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TELEVISION NEW ZEALAND LTD V ATTORNEY-GENERAL ON BEHALF OF THE CHIEF
EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC WN CIV 2004 404 3028 5 August 2004

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV 2004 404 3028
UNDER the Judicature Amendment Act 1972
BETWEEN TELEVISION NEW ZEALAND LTD
Plaintiff
AND ATTORNEY-GENERAL ON BEHALF
OF THE CHIEF EXECUTIVE OF THE
DEPARTMENT OF CORRECTIONS
Defendant
Hearing: 2 August 2004

(Heard at Wellington)
Appearances: W Akel for Plaintiff
T Arnold QC and B Keith for Defendant
Judgment: 5 August 2004 at 2.50pm

Original URL
http://www.courts.govt.nz/judgments/decisions/CIV20044043028.pdf

RESERVED JUDGMENT OF RONALD YOUNG J

[1] Television New Zealand Ltd (¡§TVNZ¡¨) applied to the Chief Executive of the Department of Corrections to interview a prisoner pursuant to Regulation 87 and 88 of the Penal Institutions Regulations 2000. The application was refused on 27 May 2004. These proceedings challenge the Chief Executive¡¦s decision alleging that Regulations 87 and 88 are ultra vires the authority of the Act and that the decision involves mistakes of fact, is unreasonable, procedurally unfair and inconsistent with freedom of expression rights contained in s14 New Zealand Bill of Rights Act.

Background

[2] In December 2002 Mr Ahmed Zaoui sought refugee status in New Zealand. He is currently in the Auckland Central remand prison under Part IVA of the Immigration Act 1987. In particular he is held by virtue of a warrant of commitment

(s114O Immigration Act 1987) as a result of a security risk certificate issued by the Director of Security (s114D) and subsequent to a preliminary decision by the Minister of Immigration to rely upon the certificate (s114F and G).

[3] Since Mr Zaoui¡¦s arrival in New Zealand there has been considerable litigation and publicity surrounding his case. There has been a hearing in the Refugee Status Appeals Authority which granted Mr Zaoui refugee status. Mr Zaoui has applied to the Inspector-General to review the security certificate. There is litigation before the Courts regarding Mr Zaoui¡¦s rights of access to information and what the Inspector-General may take into account in his review. In the meantime Mr Zaoui sought and obtained an order for the removal of the then (March 2004) Inspector- General on the grounds of apparent bias. A new Inspector-General has now been appointed. There have also recently been proceedings involving an application for bail, a writ of habeas corpus and challenge to warrants for Mr Zaoui¡¦s imprisonment.

Evidence

[4] The brief affidavit evidence in this case comes firstly from Mr Zaoui himself who confirms that he has consented to the proposed interview (see Regulation 87). Secondly, Mr Ralston the head of news and current affairs TV1 news. He claimed that widespread publicity about the Zaoui case is already in the public arena. He confirmed the content of TVNZ¡¦s letter of 20 April 2004 to the Department of Corrections seeking permission for the interview and that the interview with Mr Zaoui would be about:

- His time in Nigeria, Europe and Asia

- the reasons why he came to New Zealand

- his understanding of the decision of the Refugee Status Appeals Authority last August

- his understanding of the reasons why his detention is ongoing

- his hopes for release in the future

Mr Ralston considers that, ¡§The issues raised by Mr Zaoui¡¦s detention in New Zealand are of significant public interest¡¨.

[5] Mr Byers, the Chief Executive Officer of Corrections swore an affidavit. He gives his conclusions as to why he considered an interview of the type sought was not desirable in the public interest. He said:

Such an interview would involve Mr Zaoui directly in the media coverage of the various proceedings and would add to the controversy that had arisen in respect of those proceedings. As with a remand inmate awaiting trial, I considered that an interview of Mr Zaoui could interfere with the integrity of and public confidence in the various processes that Mr Zaoui had put in train. I also considered it relevant that, as I had noted, Mr Zaoui had been able to express his position through submissions made on his behalf in the proceedings and through media comments by his lawyers. I therefore decided to decline Mr van Wel¡¦s request.

[6] Mr Byers concluded that the security issues in the prison could be managed as could any risk to Mr Zaoui from increase public profile. He noted that the New Zealand Immigration Service and the New Zealand Secret Intelligence Service, the Police and the Department of Prime Minister and Cabinet did not oppose approval of the interview.

