Chapter 4
Administrative decisions and review

Statutory procedures for appeal and review of administrative decisions

4.27This section of the chapter examines the procedures used by courts or specialist tribunals when hearing appeals or reviewing administrative decisions by Ministers and other public officials.

4.28The Passports Act 1992, the Terrorism Suppression Act 2002, the Immigration Act 2009 and TICSA all authorise a form of closed process by which particular decisions under those Acts may be appealed or reviewed. The Customs and Excise Act 1996 provides another form of closed process that applies in very limited circumstances where a warrant to access information about “border-crossing persons” is relevant to any proceedings.

4.29As mentioned above, the Immigration Act 2009 addressed some of the issues that emerged during Zaoui. It allows for closed proceedings, the summarising of national security information and the use of special advocates. Although these processes have not yet been tested, one subsequent piece of legislation (TICSA) has drawn on the special advocate model established by the Immigration Act 2009. Other legislation has adopted aspects of the Immigration Act 2009 procedure such as requiring the consideration of national security information in the absence of the affected person, and providing a summary of the national security information to the affected person.

4.30Below we discuss some of the key features of the existing statutory models. We note that the procedures that apply when national security information is relevant in administrative proceedings are not consistent across different Acts. While all of the regimes discussed below anticipate a closed process whereby the national security information is considered in the absence of the affected person, their lawyers and the public, a variety of different measures are available to minimise the prejudice that may arise as a result.

Issues of scope and definition

What types of decision can engage the statutory closed process?

IMMIGRATION ACT TERRORISM SUPPRESSION ACT TICSA PASSPORTS ACT CUSTOMS AND EXCISE ACT
Visas, permission to enter New Zealand, refugee and protection status, and deportation (s 33(2)). Designating an entity as a "terrorist entity" or an "associated entity" (ss 20-32).

​Applications for forfeiture of property (s 55).

The detention of goods by Customs and the taking control of property by the Official Assignee (ss 47A-51).
Any matter relating to the administration or enforcement of the Act (s 101).

​Issuing enforcement notices for serious non-compliance with a duty under the Act (s 90) and applications to the court for a compliance order (s 92).
Issuing, cancelling, revoking and suspending New Zealand travel documents on the grounds of national security (currently in cl 1-8 of the temporary provisions). Disclosing documents relevant to an application by the Chief Executive for a warrant to search and view information about border-crossing persons (s 38M).

4.31The Acts generally attempt to specify the types of proceedings that can use the closed process. The Customs and Excise Act 1996 procedures are only available in the limited circumstance where the Chief Executive resists a request for disclosure of information relating to an application to search and view information relating to “border-crossing persons”. The request might arise as a result of proceedings challenging the validity of the warrant but are not necessarily limited to such proceedings.141 Under the Passports Act 1992, the closed procedures are only available in respect of a limited set of decisions made on the grounds of national security. However, under the Terrorism Suppression Act 2002, the scope of decisions that can utilise the closed procedure are much wider.

How do the Acts define the information that can be subject to the closed process?

4.32The Passports Act 1992,142 TICSA,143 and Terrorism Suppression Act 2002144 refer to the information that can be subject to the closed procedure as “classified security information”. The Immigration Act 2009 uses the slightly different term “classified information”.145 The Customs and Excise Act 1996 doesn’t refer to the information by a specific term. Despite these minor differences, all five Acts adopt the same approach to defining the information that needs to be protected under the closed process.

4.33Under each Act, information must satisfy two elements in order to fall within the category of information that can be subject to the closed process.

4.34The first element is that the information must be of a particular kind, specifically it:

(a) might lead to the identification or provide details of, the source of the information, the nature, content or scope of the information or the nature or type of the assistance or operational methods available to the relevant agency; or
(b) is about particular operations that have been, are being or are proposed to be undertaken in pursuance of any of the functions of the relevant agency; or
(c) has been provided to the relevant New Zealand agency by the government of another country or by a government agency of another country or by an international organisation and is information that cannot be disclosed by the relevant New Zealand agency because the government or agency or organisation by which the information has been provided will not consent to the disclosure.

4.35The second element is that the information, if disclosed, would be likely to;

(a) prejudice the security or defence of New Zealand or the international relations of New Zealand; or
(b) prejudice the entrusting of information to New Zealand on a basis of confidence by the government of another country or any agency of such a government, or by any international organisation; or
(c) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or
(d) endanger the safety of any person.

