blanket suppression order was to do with a passport application and the security information deemed relevant to it. The court decision in A v Minister of Internal Affairs is now available here.
In effect, this decision almost takes the role of the courts vis a vis security information back to the dark days of the majority verdict in the Choudry case in 1999. It as if the Ahmed Zaoui case never happened. In effect, this judgment endorses the view that the courts (and the public, and the media) are to genuflect before the needs and expertise of the security services, without much in the way of substantive balancing of the claim of national security against the rights of the individual to natural justice, let alone an attempt to re-assure public confidence that the alleged security interests have been fairly and accurately presented, and properly evaluated. It is hard to do so when the scales of justice have been weighted heavily on only one side of the equation.
Among other things, the High Court decision in A v Minister of Internal Affairs absolves officialdom from any compulsion to act in good faith and to disclose any extenuating information they hold that might contradict the case being presented. Sure, such withholdings can, if subsequently discovered (somehow) can be brought up later, on appeal. The ruling begins to address this issue at para 44:
I do not consider it either necessary or appropriate to impose a duty of utmost good faith owed to the affected person by the officers responsible for compiling a report and recommendation for the Minister. The focus of the responsibilities of such officers is to carry out their
assessments competently, taking into account all relevant information that can reasonably be obtained. That requires a balanced conclusion that takes into account any information inconsistent with the outcome proposed. Justiciable errors may be found if the officers fail to competently and reasonably assess all information. Such criticisms can be argued to support an appeal or judicial review, without the lapse in standard constituting a breach of a duty of utmost good faith.
So… sue the Crown afterwards if the authorities get it wrong, but hey, don’t impose any obligation at the outset for them to have acted in good faith. It only gets worse from there. Should the security services be obliged to disclose if the information on which they’re relying (a) has been obtained from the affected person or (b) is already in the public domain? No and no, the High Court says. Apparently, at all costs – and regardless of the impact on the natural justice rights of the person affected – we must preserve the operational secrets of the security services. The Court itself raised the example of someone who has (allegedly) told a terrorist organisation that they know how to make a bomb.
Mr Martin [for the Crown] argued strongly… that disclosing the security agency’s awareness of such a statement may, depending on circumstances, reveal to the affected person the surveillance capacity of the agency or others sharing information with it. It may reveal monitoring of conversations or communications in which the statement is alleged to have been made, or the agency’s access to reports from someone hearing or reading the communication. That knowledge might alert the person to the nature and range of resources available to the security agency. … It follows that a blanket rule rejecting the need to protect CSI where the information is derived from the person in question is not appropriate.
Ditto if the security services seek to claim secrecy status in court for something that’s already been screened on television, or contained in some other form of readily available public information:
There is likely to be a range of circumstances in which the attribution of relevance to publicly available information may afford insight for the affected person into other information which has been covertly acquired, and for which CSI status is properly claimed. For instance, covertly acquired information about a person may include their use of a code name for a terrorist organisation and, before completion of discovery in proceedings brought by that person, a television documentary refers to the use by the terrorist organisation of that code name. The fact that the connection between the organisation and the code name was public knowledge may not prevent a security agency claiming CSI status for its knowledge of the code name, where attributing relevance to the code name could alert the person to the agency’s awareness that he or she used the code name.
So far, so depressing. Here’s an issue relevant to the Hit & Run inquiry. Given that the crucial video footage of the village raid is owned and held by the United States military, should, say, the Defence Forces be required to at least ask the Pentagon to release the footage? No, not according to this High Court judgment:
Mr. Keith proposed that an agency claiming CSI status for information obtained from other sources should be obliged to explicitly ask whether those sources would consent to its release. Certainly, if the circumstances of acquisition of information give rise to any reasonable prospect that the source may consent, then an expectation arises that the request for such consent would be made before the agency asserted CSI status to protect that source. However, I am not satisfied that a uniform obligation of that breadth is warranted.
Why on earth not? Well, that’s because our security agencies operate within a series of ‘you scratch my back/I’ll scratch yours’ relationships with fellow intelligence agencies overseas, and those links must be protected at all costs:
For example, security agencies will have standing arrangements with at least some other organisations with which they share confidential information. Those arrangements likely include obligations on each recipient to take all practicable steps to prevent dissemination, and likely have exceptions to those obligations for confidential disclosures to government ministers. Requiring the security agency to make requests for consent where such standing arrangements exist could not be warranted. In addition, there may be circumstances in which the security agency wishes to assert secrecy over the fact that it has obtained information from other sources, irrespective of whether the source would permit disclosure.
