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Court of Appeal of New Zealand |
Last Updated: 24 January 2018
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IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN THE COMMERCE COMMISSION
Appellant
AND AIR NEW ZEALAND LIMITED
First Respondent
AND PETER ELMSLY, MURRAY GREGG AND MICHAEL
TURNER
Second Respondents
Hearing: 19 & 20 October 2010
Court: Glazebrook, Arnold and Harrison JJ
Counsel: F M R Cooke QC, J C L Dixon and B Hamlin for
Appellant
A R Galbraith QC and D J Cooper for
First Respondent
J G Miles QC and R J Sussock for
Second Respondents
V E Casey and R A Kirkness for
Attorney-General as Intervener
Judgment: 10 March 2011 at 3
pm
|
JUDGMENT OF THE COURT
|
B The cross-appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
Table of Contents
Para No
Introduction [1]
Background [8]
Andrew J’s judgment [16]
Scope of the appeal [17]
The legislation [20]
Commerce Act [21]
Bill of Rights [26]
Does s 100 cover only
confidential information provided to the
Commission?
Air NZ’s submissions [30]
The Commission’s
submissions [33]
Intervener’s
submissions [39]
Issues
arising [43]
Our
interpretation of s 100 [45]
Limited extent of the
orders [48]
Legislative
history [51]
Judicial
interpretation [56]
Position
of other agencies [57]
Position in other
jurisdictions [60]
Bill of
Rights [65]
Canadian case
law [78]
Can s 100
notices cover questions posed?
Andrews J’s judgment [86]
The Commission’s
submissions [87]
Air
NZ’s submissions [88]
Our assessment [89]
Can s 100 orders survive the
issuing of proceedings?
Andrews J’s judgment [93]
The Commission’s
submissions [96]
Air
NZ’s submissions [99]
Second respondents’
submissions [100]
Intervener’s
submissions [103]
Our
assessment [107]
Section
27(3) of the Bill of Rights [113]
Summary of conclusions [115]
Result and costs [119]
Suppression orders [124]
Introduction
[1] This appeal relates to the powers of the Commerce Commission (the Commission) under s 100 of the Commerce Act 1986 (the Act).
[2] In the High Court, Andrews J held that s 100 of the Act allows the Commission, for the period it is carrying out its investigation, to make s 100 orders prohibiting disclosure of any information or evidence given to the Commission in an interview under s 98(c) of the Act.[1]
[3] Air New Zealand (Air NZ) cross-appeals against that conclusion. It says that s 100 is intended to protect confidential information provided to the Commission. It does not empower the Commission to make blanket “gagging orders”, having the effect of preventing an interviewee from disclosing what was said at the interview. The second respondents support Air NZ’s interpretation.
[4] Andrews J held, however, that s 100 orders are limited to information, documents and answers given by a witness and do not protect the questions giving rise to the answers or other materials put to the witness.[2] The Commission appeals against that finding.
[5] Andrews J also held that the filing of proceedings in the High Court means that any s 100 orders ceased to have effect.[3] The Commission appeals against that finding, saying that the orders can survive the filing of proceedings if the Commission is still investigating a matter.
[6] The issues arising therefore are:
(a) whether s 100 covers only confidential information provided to the Commission;[4]
(b) if so, whether s 100 orders can cover questions posed, and other material put, to a witness;[5] and
(c) whether s 100 orders can survive the issuing of proceedings.[6]
[7] Before we deal with those issues, we set out the background,[7] the orders made by Andrews J,[8] the limited scope of the appeal[9] and the legislative background.[10]
Background
[8] In December 2005 the Commission began an investigation into alleged anti-competitive conduct within the air cargo industry. This was triggered by Lufthansa approaching the Commission seeking leniency for cartel behaviour under the Commission’s leniency policy.
[9] Document production notices were served on Air NZ and numerous other airlines between 16 February 2006 and 24 November 2008. In September 2006 the Commission executed a search warrant on a number of Air NZ offices. In July 2007 the Commission issued its first notice under s 98(c) of the Act on an Air NZ employee and, in the course of the next 14 months, a further 15 notices were issued. The notice required the employee to attend an interview by the Commission.
[10] Each of the Air NZ employees were interviewed on oath before a Commissioner and members of the Commission’s staff. The employees were represented by counsel at the interviews. The interviews were recorded and a transcript of each interview was produced and provided to the employee through their counsel. Those interviewed included the second respondents, Messrs Elmsly, Gregg and Turner.
[11] At 13 of the 16 interviews, the Commission made an order under s 100 of the Act prohibiting the employee and his or her counsel from disclosing to Air NZ, or to any person, what was said at the interview.[11] It provided:
IN RELATION TO the following information, documents or evidence, either oral and/or in written form (the Information)
1. Any information provided by [the interviewee] in [the section 98(c) hearing].
2. Any information provided by [the interviewee’s] legal representative/s at the section 98(c) hearing.
3. Any information received from the Commission (including the Commission’s representatives) including but not limited to the Commission’s questions, transcripts or any recordings in the interview conducted at the section 98(c) hearing.
4. Any documents shown and/or discussed by the Commission (or the Commission’s representatives) at the s 98(c) hearing.
PURSUANT to section 100 of the Act, the Commission makes an Order PROHIBITING the publication, communication or giving in evidence of the information save as is otherwise allowed by consent of the Commission.
Information gained by the Commission during this investigation and in the Commission’s possession, but not subject to this Order, is subject to the Official Information Act 1982. Information in the Commission’s possession subject to this Order will, upon expiry or revocation of this Order, be subject to the Official Information Act 1982.
[12] Although the notices were not in these terms, the Commission’s practice is to explain to the witness that they are not constrained from talking to others (without limitation) about the underlying facts and documents that were within their own knowledge before the interview. The Commission thus maintains that, despite the s 100 orders, the witnesses were still able to discuss the underlying facts. The Commission says that the only thing the witnesses could not talk about was the evidence they gave before the Commission (meaning the questions that were asked and the answers they gave and any information or documents shown to them in the course of the interview). We note, however, that in the transcripts of the interviews we were shown, the purported oral modification of the notice did not appear to have been made at the time of the interview.
[13] On 15 December 2008 the Commission issued proceedings against Air NZ, Mr Elmsly, Mr Gregg and Mr Turner and two other former employees of Air NZ, Mr Hamburger and Mr Lawless[12] (the air cargo proceeding) alleging breaches of s 27 of the Act, which prohibits contracts, arrangements, or understandings that substantially lessen competition. At the same time, the Commission issued proceedings against 12 other airlines and two individuals alleging substantially similar breaches of the Act. Neither Air NZ nor any of the employees has filed a statement of defence to the air cargo proceeding.
[14] On 23 December 2008 Air NZ’s solicitors requested discharge of the s 100 orders. The Commission’s solicitors responded on 30 January 2009. They advised that the Commission was prepared to consider varying the s 100 orders so as to permit disclosure of the contents of the s 98(c) hearings to certain named solicitors and counsel and to Air NZ’s in-house legal counsel. That was not acceptable to Air NZ, as it did not allow the solicitors to discuss any of the information freely with their clients, potential witnesses (including those interviewed by the Commission) and counsel and solicitors for other defendants in the air cargo proceeding or defendants in the related proceedings.