4.36The factors listed under the second element are also the conclusive reasons for withholding information in section 6 of the Official Information Act 1992 with the notable exception of serious damage to the economy of New Zealand. In Chapter 6 we consider further the interests that might justify using a closed process.

Decision making powersTop

When can the closed process be used?

IMMIGRATION ACT TERRORISM SUPPRESSION ACT TICSA PASSPORTS ACT CUSTOMS AND EXCISE ACT
If "classified information" is involved, the Tribunal or courts must use a closed process (ss 242-244, 252-256).   If the Attorney–General requests and the court is satisfied that it is desirable to do so for the protection of the "classified security information", the court must hear the case in the absence of the affected entity, their lawyers and the public (s 38(3)-(b)). If the Attorney-General requests and the court is satisfied that it is desirable to do so for the protection of the "classified security information", the court must hear the case in the absence of the non-Crown party, their lawyers, the public and journalists (s 111(2)(b)).

The court also has a discretion to exclude any person from the whole or part of the proceedings, including the non-Crown party, their lawyer and the public (s 104(1)(c)).
If the Attorney–General requests and the court is satisfied that it is desirable to do so for the protection of the "classified security information", the court must hear the case in the absence of the affected person, their lawyers and the public (s 29AB(1)). The closed process must be used in respect of every application for a warrant to search data on border-crossing persons (s 38M).

4.37Under the Immigration Act 2009, the use of the closed process for appeals or review appears to be mandatory upon confirmation that the information meets the definition of “classified information” in the Act, although the Tribunal or court may decide that the information is not relevant or does not meet the definition of “classified information”. Under the Terrorism Suppression Act 2002, TICSA and the Passports Act 1992, the courts have some discretion when deciding if it is desirable for the purposes of protecting the information to exclude non-Crown parties from the hearing.

Who determines whether information meets the definition required to engage the closed process?

IMMIGRATION ACT TERRORISM SUPPRESSION ACT TICSA PASSPORTS ACT CUSTOMS AND EXCISE ACT
The Tribunal or court determines if the information meets the definition of "classified information" and whether it is relevant ss 243, 254). The head of the agency that holds the information certifies that the information meets the definition, but the court determines relevance (s 32). The head of the agency that holds the information certifies that the information meets the definition, but the court determines relevance (s 102). The head of the agency that holds the information certifies that the information meets the definition, but the court determines relevance (s 29AA). The Act does not specify.

4.38Under the Passports Act 1992, the Terrorism Suppression Act 2002 and TICSA, the head of the agency that holds the information is empowered to certify that the information is of a certain kind and would be likely to have a particular prejudice if disclosed. Under the Immigration Act 2009 the head of the relevant agency certifies the classified information meets the definition, but the Tribunal or court must also consider if the classified information meets the definition.

4.39Under all of the procedures, the court decides if the information is relevant to the matters under consideration. If the court decides that the information is not relevant to the particular matter under consideration, closed processes will not be needed.

4.40The Customs and Excise Act 1996 does not specify when the closed processes will be engaged. One plausible interpretation is that the court will determine these matters following the receipt of submissions from the Chief Executive of the Customs Service.

4.41Under the procedures above the decision that the information would prejudice an important national interest if disclosed can have wide-reaching consequences for the conduct of the case. This is particularly so where the existence of national security information might in itself be sufficient to trigger a closed process.

4.42It is therefore arguable that legislation should clarify the extent to which a person affected by a decision that relevant information is classified can challenge that decision (if at all) and how any dispute as to the validity of classification is to be resolved.

Does the court have the power to determine what information is to be released in the hearing?

IMMIGRATION ACT TERRORISM SUPPRESSION ACT TICSA PASSPORTS ACT CUSTOMS AND EXCISE ACT
The court has no power to direct the disclosure of "classified information".

The court must keep it confidential and may only disclose it with the consent of the agency head (s 259(3)).
The court has no power to direct the disclosure of "classified security information". The court has no power to direct the disclosure of "classified security information".

​The court must keep it confidential and may only disclose it with the consent of the agency head (s 103(3)).
The court has no power to direct the disclosure of "classified security information". The judge must order production of the documents sought unless they are satisfied that the information falls within the definition in s 38N.