[7] He also took into account the fact that some of the reasons for the security risk certificate were confidential and could not be publicised and that Mr Zaoui¡¦s position had been extensively covered in the media. Finally Mr Byers said he took into account a comment reported in the New Zealand Herald by Harrison J at the conclusion of the hearing of Zaoui v Greig & Anor (HC, Auckland, CIV 2004 404 317, 31 March 2004, Salmon & Harrison JJ,) as follows:

At the end of the hearing Justice Harrison warned Mr Zaoui¡¦s lawyers to be careful a out talking to the media during cases, given their own accusations about Justice Greig¡¨.

Regulation 87 is ultra vires

[8] Although pleaded last of the causes of action I turn firstly to the submission that Regulation 87 is ultra vires.

[9] Regulation 87 and 88 state:

87 Restrictions on certain interviews and recordings

(1) Without first obtaining the written approval of both the Secretary and the inmate concerned, no person may¡X

(a) interview an inmate, for the purpose of¡X

(i) obtaining information and publishing or broadcasting it; or

(ii) publishing or broadcasting a transcript or description of the interview; or

(b) make a sound recording of an inmate, or an interview with an inmate, for the purpose of¡X

(i) broadcasting it; or

(ii) publishing a transcript of it; or

(c) make or take a film, photograph, videotape, or other visual recording of an inmate, for the purpose of publishing or broadcasting it.

(2) Without first obtaining the written approval of both the Secretary and the inmate concerned, no person to whom subclause (3) applies may¡X

(a) interview an inmate; or

(b) make a sound recording of an inmate, or an interview with an inmate; or

(c) make or take a film, photograph, videotape, or other visual recording of an inmate.

(3) This subclause applies to a person who is¡X

(a) a publisher of books, or a magazine, newspaper, newsletter, circular, or other similar publication; or

(b) a broadcaster or producer of radio or television programmes; or

(c) a disseminator of news or opinion by electronic means; or

(d) a writer, a journalist (whether in electronic or print media), a radio or television broadcaster, or a producer of radio or television programmes; or

(e) an employee, contractor, or agent of a person described in any of paragraphs (a) to (d).

(4) In this regulation and regulation 88,¡X

(a) a reference to any film, information, interview, photograph, recording, transcript, or videotape includes a reference to any part of it:

(b) interview includes interview by telephone or electronic message:

(c) publish includes publish in a book.

88 Approvals

(1) The Secretary must, in deciding whether to give approval under regulation 87, have regard to the need to¡X

(a) protect the interests of people other than the inmate concerned; and

(b) maintain the security and order of the institution concerned.

(2) The Secretary must not give that approval unless satisfied that the inmate understands¡X

(a) the nature and purpose of the filming, interviewing, photographing, recording, or videotaping concerned; and

(b) the possible consequences to the inmate and other people of the publication or broadcasting of the film, interview, photograph, recording, transcript, or videotape concerned.

(3) The Secretary may give that approval subject to any conditions reasonably necessary to¡X

(a) protect the interests of any person other than the inmate; or

(b) maintain the security and order of the institution.

(4) Subclause (1) is subject to subclause (2).

[10] And the empowering provision in the Penal Institutions Act 1954, s45, states as relevant to this case:

45 Regulations

(1) The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

(1) Ensuring the good management and government of institutions: . . .

(3) Ensuring the safe custody of inmates and prisoners:

(4) Regulating the management, care, and treatment of inmates and providing for their welfare and reintegration into the community: . . .

(7) Regulating the visiting of inmates and prisoners:

(8) Prescribing circumstances when persons (other than inmates) may be refused admission to, or removed from, institutions, and authorising the use of force to facilitate such removal: . . .

(11) Regulating the photographing of inmates and the taking of their measurements and fingerprints: . . .

(16) Authorising the Secretary or a Superintendent, or both, to modify the application of any regulations made under paragraph (15) of this subsection, either wholly or to such extent as is specified in the regulations or as is specified by the Secretary:

(17) Regulating the use, by inmates and prisoners, of telephones and other means of communication: . . .

(30) Regulating the treatment of prisoners:

(30A) Authorising the Secretary to issue operational standards relating to any of the matters in respect of which regulations may be made under this section:]

(31) Providing for such other matters as are contemplated by or necessary for giving full effect to this Act and for its due administration.

(2) Without limiting the generality of subsection (1) of this section, any regulations made under this Act may be made to apply¡X

(a) Generally in respect of all institutions or in respect of any specified institution or of institutions of any specified class or classes:

(b) Generally in respect of all persons (whether inmates, prisoners, staff members of any institution, independent contractors, visitors, or any other persons) or of persons of any specified class or classes.