[15] On 19 March 2009 Air NZ and the second respondents applied to the High Court for an order staying the air cargo proceeding until such time as the Commission discharged the s 100 orders (the stay application). At the same time, Air NZ and the second respondents filed proceedings for judicial review of the Commission’s decisions to make, and maintain, the s 100 orders (the judicial review proceeding).
Andrews J’s judgment
[16] In the High Court, Andrews J found in favour of the respondents in the judicial review proceeding and therefore did not need to deal with the stay application. She made the following declarations:
(a) s 100 does not empower the Commission to maintain confidentiality orders after the date of commencement of proceedings in respect of the investigation or inquiry to which such orders relate;
(b) the s 100 orders at issue in the proceeding lapsed as of 15 December 2008;
(c) the continuation of the orders following the commencement of the air cargo proceeding is unreasonable and therefore the orders are of no further effect;[13]
(d) the continuation of the orders following the commencement of the air cargo proceeding is a breach of natural justice and s 27 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and the orders are of no further effect;
(e) costs are payable with an allowance for second counsel;
(f) the transcripts of interviews conducted by the Commission are not to be used by Air NZ other than for the purposes of, or disclosed to any other party other than in relation to, the Commission’s proceeding under s 80 of the Act in the High Court, Auckland; and
(g) disclosure of the transcripts as a result of this proceeding is not to be construed as a waiver of any privilege or confidentiality of Lufthansa or the Commission in relation to information or documents provided by Lufthansa to the Commission.
Scope of the appeal
[17] In her judgment, Andrews J held that the Commission could not continue s 100 orders that were in effect up to the point of issuing proceedings.[14] She further held, in light of her findings that the continuation of the s 100 orders was an abuse of process, unreasonable and in breach of s 27 of the Bill of Rights, that the orders were to be quashed.[15]
[18] The Commission did not seek interim orders pending the appeal and does not intend to reimpose the s 100 orders if the appeal is allowed. While this means that the appeal is in a sense moot, the proceedings in the High Court challenged the Commission’s jurisdiction to make the orders and that challenge is continued in the cross-appeal. Similar issues of principle arise to a more limited extent in the appeal.
[19] It is therefore appropriate for the appeal and cross-appeal to proceed. We will not, however, be dealing with any of the factual issues relating to the particular notices as these are moot, including whether in the particular circumstances the investigation was continuing once the proceedings were issued or whether the continuation of the s 100 orders was unreasonable.
The legislation
[20] We set out in this section the statutory provisions referred to in this judgment.
Commerce Act
[21] Section 98 of the Act provides:
98 Commission may require person to supply information or documents or give evidence
Where the Commission considers it necessary or desirable for the purposes of carrying out its functions and exercising its powers under this Act, the Commission may, by notice in writing served on any person, require that person
...
(c) to appear before the Commission at a time and place specified in the notice to give evidence, either orally or in writing, and produce any document or class of documents specified in the notice.
[22] Section 99 of the Act gives the Commission power to take evidence whether or not it is admissible in a court of law[16] and provides that the Commission can require the evidence referred to in s 98(c) to be given on oath.
[23] Section 98G of the Act (inserted from 1 July 1990) provides:
98G Commission may exercise powers notwithstanding other proceedings
The Commission may exercise any power under sections 98 to 98F of this Act notwithstanding that any proceedings, whether under Part 6 of this Act or otherwise, have been instituted in any Court.
[24] Section 100 of the Act provides:
100 Powers of Commission to prohibit disclosure of information, documents, and evidence
(1) Subject to subsection (2) of this section, the Commission may, in relation to any application for, or any notice seeking, any clearance or authorisation under Part 5 of this Act, or in the course of carrying out any other investigation or inquiry under this Act, make an order prohibiting—
(a) The publication or communication of any information or document or evidence which is furnished or given or tendered to, or obtained by, the Commission in connection with the operations of the Commission:
(b) The giving of any evidence involving any such information, document, or evidence.
(2) Any order made by the Commission under subsection (1) of this section may be expressed to have effect for such period as is specified in the order, but no such order shall have effect,—
(a) Where that order was made in connection with any application for, or any notice seeking, any clearance or authorisation under Part 5 of this Act, after the expiry of 20 working days from the date on which the Commission makes a final determination in respect of that application or notice, or, where that application or notice is withdrawn before any such determination is made, after the date on which the application or notice is withdrawn:
(b) Where that order was made in connection with any other investigation or inquiry conducted by the Commission, after the conclusion of that investigation or inquiry.
(3) On the expiry of any order made under subsection (1) of this section, the provisions of the Official Information Act 1982 shall apply in respect of any information, document, or evidence that was the subject of that order.
(4) Every person who, contrary to any order made by the Commission under subsection (1) of this section, publishes or communicates any information or document or evidence commits an offence and is liable, on summary conviction, to a fine not exceeding $4,000 in the case of a person not being a body corporate, and $12,000 in the case of a body corporate.
[25] Section 106 deals with privilege. In relevant part it reads:
106 Proceedings privileged
(4) A person shall not be excused from complying with any requirement to furnish information, produce documents, or give evidence under this Act, or, on appearing before the Commission, from answering any question or producing any document, on the ground that to do so might tend to incriminate that person or that person’s spouse.
(5) A statement made by a person in answer to a question put by or before the Commission shall not in criminal proceedings or in proceedings under section 80 or section 83, be admissible against that person, or that person’s spouse.
(6) Nothing in subsection (5) applies in respect of—
(a) Proceedings on a charge of perjury against the maker of the statement; or
(b) Proceedings on a charge of an offence against section 103(1)(b).
(7) No Court or other person shall be entitled to require any member of the Commission, or any employee of the Commission or any other person present at any meeting of the Commission, to divulge or communicate any information furnished or obtained, documents produced, obtained or tendered, or evidence given, in connection with the operations of the Commission.
(8) Nothing in subsection (7) applies in respect of—
(a) Any proceedings referred to in subsection (3) or subsection (6); or
(b) Any proceedings to which the Commission is a party.
(9) Anything said, or any information furnished, or any document produced or tendered, or any evidence given by any person to the Commission, shall be privileged in the same manner as if that statement, information, document, or evidence were made, furnished, produced, or given in proceedings in a Court.
Bill of Rights
[26] Section 3 of the Bill of Rights provides:
3 Application
This Bill of Rights applies only to acts done—
(a) By the legislative, executive, or judicial branches of the government of New Zealand; or
(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
[27] Section 5 of the Bill of Rights 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.
[28] Section 14 of the Bill of Rights provides:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
[29] Section 27 (3) of the Bill of Rights provides:
27 Right to justice
(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
Does s 100 cover only confidential information provided to the Commission?
Air NZ’s submissions[17]
[30] Air NZ submits that the purpose and effect of s 100 is to protect the confidentiality of information and that it was inserted for the benefit of the holders of that information. In its submission, s 100 cannot be used to impose blanket “gagging” orders under which a person can be compelled to give evidence to the Commission and then prohibited from disclosing to anyone else (including, in this case, his or her employer and co-defendants) the questions asked by the Commission, the answers given and any information provided to and by the Commission during a s 98 interview.
