A secret court where even the accused cannot be present

Secret court case: 'Anathema to...fairness'

Radio NZ,

2 February, 2018

Opinion - A High Court hearing was this week shut off to everyone, including media - something even the judge calls 'anathema to the fundamental concepts of fairness'.

Photo: RNZ / Rebekah Parsons-King

Something quite strange is happening at the High Court in Wellington this week. Journalists doing their regular rounds of that place's pathos, bathos, high drama and human frailty came across a closed courtroom, with nothing to say what was going on inside its doors, heightened security outside of them and strange "men in dark suits" lurking in the nearby halls.

Upon asking what was up - journalists are pesky like that - they were told they weren't allowed to know before quickly being ushered away by court security officers.

Which, of course, simply makes everyone that much more curious about what on earth could be going on. Because completely closing a courtroom to everyone, including the media, is pretty much unheard of in New Zealand.

Sometimes a judge clears the public from the courtroom for part of a hearing, for instance where a complainant gives evidence in cases of a sexual nature. But even in such cases, members of the media have a right to stay and listen, although they may not then be allowed to report publicly on the details.

There's a pretty obvious reason for this approach. Open justice: trials that are able to be viewed by the public or their media representatives - are the best way of ensuring that justice is truly done. It not only makes sure the court processes do, in fact, work properly but reassures everyone that this is happening.

So, a trial where no public or media are allowed in at all? That's a big deal. What could it involve?

The suspicions of at least some of us were confirmed when Justice Venning, the Chief High Court Judge, released a statement confirming the subject of the case. It involves an appeal by a Melbourne-based New Zealand woman against a decision to cancel her passport on the grounds that she represents a national security threat to some other, unspecified country. By removing her passport, the New Zealand government says it can neutralise that threat by stopping her from being able to travel there.

How do we know this? Because her case already has been before the High Court last year, when she sought to challenge the government's claim that not only did her appeal have to be held in secret, but that neither she nor her lawyer were allowed to know the reasons why her passport had been cancelled.

Those reasons, said the government, constituted "classified security information". And under the Passports Act 2002, it's not just the public and press who can't be in the courtroom to hear the content of such information. Neither can the person whose passport is cancelled, nor that person's lawyer.

Justice Dobson, who heard that earlier case and is hearing the current one as well, was not entirely happy about this situation. As he noted in a judgment that somewhat reluctantly concluded that the legislation had to be read in this manner:

"The whole of our common law tradition, as bolstered by the rights and protections recognised by New Zealand Bill of Rights Act 1990, render the procedure under [the Passports Act] an anathema to the fundamental concepts of fairness. However, the reality is that Parliament has recognised the justification for the use of that procedure in defined circumstances."

So, here's what is happening in the High Court in Wellington. A woman is asking to get her passport back after the government took it off her. She is doing so without knowing the evidence the government has for deciding she represents a security risk, without being able to be in the court to watch the case being argued, and without being able to have her own lawyer present to argue for her (although some unnamed "advocates" have been appointed to "assist with issues that have to be dealt with" in her absence).

And none of us can go in and watch the case. Nor can the media go in to watch it on our behalf.

It's just a good thing we live in a country where we can be sure the government gets things right, the security agencies never overreact to perceived threats and the courts always follow proper procedures. Because if we didn't, well ... you'd almost think there was a reason to be worried.

This piece originally appeared on and has been published with permission from The Spinoff

* Andrew Geddis is a professor of law at the University of Otago