Armed with this kind of reasoning, the NZ Defence Force will be free to walk into the Hit& Run inquiry and invoke national security with virtual impunity. All along there has been the prospect that this inquiry would culminate in a farce, in which a blanket of secrecy is dropped over the relevant information. (Public confidence in the process has not been helped by the fact that the retired judge who will co-head the Hit & Run inquiry was formerly the Crown prosecutor in all of the major Ahmed Zaoui cases.) Therefore, in order to balance the suppression of security evidence and footage, surely adequate funding must be provided by the New Zealand government for the villagers at the centre of the SAS raid to be flown to New Zealand, to testify about their experience first hand. Surely, this inquiry shouldn’t be just an exercise that reviews the paper trail, like Sir Geoffrey Palmer’s UN investigation of the fate of the Gaza flotilla. This inquiry will need to solicit first hand testimony, in order to be remotely credible.
Finally starting at para 73, the High Court assesses the question of how comprehensive the summary of secret information must be that the Crown has to provide to the affected person. “Mr Keith submitted that provision of sufficient information to rebut, and not just to deny the Crown case had to be the bare minimum of any summary the Court could approve.” Not if this lead to disclosure of security secrets, the Crown predictably counter-argued. In the end, the High Court ruled that it – and not the Crown – would decide the extent of fair disclosure in each case, and if the Crown disagreed about the extent of the risk to national security that this might entail, the Crown would always retain the option of withdrawing its reliance on the secret information at issue. Good.
Lest we forget: the security services got the facts of the Zaoui case completely wrong, and doggedly tried to hide behind national security defences to bury their mistakes for four long years, right up to the point when their case finally collapsed, due to the presentation of relevant facts that the Crown had ignored, suppressed and/or actively downplayed. All along, a far more credible and compelling counter-narrative had existed about Zaoui. That particular case should have set a convincing precedent as to why strong safeguards on good faith and disclosure and testing by the court are essential, and why the court needs to pay heed to the special advocate appointed to assist the court in (a) evaluating the relevant security evidence, and (b) interrogating it in a robust manner.
In this latest ruling however, the High Court chose, on point after point, to sweep to one side the arguments presented by the special advocate. At the outset, it was not surprising that the High Court discounted any claim by the affected person to Bill of Rights protections. As it says (at para 40) Parliament has already made it crystal clear that the need to protect confidential information should prevail over any BORA-based right of the affected person “to the usual standards of fair procedure”.
OK. One can grudgingly concede that point, given how constitutionally weak our Bill of Rights protections are, in reality. But… as I’ve mentioned above, the High Court went on to reject the special advocate’s calls that the security services must (a) conduct the disclosure process in good faith (b) reveal and weigh any extenuating evidence (c) be required to request those holding relevant confidential evidence to consent to its public release and (c) indicate to the court and to the affected person when and where they are claiming secrecy for evidence actually taken from the defendant, or that is already in the public domain.
All of this is supremely ironic, given that Ben Keith, the special advocate whose advice was so blithely ignored in these proceedings, also served (from 2014 to 2017) as the Deputy Inspector- General of the Security Services. Meaning: the guy knows the territory, and (as a former deputy I-G) he can be presumed to know what constitutes a process that fairly balances the competing interests in play, such that justice is served to the highest standard possible.
Unfortunately though, as things now stand, security agencies (and related bodies such as the NZDF) are being empowered to virtually ride roughshod over the rights of those whom they accuse of posing a security risk. It will be up to Keith (and his client) to decide whether they will appeal this decision. If they don’t, the Hit & Run investigation, which always has been at risk of turning into an expensive whitewash, will be almost guaranteed to have that outcome.
* Hit & Run was of course co-written by Nicky Hager and Jon Stevenson. [back]
SOPHIE steps up
Some of the most innovative electronic pop music of the last five years has been issued under the brand name SOPHIE. Sophie Xeon was born in Scotland as Samuel Long, but she now resides in California. In 2014, she broke through as a multi-threat performer, writer and music producer with tracks like “Bipp” “Hard” and the inescapable earworm “Lemonade”…Formerly a reclusive figure, she has worked with similarly inventive cultural technicians like Kyary Pamyu Pamyu, Charli XCX and Rihanna. Routinely, her bright sound palette has been compared to K-pop and J-Pop, although she prefers to point to old school disco era innovators like Frankie Knuckles and Larry Levan as being her key influences…
A few weeks ago, SOPHIE released her first original album, although there was a compilation available previously. Strikingly, there’s so much space in these productions, with the explosive, jackhammer rhythms being offset by the coolly ironic vocals.. Here are what IMO, are the two key tracks from the new album…