[31] Air NZ submits that its narrower view of the scope of s 100 is consistent with the text of s 100, its statutory context and purpose (including the lack of similar powers for other agencies), judicial interpretation of the section, the legislative history (and related provisions in other legislation) and the protection of freedom of expression under s 14 of the Bill of Rights. Applying the test set out by the Supreme Court of Canada in R v Oakes,[18] as applied in R v Hansen,[19] the Commission has failed to establish that such a restriction on freedom of expression is “demonstrably justified in a free and democratic society” so as to warrant the expansive interpretation of s 100 necessary to permit blanket “gagging” orders.
[32] The following alternative declarations are sought by Air NZ in its cross-appeal:
(a) the orders made by the Commission are not authorised by s 100 of the Act;
(b) s 100 of the Act does not empower the Commission to make orders which have the effect of preventing a person from disclosing to other persons the questions asked by the Commission (except to the extent that such questions incorporate information otherwise covered by orders validly made under s 100); or
(c) s 100 of the Act does not empower the Commission to make orders which have the effect of preventing a person giving information, documents or evidence to the Commission in an interview from disclosing that information, documents or evidence to other persons.
The Commission’s submissions
[33] In the Commission’s submission, there is nothing in s 100 to suggest that it is limited to commercially sensitive information. Moreover, the Judge was wrong to say that the orders prevented the witnesses from recounting the underlying facts. All that was suppressed by the orders was the evidence given to the Commission.
[34] The Commission submits that s 100 is framed in general terms and so the protection of the Commission’s investigative process can justify an order. The Commission asserts that the legislative background supports its interpretation, that its interpretation is consistent with overseas authority in Australia and Canada and that it is not contrary to the Bill of Rights. The Commission says that Air NZ’s interpretation of s 100 would destroy the intended utility of the section.
[35] The Commission points out that investigative confidentiality is a well recognised head of non-disclosure under the Official Information Act 1982 (the OIA). Furthermore, other recognised justifications – such as the confidentiality afforded to witnesses and leniency applicants to facilitate disclosure – will also arise. The only difference between the Commission and other bodies subject to the OIA regime is that the Commission has been given the additional power to make suppression orders.
[36] The Commission submits that suppression orders protect the integrity of the outcome of the investigation. When a witness does not know what information the Commission holds, there is enforced candour because otherwise the witness risks being caught out by any dishonest answers, potentially exposing themselves to criminal liability. Confidentiality as to the Commission’s lines of inquiry, therefore, aids the investigative process.
[37] The Commission submits that a requirement that it conduct its investigations in a completely open way would handicap the effective investigation of cartels. Cartels operate dishonestly and covertly so as to subvert the market in which they operate. The prevention of collusion between witnesses cannot be disregarded but there is also significant prejudice arising from the type of witness preparation that targets of an investigation could engage in if the Commission is required to conduct all investigations in an open way.
[38] In the Commission’s submission, the need for effective measures to counter cartels is inextricably interlinked with effective means for detecting and investigating them. That is because the illegality involved in cartels flows over into techniques employed to prevent discovery and investigation of them.
Intervener’s submissions
[39] The Attorney-General was given leave to appear as intervener on Bill of Rights issues. His position is that any order under s 100 of the Act limits the right to freedom of expression protected by s 14 of the Bill of Rights.
[40] The Attorney-General submits that two different objectives can be identified in relation to s 100 that appear to be in issue in this case. They are:
(a) protecting confidential information for the benefit of the party providing the information; and
(b) protecting the Commission’s investigation process by preventing interviewees from colluding in the evidence they provide to the Commission.
[41] In the Attorney-General’s submission, different issues arise under s 5 of the Bill of Rights in justifying orders made for each of these two different objectives. In addition, each exercise by the Commission of its powers under s 100 must be consistent with the Bill of Rights.
[42] The Attorney-General submits that, while s 100 orders that fall within the first category meet the test under s 5 of the Bill of Rights, there is an issue as to whether s 100 orders that are made for the purpose of preventing collusion between witnesses meet the s 5 test.
Issues arising
[43] We discuss first the manner in which we would interpret s 100 according to normal purposive interpretation principles and then deal with the Commission’s submission about the limited reach of the orders; namely that they do not prohibit discussion of the underlying facts.[20]
[44] We then discuss the following additional issues arising from the submissions:
(a) legislative history;[21]
(b) judicial interpretation;[22]
(c) position of other agencies;[23]
(d) position in other jurisdictions;[24] and
(e) the Bill of Rights.[25]
Our interpretation of s 100
[45] Section 100 is couched in broad terms. Within the time limitation in s 100(2), it allows orders prohibiting publication or communication of any information, document or evidence “furnished or given or tendered to, or obtained by” the Commission in the course of its operations. We accept the Commission’s submission that there is no warrant in the words of the section or in the context of the statute to read in any limitations and qualifications, apart from the obvious and implicit one that any orders made under s 100 must be made for proper purposes (namely for purposes related to the functions of the Commission under the Act). It follows that we reject Air NZ’s submission that the ambit of s 100 is limited to the protection of confidential information.[26]
[46] There is, however, a difference between having wide powers and exercising them. Making a s 100 order is a serious step and before the Commission does so it should satisfy itself that such an order is necessary in the context of the particular investigation being undertaken. Any orders made, and their scope and duration, should be kept under review. Depending on the stages of the investigation, the weight to be accorded to different factors may vary. Further, any orders must be tailored to the circumstances of the case.
[47] As noted above, because the factual matters underlying this appeal are now moot, we do not discuss them in detail. However, it does not appear that the Commission did keep the s 100 orders under review in this case. This is of concern. Once the interviews had been completed, the balance of all relevant factors may have changed and, at that stage, the Commission should have considered whether or not continuation of the orders was still required.
Limited extent of the orders
[48] Andrews J considered that the orders were appropriately described as having a “chilling effect” on the ability of Air NZ and the second respondents to instruct solicitors and counsel and for the solicitors and counsel to provide advice, and their ability to defend the air cargo proceeding. The Judge did not accept Mr Cooke’s submission that the interviewees can recount “the underlying facts”.[27] She considered it extremely unlikely that there would have been anything an interviewee could say about “the underlying facts” that would not have been in breach of the s 100 orders.
[49] Section 100 gives the power to frame orders that prohibit discussion with anybody about the “information, documents or evidence” covered by the section. The Commission was entitled therefore to prohibit discussion of the underlying facts, provided the requirements discussed at [46] above are met. We thus reject Air NZ’s submission that s 100 cannot ever be used to impose blanket “gaggingR[28] orders.28
[50] In this case the Commission chose to frame its written orders in broad terms but says that it orally modified the scope of the orders to allow discussion of the underlying facts. [29] As s 100 gives broad powers, it must include the power to make less restrictive orders. If the Commission wished to make less restrictive orders, however, it should have made that clear in its written orders. It thus should have stated in the written orders themselves that the parties subject to them were entitled to discuss without limitation “the underlying facts”.
