"This judgment explains why members of a committee, established by legislation to review decisions made by a government department, may not use fictitious names and signatures when issuing their decisions.
Benefit Review Committees (BRCs) are responsible for reviewing decisions made on behalf of the Chief Executive of the Ministry of Social Development (MSD) concerning an applicant's entitlement to benefits under the Social Security Act 1964.
[The Plaintiff] applied to have the BRCs review seven decisions of the MSD.
Decisions from the seven differently constituted BRCs were duly delivered.
It transpired, however, that in six of the seven decisions of the BRCs, the names and signatures were fictitious.
This revelation occurred when [The Plaintiff] appealed the BRCs' decisions to the Social Security Appeal Appeal Authority (SSAA).
Prior to the scheduled hearing of the appeals, Mr van Ooyen, a senior manager at the MSD, filed a memorandum with the SSAA headed "In Confidence" saying that the Ministry had decided that the true identities of the members of the BRCs should be hidden in order to protect Committee members from the risk of being harassed and threatened.
Mr van Ooyen's memorandum was not served on [The Plaintiff], who was not represented by a lawyer.
The Authority responded with a minute conveying its concerns that the Committees had issued decisions using fictitious names and signatures and that the Ministry had attempted to communicate with the SSAA "in confidence" and without involving [The Plaintiff].
Upon being notified of the SSAAs concerns, the MSD applied to the SSAA to withhold from [The Plaintiff] the true identities of the members of the six BRCs who had used fictitious names and signatures.
In a decision dated 15 September 2017, the SSAA dismissed the Ministry's application, saying that there was "an absolute prohibition" on statutory decision makers using fictitious names and signatures unless there was an express legislative basis for them to do so.
The SSAA also said the MSD's justification for using fictitious names and signatures lacked substance when weighed against the right to open justice, and that permitting members of the BRCs to continue the practise would "seriously compromise" the SSAA.
This was the second time the SSAA had ruled that the names of BRC members must be disclosed to an applicant.
MSD appealed the decision in the High Court under section 12Q of the Social Security Act.
At paragraph 42 of the judgment of Collins J the issue of recusal arises. Other recent cases involving the question of recusal include Taueki and Mihaka.
At paragraph 43 Collins J notes "The question that then arises is how [The Plaintiff] can make an informed decision about challenging the appointment of members of a BRC, for example, for bias, if she is prevented from knowing their true identities. The answer is clear. She cannot. To conclude otherwise would produce an outcome that is the antithesis of natural justice."
Paragraph 44 upholds the principle of 'equality of arms', which means that the Plaintiff, and not just the Ministry, should have the opportunity to challenge the appointment of BRC members.
Paragraphs 45 addresses the need for legislative authority thus: "The debate among constitutional scholars about the sources of government power has never been satisfactorily resolved. In the present case, it is accepted that the prerpgative powers are not engaged. Instead, there are in theory, three potential sources of authority for the Committees to use fictitious names and signatures namely, implied legislative authority, the "reasonably incidental doctrine" and a concept referred to as the "third source of government powers". Before examining thse possibilities, I shall first set the scene by explaining the constitutional principles that underpin the need for there to be a source of power for government actions."
After correctly concluding that the Ministry had no implied statutory authority, Collins J turned to the question of "reasonably incidental doctrine", which enables public bodies to do things that are reasonably incidental to the discharge of their statutory functions such as purchasing paperclips without express statutory or common law authority, but not to use fictitious names in legal proceedings. He correctly concluded that the doctrine was of no assistance to the Ministry and "cannot be invoked to justify infringement of a citizen's rights, particularly a right as fundamental as the right to natural justice."
Likewise, Collins J concluded that actions by the Ministry derived from the third source of government authority cannot override a citizen's right to natural justice.
Counsel for the Ministry then raised the question of whether the law could be "developed" which was firmly rejected by the judge thus: "Only Parliament can sanction breaches of . . . the observance of the principles of natural justice by authorising BRC members to use ficutions name and signatures when determining her applications for review. This is especially because anonymous decision-makers are a rare and unusual feature of a system of justice in ay jurisdiction that respects the rule of law. I would be trespassing beyond my constitutional role were I to usurp the functions of Parliament by authorising the practise followed by the Ministry in this case."
P J Radich QC (for the Ministry) then submitted that [The Plaintiff]'s right to natural justice, affirmed by s 27(1) of the New Zealand Bill of Rights Act, could be justifiably limited pursuant to s 5 of NZBORA through the Ministry ostensibly complying with its obligations under the Health and Safety at Work Act.
The judge responded: "This argument could, however, never assist the Ministry's case, but rather it creates an additional hurdle that the Ministry would have to overcome" and "It is at this point that the approach taken by the Ministry hits a further insurmountable hurdle."
Paragraph 69 of the decision states: " . . . First the use of fictitious names and signatures by Committees breached Ms L's right to the observance of the principles of natural justice. Second, there is no legislative or common law authority for Committees to have used fictitious names and signatures when determining Ms L's applications. Third, the common law cannot be "developed" to permit the practice followed by the Committees in this case. Fourth, s 5 of NZBORA cannot be invoked to savage the Committees' practice of using fictitious names and signatures."