[11] It is common ground that delegated legislation may be the subject of judicial review (see Drew v Attorney-General [2002] 1 NZLR 58). The plaintiff submits that Regulation 87 is ultra vires because there is no provision in s45 which explicitly either prohibits or restricts media interviews of inmates. The plaintiff submits that where as claimed in this case subordinate legislation purports to restrict fundamental rights such as those contained in s14 of the Bill of Rights Act (freedom of expression) then such a restriction must be specifically authorised by the empowering statute.

[12] The plaintiff submits the position is analogous with Drew v Attorney-General

(supra). In Drew a regulation in the Penal Institutions Regulations 1999 prevented Drew from having any access to legal representation when he was charged with a prison disciplinary offence of using heroin. At p73 the Court said:

To the extent that it is necessary to refer to the Bill of Rights, the regulation is invalid because the empowering provision, read, just like any other section, in accordance with s 6 of the Bill of Rights, does not authorise the regulation. The Court merely gives s 45 a meaning that is consistent with the rights and freedoms contained in the Bill of Rights. In accordance with s 6, that meaning is to be preferred to any other meaning.

[13] The plaintiff submits there is no special or particular provision in s45 authorising refusal of access to the media especially given the requirement the Act be read in a way consistent with s14 New Zealand Bill of Rights Act. Thus the plaintiff submits that Regulation 87 restriction is not authorised by s45 of the Penal Institutions Act.

[14] I do not consider that Regulations 87/88 are inconsistent with the New Zealand Bill of Rights Act and I consider the Regulations are authorised by s45.

[15] As I understand the plaintiff¡¦s submission, it accepted that inmates did not have an absolute and unrestricted right of access to the media. The plaintiff¡¦s case was as I understood it to argue that the Chief Executive had the balance wrong in this case by placing too much importance on the interests of protecting the process as against freedom of expression rights by Mr Zaoui. This appropriate concession does seem to detract from the plaintiff¡¦s argument for unrestricted access inevitably arising if Regulation 87 is ultra vires.

[16] Section 14 New Zealand Bill of Rights Act is not absolute. It is subject to s5 which provides:

5 Justified limitations

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[17] I consider the regime provided for in Regulations 87/88 and the general discretion available to the Chief Executive of Corrections attempts to define the reasonable limits on s14 rights for prisoners. The Regulations invite a balance to be struck, given the particular facts of the case, between freedom of expression rights and for example fair trial rights.

[18] In Drew (supra) the prohibition against legal representation was absolute in contrast with the limitation in Regulation 87. The plaintiff also referred to R v Secretary of State for Home Department; ex parte Leech [1993] 4 All ER 539 where Steyn LJ considered a prison rule giving the Prison Superintendent an unrestricted right to read correspondence from a prisoner¡¦s lawyer. He said:

Legal professional privilege is therefore based on an important auxiliary principle which serves to buttress the cardinal principles of unimpeded access to the court and to legal advice. It is not without significance that counsel could not refer us to a single instance where subordinate legislation was employed, let alone successfully employed, to abolish a common law privilege where the enabling legislation failed to authorise the abolition expressly.

[19] As that quote makes clear, the subordinate legislation essentially abolished legal professional privilege for prisoners.

[20] And in R v Secretary of State for the Home Department; ex parte Simms

[2000] 2 AC 115 the Court considered an absolute ban on applicant prisoners access to the media could not be justified under the European Convention of Human Rights. Two important distinctions can be made between this decision and the Regulations here:

(i) The proposed ban on media access was absolute in Simms.

(ii) The applicants in Simms had exhausted all Court proceedings available to them and only had complaint to the media as a practical method of pursuing their complaints.

[21] Here the Regulations do not provide for an absolute ban on access to the media and Mr Zaoui is in the middle of litigation dealing with some (indeed most) of the issues TVNZ proposes to interview him about.

[22] In Regina (Hirst) v Secretary of State for the Home Department and Anor

[2002] 1 WLR 2929 the claimant was actively involved in campaigning for prisoner¡¦s rights. He wished to give telephone interviews with the media on matters of legitimate public interest relating to prisons. The calls were prohibited by the Secretary of State as he considered the calls were not for a legitimate purpose and such calls would only be allowed in wholly exceptional circumstances. The appellant sought judicial review on the grounds that the refusal and policy of the Secretary breached the prisoner¡¦s rights of freedom of expression identified in s10 of the European Convention for the Protection of Human Rights.