Legislative history
[51] The parties all assert that the legislative history supports their interpretation of s 100. We accept Air NZ’s submission that, whenever s 100 has been discussed in Parliament, its purpose has always been described as protecting the confidentiality of information for the benefit of the person providing that information to the Commission.[30] Section 100 has never been explicitly discussed in terms which suggest it was intended to serve the purpose of protecting the integrity of an investigation.
[52] On the other hand, we also accept the Commission’s submission that the work of the Information Authority (the Authority) is of significance. That body undertook a review of legislative confidentiality provisions to establish whether they were justified in light of the principles set out in the OIA. The Authority identified 200 provisions and recommended significant repeal or amendment of a number of them. Section 100 was one of the provisions specifically addressed. There is no written record of the Authority’s deliberations, but the position is summarised in Eagles, Taggart and Liddell as follows:[31]
The Authority had assessed the need for continued protection against a set of criteria it had developed to analyse protected provisions. The amended provisions represented those situations where a justified need for extra protection had been shown. Some illustrated a need for a time dimension to be built into protection. The powers to impose confidentiality orders under the Commerce and Securities Acts were amended. These can now continue only during the currency of an investigation. Appeals against decisions not to disclose during that period can be made to the High Court. Afterwards, the availability of the information is to be assessed according to the criteria of the OIA.
[53] The proposed amendments to the Act, which resulted from the Authority’s deliberations, explicitly extended the s 100 power so that it could be used whenever the Commission was carrying out investigations and also introduced the time limit in relation to such orders.[32] The proposals had also recommended amending s 100 so that it provided the following:
(1) The Commission may, where there would be good reason for withholding information under the provisions of the Official Information Act 1982, make an order (which may be expressed to have effect from the commencement of any inquiry or other proceedings of the Commission to the determination of such inquiry or proceedings) prohibiting:
(i) The publication of that information; or
(ii) The giving of any evidence involving that information.
[54] The OIA criteria, which it was proposed would apply to justify a s 100 order, included investigative confidentiality.[33] The Commission made submissions to the Select Committee supporting most of the proposed amendments, but opposing the introduction of the OIA criteria on the basis that this was unnecessary and could create problems.[34] The criteria in the OIA were thus not introduced in the amendment to s 100 but this cannot, in our view, be taken as narrowing the grounds on which s 100 orders could be made.
[55] Given the history of s 100, including the proposed introduction of the OIA criteria, we consider that the legislative history on balance supports the Commission’s interpretation. However, as is often the case, we did not find the legislative history of the section of much assistance in interpreting s 100.
Judicial interpretation
[56] We were referred to a number of New Zealand cases by both parties. None of these cases dealt with the scope of s 100 and we did not find them of assistance in interpreting the provision.
Position of other agencies
[57] Air NZ submits that it is significant that other investigating agencies, including the police and the Serious Fraud Office (the SFO), do not have the power to make “gagging orders” in relation to interviews.[35]
[58] While we accept that this is the case, the issue is the interpretation of s 100 and the suppression powers available to the Commission. Even on Air NZ’s interpretation, s 100 gives the Commission powers not available to the police or the SFO. This might be explicable by the different nature of the Commission which is not purely an investigatory body.[36]
[59] Further, while the police and the SFO may not have a power to make orders prohibiting witnesses from discussing the content of any interview with other potential witnesses, requests to that effect are routinely made. In addition, measures to ensure that evidence is not contaminated are often taken; for example interviewing witnesses separately and preventing communication between them beforehand.
Position in other jurisdictions
[60] We accept the Commission’s submission that the position in Australia lends some support to its interpretation of s 100.[37] In Australia, the power to impose suppression orders has been implied into Australian legislation such as the National Companies and Securities Commission Act 1979,[38] the Trade Practices Act 1974[39] and the Australian Securities and Investments Commission Act 2001,[40] notwithstanding the absence of a provision such as s 100.
[61] In the decision of National Companies & Securities Commission v Bankers Trust Australia Ltd[41] it was stated that it was proper to imply a power in the National Companies and Securities Commission to take all reasonable steps which were necessary to secure a “private” rather than public hearing. Accordingly, it was held that the Commission had the power to prohibit, at least during the hearing itself, the disclosure of information obtained at the hearing. However, the order at issue in the case, which operated without any limitation as to time, was not seen to be reasonably necessary to achieve the secrecy of the hearing and was beyond the Commission’s power. Beaumont and Einfield JJ stated:[42]
[I]n order to conduct a hearing properly, it is necessary that the Commission have the power to prohibit, at least during the hearing itself, the disclosure of information obtained at the hearing. Publication of that material before the conclusion of the hearing could prejudice the effective conduct of the hearing. It follows, in our opinion, that it is proper to imply in the Act a power in the Commission to prevent or restrict the premature publication of evidence given at the hearing; or to put the matter positively rather than negatively, the Commission had the power, by necessary implication, to take all reasonable steps which were necessary to secure a “private”, rather than “public”, hearing.
[62] In Constantine v Trade Practices Commission, Jenkinson J applied the reasoning in Bankers Trust to hold that if the Trade Practices Commission so directed, the applicant was to abstain, for a certain time, from disclosing information acquired by him and the evidence given by him during his examination pursuant to the notice. Jenkinson J said that requiring exercise of the investigative powers of the Trade Practices Commission in public was likely to hamper the effectiveness of the investigation and harm the interests of both witnesses and suspects.[43]
[63] In the decision of Gangemi v Australian Securities Investment Commission it was later stated that it was of the essence that an examination in aid of an investigation should be able to be kept confidential pending the completion of the investigation and that the inspector conducting the examination was able to give directions accordingly. However, it was noted that it was desirable that the matter was put beyond doubt by the enactment of an express power with express sanctions for breach of directions given.[44]
[64] We also accept the Commission’s submission that the Canadian cases we discuss in the next section[45] also support its position.
Bill of Rights
[65] We accept that any power to impose suppression orders is a prima facie breach of s 14 of the Bill of Rights.[46] This means that the six step process in R v Hansen must be followed:[47]
(a) Ascertain Parliament’s intended meaning.
(b) Ascertain whether that meaning is apparently inconsistent with a relevant right or freedom.
(c) If apparent inconsistency is found at step two, ascertain whether that inconsistency is nevertheless a justified limit in terms of s 5.
(d) If the inconsistency is a justified limit, the apparent inconsistency at step two is legitimised and Parliament’s intended meaning prevails.
(e) If Parliament’s intended meaning represents an unjustified limit under s 5, the Court must examine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted.
(f) If it is not reasonably possible to find a consistent or less inconsistent meaning, s 4 mandates that Parliament’s intended meaning be adopted.
[66] We have already undertaken the first two steps. We now need to undertake the third step. When applying that step, the Supreme Court used[48] the test established by the Supreme Court of Canada in R v Oakes.[49] Tipping J summarised the Oakes test as follows:[50]
(a) does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom?
(b) (i) is the limiting measure rationally connected with its purpose?
(ii) does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose?
(iii) is the limit in due proportion to the importance of the objective?