4.43The Crown has the final say as to whether or not national security information will be disclosed. While not explicit in the Customs and Excise Act 1996, the Crown would still be entitled to rely on a claim for public interest immunity.

Which body determines the outcome of the closed proceedings?

IMMIGRATION ACT TERRORISM SUPPRESSION ACT TICSA PASSPORTS ACT CUSTOMS AND EXCISE ACT
The Immigration and Protection Tribunal hears first appeals (Part 7). Subsequent appeals and judicial review applications are heard by the High Court (ss 245, 247). The High Court determines judicial review applications or other proceedings relating to a designation (s 33) and matters relating to seizure and forfeiture (ss 54, 55). The High Court determines applications for compliance orders (s 92) and can impose pecuniary penalties for serious non-compliance with a duty under the Act. The High Court determines appeals and applications for judicial review of decisions under the Act (s 28 and cl 8 of temporary provisions). A District Court Judge must determine an application to access the relevant information (ss 38M(4), (9), (10)).

4.44In each of the procedures discussed above an independent adjudicator makes the final decision as to the substantive matter under consideration. However, this does not mean that the court has the ability to direct the disclosure of information that has been certified by the head of agency as being “classified security information” or “classified information”.

Features of the closed processTop

For information that is not released, is a summary used, and if so, how?

IMMIGRATION ACT TERRORISM SUPPRESSION ACT TICSA PASSPORTS ACT CUSTOMS AND EXCISE ACT
The Chief Executive of the agency that holds the information must develop and provide a summary of the allegations arising from the "classified information" and provide it to the Tribunal or court for approval (ss 242, 256). The Attorney-General produces a summary of the "classified security information" (s 38(4)). The Attorney-General produces a summary of the "classified security information" (s 111). The Attorney-General produces a summary of the "classified security information" (s 29AB(2)). The creation of a summary is not provided for in the legislation.
The Tribunal or court must approve or modify the summary. The court must approve the summary unless the summary itself would disclose the information. The court may approve the summary unless the summary itself would disclose the information. The court must approve the summary unless the summary itself would disclose the information.  
Once approved, the summary must be given to the other party and the special advocate. Once approved the summary must be given to the other party. Once approved the summary must be given to the other party. Once approved the summary must be given to the other party.  

4.45The Acts differ with respect to who produces the summary and how much control the court or tribunal has over its content. Special advocates are not permitted to be involved in the production of the summary under the Immigration Act 2009 procedure.146 There also appears to be no power under the Passports Act 1992, Terrorism Suppression Act 2002 and TICSA for the court to refuse to approve a summary on the grounds it provides too little information, although TICSA would appear to grant the court a greater discretion. In this regard, the provisions of those three Acts are nearly identical save for the fact that TICSA provides that the court may approve the summary, while the Passports Act 1992 and the Terrorism Suppression Act provide that the court must approve the summary. This is a legally significant difference as the use of “may” could potentially be interpreted to give the court the power to reject a summary on the grounds it does not contain enough information.

Are special advocates provided for, and what is their role?

IMMIGRATION ACT TERRORISM SUPPRESSION ACT TICSA PASSPORTS ACT CUSTOMS AND EXCISE ACT
Appointed in each case by the person affected by the decision (s 265).


The court or Tribunal may also appoint a special advocate to assist the court (s 269) and a special advisor to advise the court (s 270).
Not provided for in the legislation. Appointed by the court if it is satisfied that it is necessary to properly prepare and commence proceedings and to ensure a fair trial takes place (s 105). Not provided for in the legislation. Not provided for in the legislation.
Can commence proceedings, make oral and written submissions and cross-examine witnesses (s 263).   Can commence proceedings, examine and cross-examine witnesses, make oral and written submissions and assist in the settlement of the proceedings (s 107).    
Once provided with the "classified information", the special advocate can only communicate with the person affected by the decision and their lawyer via the Tribunal or court (s 267).   Once provided with "classified security information", the special advocate can only communicate with the non-Crown party on terms that the court orders (s 109(3)).    

4.46Only the Immigration Act 2009 and TICSA provide express authority for the appointment and use of special advocates. These two regimes adopt different approaches with respect to the appointment and roles of special advocates.