[23] Elias J in giving the judgment said:

. . . freedom of speech is an amorphous concept. It can be exercised in a whole variety of circumstances and sometimes it will take on particular importance because it is required to safeguard some other distinct and separate fundamental common law right over and above the mere right to freedom to speak freely.

[24] After reviewing cases such as Leech (supra) the Judge said:

These cases demonstrate how even before the passing of the Human Rights Act 1998 the Courts were able to protect freedom of speech where it was directed at securing an important right of the citizen. Absence and very clear indication of the contrary it was not to be inferred that it was lost as part of the sentence of imprisonment itself. The common law would require very clear authority to take away such a right.

[25] And as the House of Lords in Simms emphasised the important and indeed vital factor in deciding whether the particular restriction on free speech is justified depends upon the basis upon which the exercise of free speech is sought. While these cases do relate to prisoners sentenced to imprisonment the essential principle adjusted for the state of incarceration still applies to someone in Mr Zaoui¡¦s position, lawfully in custody but not a sentenced prisoner. I also acknowledge the s10(2) restrictions in the European Convention on freedom of speech are not directly contained in s14 and s5 of the New Zealand Bill of Rights Act. However, I consider the principles revealed in these cases are correct and are relevant to the New Zealand position. Section 5 is concerned with reasonable limits prescribed by law as can be justified in a free and democratic society. The reasonable restraints on the limits prescribed by Regulation 87 and 88 and the more general discretion given to Chief Executives are properly defined, as I have observed, by careful consideration of why it is proposed to restrict the freedom of speech. If the limit is reasonable and can be justified in a free and democratic society, then restriction will not be incompatible with the New Zealand Bill of Rights Act.

[26] Finally in R (on the application of ¡§A¡¨) v Home Secretary [2004] HRLR 12 the Court considered proposed interviews by six persons in custody certified by the Secretary of State as suspected terrorists with the BBC and The Guardian newspaper. The legal process was completed and conditions on interview by the prison service were imposed. In considering the allegations of breach of Article 10 of the European Convention on Human Rights (similar to s14 of the New Zealand Bill of Rights) the Court found that the conditions on interview were a reasonable restriction on freedom of expression rights.

[27] I am satisfied that s45 does authorise Regulations 87 and 88 and those regulatory provisions are not in conflict with the New Zealand Bill of Rights Act. The New Zealand Bill of Rights Act does not provide for absolute rights. Section 14 is subject to s5 restrictions. There are rational and sensible reasons from time to time to restrict inmates access to the media. For example, protecting victims and fair trial rights. The Regulations identify some grounds which are relevant to approval. These grounds are not exhaustive. Regulations 87 and 88 do not breach the New Zealand Bill of Rights Act in that they do not prohibit absolutely the right of freedom of expression. Indeed, the Regulations provide for the very balancing of potentially competing rights, for example the right of fair trial, as against rights under s14 of freedom of expression that the New Zealand Bill of Rights Act itself anticipates through s5. Some restriction on access to the media for those lawfully in the custody of the State is reasonable where exercised in circumstances that can be justified when balanced against freedom of expression rights. Regulation 87 and 88 and the basis upon which the Chief Executive proposes to exercise the restriction here come within the category of reasons which can be legitimately justified to refuse such interviews. I am therefore satisfied that the Regulations are not ultra vires s45 and are not in breach of the New Zealand Bill of Rights Act.

Judicial Review

[28] The plaintiff maintains that the Chief Executive of Corrections is plainly wrong, made an error of law, and failed to take into account relevant considerations when deciding to refuse to allow TVNZ to interview Mr Zaoui about the matters contained in their letter of April 2004. I propose to consider all three grounds together because irrespective of how the alleged failure by Corrections is expressed the central issue for this Court is narrow.

[29] As I have recorded the plaintiff accepted, I consider properly, that as a general expression of principle the Chief Executive of Corrections was entitled to take into account in a Regulation 87 application whether the interview could, ¡§interfere with the integrity and public confidence in the various processes that Mr Zaoui had put in train¡¨ as Mr Byers said. The plaintiff accepted that as a general proposition a balancing act was required between that principle and freedom of expression rights. The plaintiff¡¦s submission was, however, in this case there was no risk at all that any interview could or would affect the integrity of any processes to follow and that on the particular facts of this case in any event s14 rights should dominate.