[67] The right to freedom of expression[51] is often said to be one of the most important rights.[52] It is, however, one that may well be the most often legitimately curtailed. Such restrictions are often temporal and locality driven: for example restrictions on speaking during Council meetings.[53] Sometimes restrictions can be permanent.[54] It is, however, to be noted that certain types of speech are more protected than others.[55]
[68] In this case, it is accepted that impairment of the right to freedom of expression through the imposition of s 100 orders is a reasonable limit that can be demonstrably justified in a free and democratic society in circumstances where the object of the order is to protect confidential information. However, what is at issue is the Commission’s objective in this case: broadly to protect the integrity of its investigations. As subsets of this objective, the Commission points to the need to safeguard the flow of information under its leniency programme, the aim of encouraging full and frank disclosure and finally the protection against contamination of evidence (whether conscious or unconscious).[56]
[69] We accept the Commission’s submission that it is of significance that the preservation of investigative confidentiality, including lines of inquiry, is a well recognised justification for resisting disclosure by public bodies charged with investigative functions.[57] Section 6(c) of the OIA includes, as a conclusive reason for holding official information, that making available the information would be likely “to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial”. We also accept the Commission’s submission that, in Commissioner of Police v Ombudsmen, this Court identified the balance to be struck under the OIA in holding that, prior to laying charges, there was a general right to withhold information relating to a police investigation.[58]
[70] We agree with the Commission that the suppression power in s 100 is an extension of the OIA[59] but is justifiable on the same principles. It seems to us self-evident that protecting the integrity of an investigation,[60] particularly in the context of cartels,[61] is an important goal that can justify a time limited (ie for the duration of an investigation) curb to freedom of expression.
[71] The more specific goals identified above also seem to us to be ones that can justify limited incursions into freedom of expression rights. The protection of the flow of information from informants has been seen in a number of contexts as justifying measures to protect their identity. For instance, ss 110 and 112 of the Evidence Act 2006 enable judges to grant witness anonymity orders and in R v Williams, this Court noted, in the context of applications for search warrants, that there is a public interest in the protection of police informers.[62] Finally, in Commissioner of Inland Revenue v E R Squibb & Sons (NZ) Ltd,[63] the majority of this Court held that the Commissioner of Inland Revenue was right to resist disclosure through the court processes of the identity of an informant.
[72] It seems to us that the aims of promoting full and frank disclosure[64] and protecting against contamination of evidence can also justify temporary incursion into the right to freedom of expression.[65] In this regard, the unconscious tainting of evidence[66] can often be as damaging to the search for truth as collusion. Research has shown that, when two people discuss their memory of an event, what one says can contaminate the other’s memory.[67] Research has also shown that it is possible to induce major memory errors and create wholly false memories.[68] Preventing witnesses from discussing their evidence with others will aid in protecting against the contamination of evidence.
[73] We have already mentioned some measures the police and SFO take to ensure the integrity of evidence.[69] It is also standard practice when evidence has been given in court to exclude witnesses who are to give evidence later. This is so that their evidence is not tainted (either consciously or unconsciously) by the evidence of the witnesses who give evidence before them. Such measures are never specifically analysed in terms of a formal Bill of Rights analysis because it is self-evident that preventing the giving of tainted evidence (whether consciously or unconsciously) must be a proper goal in any court process. This clearly outweighs any temporary interference with the right to freedom of expression.[70]
[74] In terms of the other limbs of the Oakes test, there is a rational connection between s 100 orders and the protection of the integrity of the Commission’s investigation. Further, the importance in a free and democratic society of ensuring the integrity of investigations where they relate to serious misconduct is clear. The temporary impairment to the right of freedom of expression that s 100 orders impose is clearly proportionate to the objective of ensuring the integrity of investigations.
[75] As to whether the measure impairs the right no more than necessary to achieve the objective, much was made in submissions of other measures that could be taken to avoid, for example, contamination of evidence and we were also referred to the penalties for (criminal) collusion. While we accept this is the case, the mere existence of other measures or sanctions does not in itself render a provision unnecessary (although it may render the application of it in any particular case unnecessary). Moreover, most of the measures discussed do not assist with the issue of unconscious contamination of evidence.[71]
[76] Further, it is quite clear that any impairment of the right of freedom of expression is temporary. Section 100(2)(b) mandates that an order must cease to have effect upon the conclusion of an investigation. Thus, while an order of unlimited duration[72] would likely impair the s 14 right more than would be necessary to achieve the objective, the same cannot be said of a s 100 order which is of limited duration.
[77] It was also submitted that every exercise of the s 100 power has to be subjected to a Bill of Rights analysis.[73] We do not accept this submission. The Hansen analysis has justified the existence of s 100 and there is no need to repeat the exercise. However, as we note above, any exercise of the power to make or continue s 100 orders is a serious step and the Commission must, before issuing a s 100 order, take into account and weigh all relevant factors in the context of the particular investigation.[74]
[78] We accept the Commission’s submission that Canadian case law supports the conclusion that the Commission’s power to require suppression orders under s 100 is a reasonable limit that can be demonstrably justified in a free and democratic society.[75]
[79] We were referred in particular to two decisions of the British Columbian Court of Appeal in Smolensky v British Columbia (Securities Commission)[76] and Shapray v British Columbia (Securities Commission).[77] In Smolensky, the provision in issue[78] prevented, apart from where consent had been given, disclosure of any information or evidence obtained or sought to be obtained or the name of any witness examined or sought to be examined by the British Columbian Securities Commission in the course of its investigations. The majority of the Court of Appeal in Smolensky noted that the constitutional validity of the provision hinged upon whether its ambit of protection of privacy was consistent with fair hearing and free expression obligations provided under the Canadian Charter of Rights and Freedoms. In turn, that issue was seen to depend on how the Commission limited the application of the provision through the consent mechanism provided within the section. However, it was held by the majority that there was an insufficient factual foundation to determine the constitutional validity of the provision, as it was not clear how the Commission was to define the limits of the provision.[79]
[80] By contrast, Lambart JA was of the opinion that the Court had sufficient factual information to examine the validity of the provision. Lambart JA considered that the prevention of collusion between witnesses and the preservation of the integrity of the markets by avoiding unfounded rumours were both pressing and substantial objectives. However, while he stated that the provision was rationally connected with the objectives, it could not be seen as a minimal impairment to the freedom of expression right, as it provided a complete bar to the preparation of a case refuting the Commission’s allegations.[80]
[81] Lambart JA also said that, while the prevention of collusion among potential witnesses was no doubt a worthwhile purpose in furtherance of the investigation powers of the Commission, it should be possible to arrange for all the interviews to be conducted within a short time compass and then to lift the communication ban and allow free communication with the persons interviewed.[81]
[82] Lambart JA was of the opinion that a set of policy directives could be formulated that would make it clear that only a minimal impairment of the freedom of expression right was to occur under the provision. However, he emphasised that no such policy directive had been promulgated. Thus, he held that, while the impairment of the right had not been minimal, minimal impairment could in fact be achieved. [82]
[83] In Shapray, it was held that there was a sufficient evidentiary foundation for the Court of Appeal to consider the constitutional validity of the provision. The Court noted that the provision contained a limit imposed by the law on free expression that was drafted in very general terms and was liable to continue forever. Furthermore, it was emphasised that it provided no guidance as to when the Commission could grant consent for disclosure. While it was accepted that a prohibition on disclosure would be acceptable in many cases in which the Commission staff were carrying out investigations, the Court was not persuaded that the blanket provision could be said to fall within the “range of reasonable alternatives that minimally impair free expression.”[83] In this context, the Court noted that, as the provision was enacted before the Charter came into effect, the legislature had not had the opportunity to consider less intrusive alternatives such as that in force in the Province of Quebec. The Quebec provision provided:[84]
The Authority may forbid a person to disclose any information relating to an investigation to anyone but his advocate.
