Glimpse into court’s secret passport case
A woman at the centre of a closeddoor case about her passport being cancelled on anti-terrorism grounds, doesn’t want the allegations against her to become public.
Even she isn’t allowed to know the classified security information used to justify the cancellation of her passport.
The woman, who is not named in publicly available court documents, recently asked a Wellington High Court judge to prevent publication of the type of allegations made against her.
‘‘The request is supported by an affidavit completed by [the woman] which describes the level of interest that she anticipates is likely to be generated by a judgment in the proceedings, on the basis of her experience thus far,’’ Justice Robert Dobson said.
The judge is still deciding how to deal with the case, and has ruled that the woman can only know the ‘‘gist’’ of the classified security information the minister of Internal Affairs relied on as grounds to cancel her passport.
The judge said that until at least the full hearing the court’s sittings would be closed, and any judgments made public, in the meantime, would deal with matters in ‘‘generic terms’’.
The woman would have a chance to ask for suppression when the ultimate decision was made.
‘‘The balancing of the public interest in open justice against the legitimate personal interests of a litigant likely to be substantially harmed by publication of matters traversed in the proceeding should only be undertaken in light of the outcome,’’ the judge said.
The case has broken new ground to find a way to deal with the woman’s challenge to her New Zealand passport’s cancellation in May 2016.
She was living in Melbourne when her case first came before the court in April 2017. An early decision referred to her passport being cancelled on the grounds that it would impede her ability to facilitate actions of the type that made her a danger to the security of a country other than New Zealand.
The judge previously said he won’t second-guess the information’s security classification, but he would look at whether taking into account the information, in the absence of the woman, was desirable to protect the information.
Although the woman can’t know the detail of the classified security information, the court has added to the process set out in the law, and appointed a ‘‘special advocate’’ to raise issues about the information and process.
In the most recent court decision, that lawyer, Ben Keith, had argued that in some circumstances the court could review the claim for classified security information status, especially if the information also contained elements that strengthened the woman’s case, or documents could be edited to remove classified information. The judge said he did not need to decide the issue, but he left open the possibility.
The scope of information relevant to the case has potentially been widened with the judge putting in place a process, informal for now, where the Crown lets Keith see other information not part of the evidence so far, that was reviewed before the recommendation was made to cancel the woman’s passport.
One of the court’s roles is to decide an ‘‘unclassified’’ summary to be given to the woman. If the Crown did not agree with the judge’s decision about the summary, it could withdraw classified information but that meant it would no longer be part of its justification for cancelling her passport.