[30] The plaintiff stressed the principle that a prisoner¡¦s ¡§civil rights¡¨ remained unless specifically removed or demonstrably inconsistent with their status as a prisoner. I accept this principle. However, in cases involving prisoners, there clearly will be situations where an interview with the media is objectionable. Prisons could hardly be expected to allow media access to a remand prisoner who wished to undertake a media campaign to convince the public of his innocence pre-trial. The position may, however, be quite different post trial when all avenues to the Courts and other public institutions are exhausted (see Simms and Hirst]. Then such access may be unobjectionable. I accept the proposition of the plaintiff that particular care must be taken to justify restriction on freedom of expression rights where an individual is already subject to state restriction by incarceration.

[31] The plaintiff¡¦s submission on the affect of any interview on the integrity of the Court system and the subsequent process focused on the capacity to influence decision makers. While I do not discount such a proposition (see Solicitor-General v Smith [2004] 2 NZLR 450) I consider there is a broader and more important principle. Undermining the integrity of the Courts and other statutory decision makers by some form of parallel Court system operating in the media has been the subject of considerable judicial comment over the years. Remand prisoners may be prevented from access to the media to talk about their case not just because of fair trial dangers but also because the integrity of the Court system can be undermined if a parallel trial without the attendant rules is run in the media at the same time or prior to an accused¡¦s trial. The public need to believe that decision makers in a Court system or a public process will make their judgment untrammelled by publicity. This principle goes to the integrity of the Courts and statutory decision makers and public confidence in the process. The Courts rely upon public confidence to do their work. Undermining that confidence undermines the Court¡¦s capacity to do its job.

[32] As Lord Diplock said in Attorney-General v Times Newspapers Ltd [1974] AC 273 at 309 all citizens should have (a) unhindered access to Courts for the determination of disputes as to their legal rights and liabilities; and (b) be able to rely on the courts as free from bias against any party whose decisions based solely on facts proved in evidence properly adduced; and (c) once the dispute has been submitted to a court they would be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. While the Court there was discussing contempt, the underlying principle is relevant here. Allowing extensive pre-hearing publicity may or may have the appearance of usurping the function of the Court to decide the case according to law.

[33] I am satisfied therefore that there are issues of principle relating to public confidence in the process that entitled and indeed required the Chief Executive to consider in this case when considering the Regulation 87/88 application. The Chief Executive had to consider these issues in relation to facts of this particular case. In my view there were a range of factors which were potentially relevant in additional to those mentioned above. They include:

(i) The subject matter of the proposed interview as revealed in Mr van Wel¡¦s letter of April 2004 to Corrections was directly related to the issues before the Courts and the Inspector-General.

(ii) I agree with the defendant¡¦s submission that the security review process currently underway is especially vulnerable to one sided publicity. As the defendant submitted, this is a case where it is ¡§impossible for there to be a market place of ideas¡¨ debated and discussed in the media. Neither the Minister of Immigration nor the Inspector-General can discuss the contents and material relating to the security risk certificate. This statutory requirement leaves the process especially vulnerable to one-sided reporting and therefore especially vulnerable to an undermining of confidence in the process.

(iii) Counsel for Mr Zaoui also seemed to accept that Mr Zaoui was vulnerable to inappropriate timing of an interview and broadcast when in response to TVNZ¡¦s request for an interview they said: Aside from what has already been set out in your letter of yesterday we record that a particular concern will be the timing of the interview of Mr Zaoui and the broadcast of that interview. The timing of either of these events may become inappropriate for a number of reasons including the stage of legal proceedings in which we are engaged.

(iv) Mr Zaoui has already had a number of opportunities to publicise his case. It seems common ground that his lawyers have taken the opportunity of talking to the media from time to time. As I have recorded, Harrison J is reported in the New Zealand Herald as having said at the conclusion of the proceedings dealing with the issue of apparent bias of the Inspector-General that care needed to be taken by counsel for Mr Zaoui (and Mr Zaoui himself) that they did not commit the very error they identified as objectionable in the Inspector-General¡¦s conduct.

The reported Refugee Status Appeals Authority decision contains extensive material regarding Mr Zaoui including his background and circumstances. This is not therefore a case where Mr Zaoui has had no voice.

(v) Finally, there is something to be said for the defendant¡¦s submission that there is a close analogy to be drawn in this case with the remand prisoner. It would be reasonable for prison authorities to prevent a remand prisoner from speaking to the media about his upcoming trial. The dangers directly for the decision maker and more broadly to the integrity of the system and public confidence in it are obvious and already identified by me. While Mr Zaoui is not a remand prisoner, he does propose to give an interview covering the very issues before the courts and other statutory bodies. Some of the concerns relevant to the remand prisoner can therefore be legitimately identified in this case.