[84] The Court delayed the effect of its judgment by a year to allow the legislature to consider how to achieve the important objectives underlying the provision in a way that is constitutionally justifiable and consistent with the important purposes of the Act.[85]
[85] The recognition in Shapray that prohibition on disclosure would be acceptable in many cases where the Commission staff were carrying out investigations and the Court’s indication that the Quebec provision provided a “less intrusive alternative” to the provision at issue illustrates that temporary orders can be justifiable when used to protect an investigation of a regulatory body.
Can the s 100 notices cover questions posed?
Andrews J’s judgment
[86] Andrews J concluded that, on the plain words of s 100, the power to prohibit disclosure would not extend to any information given by the Commission. It was reasoned that, if Parliament had intended to prevent an employer from being able to infer what an employee told the Commission (through the employee communicating to the employer what questions had been asked), s 100 would have been framed so as to provide express prohibition for information going both ways.[86]
The Commission’s submissions
[87] The Commission submits that, irrespective of what type of information may be protected, Andrews J’s finding that s 100 orders protect the answers given by a witness but not the questions, involves an impossible limitation that deprives the section of its intended effect. The questions and answers need to be considered together for the evidential value of the exchanges to be identified. The questions will also often involve putting confidential information from third parties to the witnesses. In the Commission’s submission, the questions must be protected if the “evidence” is protected.
Air NZ’s submissions[87]
[88] In Air NZ’s submission, a power to suppress the questions asked is not consistent with the ordinary meaning of the words of the s 100, under which the confidentiality attaches to information communicated to the Commission. It does not extend to communications by the Commission to other persons, including questions asked, or other information communicated, by the Commission on their own.
Our assessment
[89] We accept that s 100 does not explicitly protect information provided by the Commission (except to the extent that the information provided has in turn been provided to the Commission and is thus potentially subject to s 100).
[90] However, s 100 orders can be made to suppress evidence given to the Commission. Questions posed become part of the evidence given if accepted or adopted by the interviewee. Questions, as the Commission points out, can also involve putting evidence obtained from one person to another. That evidence in turn could be subject to a s 100 order. Questions are in any event essential to understanding the answers given (even where the substance of those questions is not adopted by the interviewee). We thus consider that the term evidence, as used in s 100, includes both questions and answers. Accordingly, we reject Air NZ’s submissions[88] and Andrews J’s reasoning[89] on this point.
[91] This Court has in another context come to a similar conclusion. In R v Barlien, it was held, in the criminal context, that both the allegations that had been put to the accused and the accused’s response to what had been put to him were admissible. This was on the basis that the accused’s response was inherently linked to the allegations that had been put to him.[90]
[92] We note that the s 100 orders in this case covered the whole of the interviews. The interviews we have been shown contained much that was trivial. In a pragmatic sense we can understand that it is easier to make a blanket suppression order covering the whole of the interview. This is not necessarily an erroneous approach as practicalities are a legitimate consideration. However, the Commission should consider when making an order whether the s 100 order can and should be made on a more limited basis.
Can s 100 orders survive the issuing of proceedings?
Andrews J’s judgment
[93] The Judge considered that the relevant function in the present case, “taking proceedings in Court,” was achieved when the air cargo proceeding was issued against Air NZ and the second respondents.[91] The Judge considered that it follows that the Commission’s investigation must have concluded when the proceeding was issued, and thus the s 100 orders must cease to have effect from that time. The Judge also accepted Air NZ’s submission that, if the s 100 orders could continue in effect after the air cargo proceeding was issued, there would be a tension between the orders and the express exclusion of privilege in s 106(8) of the Act. She also concluded that s 98G does not assist the Commission because s 98G makes no reference to s 100.
[94] Turning to the question of s 27(3) of the Bill of Rights, Andrews J held that the Commission’s decision not to discharge the s 100 orders was an act done by the Commission as part of the executive branch of the Government of New Zealand in the performance of the Commission’s power conferred by or pursuant to law.[92] Further, she was satisfied that the air cargo proceeding was not excluded from s 27(3) of the Bill of Rights on the grounds that it was not a civil proceeding. Andrews J concluded that the continuation of the s 100 orders was in breach of s 27(3) because they allowed the Commission to enjoy a significant advantage over Air NZ and the respondents which would not be available to an ordinary litigant.[93]
[95] Andrews J also considered that there was nothing in the evidence to suggest that the investigation of Air NZ’s executives was continuing. It was found that continuation of the orders was unreasonable and an abuse of process.[94] As these are essentially factual findings, however, we make no comment on them.[95]
The Commission’s submissions
[96] In the Commission’s submission, the Judge was wrong to find that the filing of proceedings deemed the Commission’s investigations to conclude[96] so that the orders automatically lapsed. Proceedings are often filed purely to avoid limitation issues, and investigations will frequently be continuing beyond the filing of the first set of proceedings as they were in the present case (where further proceedings against another Air NZ employee were subsequently filed).[97]
[97] The Commission submits that the finding that s 27(3) of the Bill of Rights was infringed is also wrong. Section 27(3) does not apply to the Commission because the Commission is not “the Crown” as it is not part of the Executive Government. In any event, s 27(3) is not infringed as the s 100 orders only protect the evidence received in the enquiries by the Commission, and do not relate to the conduct of the subsequent litigation. To the extent that there is any resulting unfairness in these proceedings, the High Court has power to vary any s 100 orders.
[98] In the Commission’s submission, s 27(3) is not applicable in any event. The essential nature of the right set out in s 27(3) is as set out in the White Paper as follows:[98]
10.176 This provision, which again does not correspond closely with any provision of the Canadian Charter or the International Covenant, is designed to give constitutional status to the core principle recognised in the Crown Proceedings Act 1950; that the individual should be able to bring legal proceedings against the Government, and more generally to engage in civil litigation with it, without the government enjoying any procedural or jurisdictional privileges. This is central to the rule of law.
Air NZ’s submissions
[99] Even if the orders were valid when made, it is Air NZ’s submission that they lapsed under s 100(2)(b) of the Act when the Commission placed the matter within the jurisdiction of the Court by filing proceedings. Further, Air NZ says that the Commission’s evidence does not demonstrate that its investigation was continuing. The fact that the Commission may have wished to make further inquiries after filing proceedings, or to add a further defendant to the proceedings, does not alter the position.[99]
Second respondents’ submissions
[100] The second respondents say that the purported continuation of the s 100 orders after the issuing of proceedings was without power. They say that the Commission’s implied power to investigate ceases when the Commission commences proceedings and therefore so should the s 100 orders.