4.47In its Select Committee Report on the Terrorism Suppression Amendment Act 2007, the Foreign Affairs, Defence and Trade Committee noted problems “related to procedural fairness and the human rights of designated persons, and whether these rights should be overridden to protect New Zealand’s national security”. The Committee agreed that “processes involving special advocates and security-cleared counsel would add additional elements of protection” but recommended that the issue be given further consideration following the enactment of amendments to the Immigration Act 2009 relating to the use of classified information in decisions under that Act.

Is it possible for information to be taken into account without that information being made available to the person affected?

IMMIGRATION ACT TERRORISM SUPPRESSION ACT TICSA PASSPORTS ACT CUSTOMS AND EXCISE ACT
No. The Tribunal or court may only rely on "classified information" to the extent that the allegation arising from the "classified information" can be summarised without disclosing it (ss 242(3), 256(3)). Yes. A court must determine the proceedings on the basis of all information available to it, regardless of whether or not that information has been provided to the other parties (s 38(2)). Yes. The court must determine the proceedings on the basis of all information available to it, regardless of whether or not that information has been provided to the other parties (s 111(1)). Yes. The court must determine the proceedings on the basis of all information available to it, regardless of whether or not that information has been provided to the other parties (s 29AB(3)(b)). Not explicitly addressed.

4.48The Immigration Act 2009 procedure is the only one to expressly state that information not disclosed to the person affected cannot be used by the court or Tribunal. The Passports Act 1992, TICSA and the Terrorism Suppression Act 2002 require the court to consider all information available, including information that has not been disclosed. The Customs and Excise Act 1996 does not explicitly address the matter.

Issues arising in existing statutory closed procedures for appeals or reviewsTop

4.49The tables above illustrate the variance in closed processes adopted in different areas. Below, we discuss the key issues that arise from these procedures.

Information can be used but not disclosed to the person affected

4.50Procedures under the Passports Act 1992, the Terrorism Suppression Act 2002, and TICSA require the court to determine the case based on all information available to it, regardless of whether or not that information has been disclosed to the person affected. The Customs and Excise Act 1996 does not address this issue.

4.51This feature of the procedures has obvious implications for the principles of natural justice and for open justice. Special advocates, which are discussed in the next section, can mitigate some but not all of the difficulties that arise where information is not disclosed to the person affected but is still considered by the court. However, the Passport Act 1992 and the Terrorism Suppression Act 2002 make no express provision for the appointment of special advocates. Without a special advocate, evidence is before the court that has not been seen by any person representing the interests of the person affected. The court would not have the benefit of informed submissions from counsel for the affected party.

4.52We are concerned that the provisions in the Terrorism Suppression Act 2002 may not adequately protect the rights of the affected party. The procedure provided for has also been the subject of comment by the United Nations Human Rights Committee (UNHRC). In its 2010 Concluding Observations on New Zealand’s compliance with the International Covenant on Civil and Political Rights (ICCPR) the UNHRC expressed concern “at the designation procedures of groups or individuals as terrorist entities and at the lack of a provision in the (Terrorism Suppression (Amendment)) Act to challenge these designations, which are incompatible with article 14”.147 Notably, the UNHRC identified and noted concern about the introduction of law that permitted the courts “to receive or hear classified security information against groups or individuals designated as terrorist entities in their absence”.148

4.53In its 2015 draft response on the next round of reporting to the UNHRC, the Ministry of Justice gave the assurance that “although the TSA now provides for closed proceedings involving classified security information no such proceedings have taken place”. Instead, “New Zealand’s practice is to prepare all statements of case for designation as a terrorist entity using open-source or unclassified information”.149

4.54This answer raises concerns. As mentioned above, a properly informed decision may sometimes require that national security information be taken into account. Simply relying on open-source information would potentially involve ignoring relevant information and only defers the problem until a case arises where open-source information is insufficient but there is a clear national security impetus for a designation. An additional concern is that this approach might inadvertently obscure the real reason for the decision from the person affected and the public, resulting in a further infringement of the principles of natural justice and open justice.

4.55The Immigration Act 2009 adopts a different approach to the other models. Information that is not disclosed or summarised cannot be considered by the court or Tribunal, and people affected also have the benefit of special advocates to represent their interests. In this respect, the approach taken in the Immigration Act 2009 appears to offer the greatest protection for fundamental rights amongst the statutory models current in force.

4.56We therefore seek submissions on whether or not a standard process should apply across all legislation that authorises a form of closed proceedings.