[34] Given the fact that the proposed interview included coverage of the issues before the courts and other bodies meant in my view it was reasonable for the Chief Executive to consider issues of public confidence in the courts and other processes. The Chief Executive had a balance to strike between the potential damage to public confidence and free speech rights. There is no evidence to justify the conclusion that the balance reached by the Chief Executive was beyond the range of responses reasonably open. For this purpose I accept the test ¡§unreasonableness¡¨ enunciated by Lord Hobhouse in R v Secretary of State for the Home Department,, ex parte Simms & Anor [1999] 3 All ER 400 at 423-424 as follows:

The court must be satisfied that the relevant decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decisionmaker: the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is not unreasonable.

[35] Given my conclusions above, I am satisfied the Chief Executive¡¦s conclusion was clearly open to him. These proceedings as judicial review do not involve substituting my view for the person given the responsibility to make the decision.

[36] The allegations of errors of law and failure to consider relevant matters add nothing to the review grounds. The error of law alleged was: Declining permission to TVNZ to interview Mr Zaoui was not a reasonable limitation on the right to freedom of expression that can be demonstrably justified in a democratic society.

[37] I have already concluded that this was no error of law. Once it is accepted that the Chief Executive has a balance to strike between freedom of speech and Court processes then the balance to be struck is the Chief Executive¡¦s as long as the response is reasonably open to him

[38] The relevant considerations allegedly not considered by the Chief Executive were (as identified by the plaintiff):

(a) In light of Mr Zaoui¡¦s loss of other fundamental human rights, his surviving right to freedom of expression is enhanced;

(b) The risk to the integrity of court processes is significantly reduced where there is:

- ƒnNo jury

- ƒnNo witnesses

(c) The objectives of freedom of expression of self fulfilment, and providing a test of truth, are not met if the right to freedom of expression of the public, and Mr Zaoui is restricted to speaking through a third party.

[39] I have already considered these issues. The risk to integrity of the Court process is a relevant factor in this case to take into account. Whether there is any media campaign is irrelevant. However, there is no evidence that Mr Byers suggested he believed there was such a campaign or that he took it into account. He did report that the New Zealand Secret Intelligence Service were concerned about this aspect and he did report Justice Harrison¡¦s remarks. There is nothing to this ground on review therefore. The Chief Executive properly took into account in deciding the Regulation 87/88 application public confidence issues.

Procedural unfairness

[40] The final ground of review is an allegation that the Chief Executive did not follow a procedurally fair process in reaching his decision. The submission by the plaintiff can be summarised in short order.

[41] The submission is that TVNZ and Mr Zaoui should have been provided

With the opportunity to participate in or comment upon the consultation process undertaken by the Chief Executive and/or the advice he received.

[42] The complaint is also made that TVNZ and Mr Zaoui were not provided with any information obtained by the Chief Executive through the consultation process nor were they provided with that opportunity to comment with regard to any issues or allegations raised during the course of this process.

[43] I do not consider that this is an occasion where the Chief Executive is obliged to consult. In Nichols v Health and Disability Commission [1997] NZAR 351 Tipping J concluded that such an obligation may arise where there was a statutory requirement to consult, where there has been an established practice, or where fairness requires it. The first two categories do not apply here. I do not see that fairness requires consultation in this case. TVNZ made an application to be allowed to interview Mr Zaoui in terms of the Penal Institutions Regulations 2000. The Chief Executive considered the application and refused it. The plaintiff has not been able to identify any information which Mr Byers had access to which he should have provided to TVNZ or Mr Zaoui to comment about. There was no suggestion of actual prejudice said to have resulted from the lack of consultation. Nor does the plaintiff suggest there was in fact any unfairness here.

[44] In this case the Chief Executive was responding to an application. He was entitled to assume the plaintiff had exhaustively provided all relevant information in support of the application. He was not then obliged to go back to the applicant with any view from others whom he consulted. And in this case those consulted said they had no objection to the application. No unfairness in any event has in fact resulted. I reject this ground of review.

[45] I therefore refuse the declarations sought by the plaintiff.

[46] If the defendants seek costs I invite memoranda from counsel within 14 days and in reply from the plaintiff within a further 14 days.

¡§Ronald Young J¡¨

Signed at 2.50pm this 5th day of August 2004

Solicitors:

Simpson Grierson, Auckland, for Plaintiff

Crown Law Office, Wellington, for Respondent

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