[101] In the second respondents’ submission, s 98 supports this interpretation. By implication, it only applies to matters that are not the subject of any proceedings issued. In any event s 98G does not refer to s 100.
[102] It is also submitted that, if continuation of the orders was allowed, there would be a conflict between s 100 and subs 106(7) and (8) of the Act, the latter subsections specifically allowing a “Court or any other person” to require disclosure where the Commission is a party to a proceeding.
Intervener’s submissions
[103] The Attorney-General’s position in relation to s 27(3) is that s 27(3) does not require agencies to divest themselves of otherwise valid statutory powers and responsibilities simply because they become engaged in civil proceedings. If it is established that the s 100 orders were lawfully made, and that the Act otherwise permits their extension beyond the issue of proceedings, then s 27(3) does not by itself require the orders to be discharged or render them unlawful. However, once proceedings have been issued, the importance of ensuring a fair hearing will be a significant factor relevant to the scope and ongoing exercise of the Commission’s powers under s 100.
[104] Three decisions of the High Court have considered the impact of s 27(3) on information gathering powers of the Commissioner of Inland Revenue.[100] While the judgments differ in some respects, there appears to be no dispute with the basic principle set out by Simon France J in Vinelight Nominees Ltd v Commissioner of Inland Revenue:[101]
I reject any suggestion that there is some absolute bar, and accordingly it would not be correct to say that s 17 must generally be read down so that the power is not available when the intended subject matter of the Notices is also the subject of concurrent proceedings ...
[105] It is submitted by the Attorney-General that the White Paper is clear that s 27(3) is not intended to divest the State litigant from “rights, powers and responsibilities” even though these may affect the result of litigation. Section 27(3) does not require symmetry, but rather the avoidance of special privileges for the purpose of obtaining an advantage in litigation.
[106] The Attorney-General wishes to reserve his position on whether the Commission falls within s 3(b) of the Bill of Rights, as implicitly accepted by this Court in Queen Street Backpackers Ltd v Commerce Commission,[102] or under s 3(a), as held by Andrews J in the decision under appeal.[103]
Our assessment
[107] We accept the Commission’s and the Attorney-General’s submission[104] that an investigation may be continuing once proceedings are issued. Whether an investigation is continuing is a question of fact. There is nothing in the section to limit the scope of an investigation to that part of an investigation that precedes the filing of proceedings.
[108] Any exercise of the s 100 powers or the continuation of s 100 orders must of course still be for proper purposes within the Act.[105] In this context that means for a proper investigative purpose, rather than one designed to gain an advantage in the litigation. In our view, there is also nothing to stop the Commission from reopening investigations if new information is received (even after litigation has commenced). This investigatory power can extend to matters which are the subject of the proceedings and, contrary to the second respondents’ submission,[106] is not limited to matters other than those which are before the Court.
[109] As we noted earlier,[107] however, there is a difference between having a power and exercising it. The fact that litigation has commenced or is about to commence is a major change of circumstances. Any existing s 100 orders should be reconsidered if proceedings are issued. The s 100 orders are also, after litigation has commenced, subject to the supervisory jurisdiction of the Court.[108] Once proceedings are filed, the High Court has an inherent jurisdiction to discharge or alter any orders made by the Commission, and will do so to the extent to which that is required for the fair conduct of those proceedings.
[110] We accept the Commission’s submission that s 98G of the Act contemplates the potential continuation of the investigative functions notwithstanding the filing of proceedings.[109] Unlike the Judge[110] we do not consider it of significance that s 100 is not explicitly mentioned. We accept the Commission’s submission that the sections that are explicitly mentioned, ss 98 to 98F, contain the Commission’s coercive investigative powers (such as the powers of search and seizure, and of summonsing a witness to give evidence). Ancillary provisions, such as s 100, or s 106, still operate. Further, s 100 is a broad power that is not only available when coercive powers are exercised, but applies in all situations where the Commission receives evidence and other information, including where that is confidential. It makes no sense for orders relating to confidential information to cease immediately on the filing of proceedings. The filing of proceedings in itself does not change the character of the evidence or information.
[111] We also accept the Commission’s submission that subss 106(7) and (8) do not provide a legislative clue to the meaning of s 100(2)(b). Subsections 106(7) and (8) are directed to preventing the Commission’s employees from being compelled to give evidence, recognising an exception when the Commission is a party to the relevant proceedings. We accept the Commission’s submission that this has no relevance to the meaning of s 100(2)(b).
[112] It follows from the above discussion that we reject Air NZ’s and the second respondents’ submissions on this issue.[111]
Section 27(3) of the Bill of Rights
[113] It is not necessary for the purposes of this appeal to decide definitively if the Commission comes within subss 3(a) or (b) of the Bill of Rights, although we are inclined to the view that it comes within s 3(b).[112]
[114] As to s 27(3), it was noted in the White Paper that the underlying aim of s 27(3) of the Bill of Rights is that the Crown is not to enjoy any procedural or jurisdictional privileges in litigation.[113] Contrary to the findings of Andrews J,[114] fulfilment of this objective does not require that a State litigant is to refrain from exercising its statutory powers related to s 100 once proceedings have been issued, although any such powers will be exercised with restraint[115] and be subject to the supervisory jurisdiction of the Court.[116] As noted above, the Commission must keep the imposition of s 100 orders under review[117] and the High Court has the power to vary any s 100 orders that may result in any unfairness in the proceedings.[118]
Summary of conclusions
[115] We conclude that, contrary to Air NZ’s submissions,[119] s 100 is not limited to the protection of confidential information. The only limit in s 100 is that any orders must be made for purposes related to the functions of the Commission under the Act.[120]
[116] Nevertheless, as we noted above, there is a difference between having a wide power and exercising that power. Before any exercise of the wide powers in s 100, the Commission must be satisfied that the order is necessary in the context of the particular investigation and the orders must be kept under review.[121]
[117] We also conclude that the powers contained in s 100 are justifiable in terms of s 5 of the Bill of Rights.[122]
[118] In addition, we conclude that s 100 orders can legitimately include questions as well as answers[123] and that they can survive the issuing of proceedings, provided an investigation is still continuing.[124]
Result and costs
[119] The appeal is allowed and the declarations made by the High Court as set out at [16] (a), (b) and (d) above are set aside.
[120] We do not deal with (or make any comment on) the declaration set out at [16] (c), as that declaration deals with factual matters which [125] moot. 125 We see no need to disturb the orders set out at [16] (f) and (g) but reserve leave to apply if the parties disagree.
[121] The cross-appeal is dismissed.
[122] The respondents must pay the appellant’s costs for a standard appeal on a band A basis plus usual disbursements. We certify for two counsel.
[123] As to the order set out at [16] (e), costs in the High Court can be dealt with in that Court in light of this judgment.
Suppression orders
[124] Hugh Williams J, in a minute dated 14 July 2009, restricted public access to the affidavit of Mr Peddie, sworn on 22 June 2009 in support of the Commission, without leave of a High Court Judge.