Ability of special advocates to provide adequate representation

4.57While TICSA and the Immigration Act 2009 make express provision for the use of special advocates, statutory regimes for passports, customs and terrorism suppression are silent on their appointment or any potential functions or obligations.

4.58A fundamental impediment to the provision of effective representation, which is at the heart of much of the criticism of closed procedures generally, is the express prohibition on special advocates discussing the national security information with their clients. When combined with the other restrictions on communication discussed below, the special advocate must attempt to represent a person without being able to take instructions on information that might be central to the case against them.

4.59Both TICSA and the Immigration Act 2009 place restrictions on the special advocates’ ability to take instructions from their client. Under TICSA, the special advocate may only communicate directly with their client with the approval of the court. Under the Immigration Act 2009, communication can only be made via the court. Such restrictions obviously have implications both for administrative efficiency and for the ability of the special advocate to seek and receive instructions from their client. However, we also acknowledge that these restrictions play a protective role with respect to special advocates. They establish clear boundaries around how the special advocate might interact with their client. It avoids placing the special advocate in a position where they must make on-the-spot judgements as to a risk to national security when speaking to their client. It also insulates special advocates from any allegation that they might have inadvertently disclosed information that might pose a threat to national security.

Summaries of national security information

4.60The summarising of the national security information to be provided to the excluded party is a key means by which the potential unfairness of a closed process can be mitigated. Two key issues arise from the creation of a summary:

(a) Who has input into the production of the summary?
(b) Who ultimately approves it?

4.61In the procedures discussed above, the courts have a varied degree of supervision over the summary. In the Passports Act 1992 and the Terrorism Suppression Act 2002, the only apparent ground for refusing to approve the summary is that the summary itself would disclose classified security information. TICSA appears to grant the court a little more freedom to refuse to approve the summary, but the extent of that freedom is unclear.

4.62The Immigration Act 2009 procedure is notably different. In proceedings before the courts and the Tribunal that involve classified information, the Tribunal or court is entitled to modify, not merely approve, the summary produced by the Chief Executive without the apparent restrictions imposed in the Passports Act 1992 and the Terrorism Suppression Act 2002.

4.63While it is possible that the courts might take an expansive view of their supervisory role (and it is of course hoped that the Crown would ensure the maximum amount of information is disclosed to the other party), we consider that, given the importance of the contents of the summary, this supervisory role should be more clearly set out in statute.

4.64In addition, there should ideally be an opportunity for someone (most likely a special advocate) to challenge the content of the summary on behalf of the affected party. In this regard, we believe the Immigration Act 2009 procedure is deficient, as special advocates are expressly excluded from the process of producing the summary.150 By contrast, no such prohibition appears to exist in relation to TICSA proceedings.

Gaps in statutory processes

4.65The Acts above differ in the extent to which some key elements of a closed process, such as the appointment of special advocates, is expressly authorised.

4.66In order to ensure a fair hearing, the courts might therefore be required to rely on their inherent powers151 to supplement the statutory procedures, whether by appointing a special advocate where no statutory authority to do so exists or devising some other procedure. However, as discussed in Chapter 5 in the context of general civil proceedings, rather than requiring the courts to rely on their inherent powers on a case-by-case basis, considerable benefit might be gained from establishing a generic system that can be used by different courts and tribunals as needed.

4.67In the absence of any proceedings under the legislation discussed above, it is unclear how the courts will apply the individual statutory schemes. The Acts discussed above152 make provision for the Chief Justice and the Attorney-General to agree any general practices and procedures that may be necessary to implement the special procedures in those Acts to protect the national security information.

141 Customs and Excise Act 1996, s 38M.
142 Passports Act 1992, s 29AA.
143 Telecommunications (Interception Capability and Security) Act 2013, s 102.
144 Terrorism Suppression Act 2002, s 32.
145 Immigration Act 2009, s 7.
146Immigration Act, s 242(7).
147Concluding observations of the Human Rights Committee: Consideration of reports submitted by States parties under article 40 of the Covenant CCPR/C/NZL/CO/5 (2010) at [13].
148At [13].
149Ministry of Justice, above n 48, at [59].
150 Immigration Act, s 242(7).
151Courts in New Zealand have powers that are ancillary to the court’s jurisdiction. These powers can be used to regulate proceedings before the court and ensure that it can give effect to its jurisdiction, see Zaoui v Attorney-General, above n 131 at [35].
152With the exception of the Customs and Excise Act 1996.