[125] On 17 September 2009 Potter J extended the orders made by Hugh Williams J to include all the affidavits filed, submissions filed by the parties, the bundle of documents and the judgment of Andrews J when delivered. She made an order that no such document or documents may be made publicly available until further order of a High Court Judge.
[126] No suppression orders have been sought in this Court with regard to this Court’s judgment. The High Court suppression orders, however, remain in force until set aside by that Court.
Solicitors:
Commerce Commission, Wellington for Appellant
Bell Gully, Auckland for
First Respondent and Cross-Appellant
Wilson Harle, Auckland for Second
Respondents
Crown Law Office, Wellington for Intervener
[1] Commerce Commission v Air
New Zealand HC Auckland CIV-2008-404-8352, 21 October
2009.
[2] At
[37].
[3] At [60].
[4] Discussed at [30]–[85]
below.
[5] Discussed at [86]–[92]
below.
[6] Discussed at [93]–[114]
below.
[7] At [8]–[15]
below.
[8] At [16]
below.
[9] At [17]–[19]
below.
[10] At [20]–[29] below.
[11] The Commission has subsequently said that the failure to make such orders at the final three interviews was a mistake.
[12] The Commission has subsequently joined a further Air NZ employee, Salvatore Sanfillippo, as the seventh defendant.
[13] In her judgment at [103],
Andrews J stated that she quashed the s 100 orders that were still in
effect.
[14] At
[69].
[15] At
[103].
[16] Commerce Act 1986, s
99(1).
[17] The second
respondents adopted Air NZ’s submissions on this
issue.
[18] R v Oakes
[1986] 1 SCR 103 at [69]–[71].
[19] R v Hansen [2007]
NZSC 7, [2007] 3 NZLR 1 at [42] per Elias CJ; at [64] per Blanchard J; at
[103]–[104] per Tipping J; at [203]–[205] per McGrath J; at
[269]–[272]
per Anderson J (though with some modification to the first
limb of the test).
[20] See
submissions summarised at [12] and [33]
above.
[21] See submissions
summarised at [31] (Air NZ) and [34] (the Commission)
above.
[22] See at [31] (Air NZ)
above.
[23] See submissions
summarised at [31] (Air NZ) and [35] (the Commission)
above.
[24] See submissions
summarised at [31] (Air NZ) and [34] (the Commission) above.
[25] See submissions summarised
at [31] (Air NZ), [34] (the Commission) and [39]–[42] (Attorney-General)
above.
[26] Set out at [30]
above.
[27] See at [12]
above.
[28] See at [30] above.
[29] Note: it does not actually
appear to have done so in two of the interviews we were shown. See at [12]
above.
[30] (3 December 1985)
468 NZPD 8589–8590; (10 February 1987) 477 NZPD 6902–6904.
[31] Ian Eagles, Michael Taggart
and Grant Liddell (eds) Freedom of Information in New Zealand (Oxford
University Press, Auckland, 1992) at 515.
[32] Introduced by the Official
Information Amendment Act
1987.
[33] As noted at [52] above.
[34] Commerce Commission
“Submission to Justice and Law Reform Select Committee on the proposed
amendment to section 100 of the
Commerce Act
1986”.
[35] See at [31] above.
[36] For instance, under
s 52P of the Act, the Commission has the power to make determinations
specifying how relevant forms of regulation
apply to suppliers of regulated
goods or services, under s 58 the Commission has the power to grant
authorisation for restrictive
trade practices, and under s 66 the
Commission may give clearances for business
acquisitions.
[37] See
submission at [34] above.
[38] National Companies &
Securities Commission v Bankers Trust Australia Ltd [1989] FCA 530; (1989) 91 ALR 321 (FCA)
at 336.
[39] Constantine v
Trade Practices Commission [1994] FCA 889; (1994) 120 ALR 341 (FCA) at 349.
[40] Gangemi v Australian
Securities Investment Commission [2003] FCA 494; (2002) 45 ACSR 383 at [33]–[35].
[41] National Companies &
Securities Commission v Bankers Trust Australia
Ltd.
[42] At
336.
[43] Constantine v Trade
Practices Commission at 340.
[44] Gangemi v Australian
Securities Investment Commission at
[33]–[35].
[45] See at [78]–[85]
below.
[46] See Air NZ’s
submission at [31] above and the
Intervener’s submission at [39]
above.
[47] R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [92] per Tipping J; at [59] per Blanchard J. In this paragraph Blanchard J did not explicitly refer to Tipping J’s six step test. He did, however, state that it is only meanings that unjustifiably limit guaranteed rights or freedoms that s 6 requires the Court to discard. See also at [187] per McGrath J. Once again, McGrath J in this paragraph did not explicitly refer to Tipping J’s six step test but discusses the legislative history of the Act and notes that s 5 was included in order that justified limitations would become part of the standard by which the courts would apply the Bill of Rights.
[48] R v Hansen at [42]
per Elias CJ. Elias CJ noted that where s 5 was at issue the test in R v
Oakes was “helpful”; at [64] per Blanchard J (Blanchard J noted
that New Zealand courts have commonly adopted the R v Oakes test); at
[103]–[105] per Tipping J (Tipping J summarised the approach and then at
[105] said that it was helpful and indicated
that he would apply it); at
[203]–[205] per McGrath J (McGrath J stated that the R v Oakes test
was the most workable basis for applying s 5 of the Bill of Rights in cases
involving the criminal law); at [269]–[272]
per Anderson J (though with
some modification to the first limb of the test).
[49] R v Oakes [1986] 1
SCR 103.
[50] R v Hansen
at [104].
[51] This also includes the right to receive information. See discussion in Andrew Butler and Petra Butler (eds) The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington, 2005) at 320.
[52] R v Secretary of State
for the Home Department [1999] UKHL 33; [2000] 2 AC 115 (HL) at 126; Hosking v
Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA) at
[178].
[53] See, for example,
Bright v Police [2009] NZCA 187, [2009] 3 NZLR 132.
[54] For instance, see s 61 of the Human Rights Act 1993 (restricting publication of statements and distribution of written material likely to create racial disharmony); s 3 of the Films, Videos, and Publications Classification Act 1993 (outlining forms of publication that are deemed to be objectionable); Korda Mentha v Siemer HC Auckland CIV 2005-404-1808, 23 December 2008 (grant of permanent injunction to prevent the publication of defamatory statements).
[55] For instance, this Court in Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385 confirmed that the defence of qualified privilege applies to statements which concern the functioning of representative and responsible government that are published on a qualifying occasion.
[56] See the submissions
summarised at [35]–[38] above. There may well be
other legitimate justifications for the imposition of s 100 orders. We deal in
this judgment only with
those that were put forward by the
parties.
[57] See at [35]
above.
[58] Commissioner of
Police v Ombudsmen [1988] NZCA 211; [1988] 1 NZLR 385 (CA) at
397.
[59] The OIA grounds relate
to notifications for the withholding of
information.
[60] See at [36]
above.
[61] See at [37]–[38]
above.
[62] R v Williams
[2007] NZCA 52, [2007] 3 NZLR 207 (CA) at
[221].
[63] Commissioner of
Inland Revenue v E R Squibb & Sons (NZ) Ltd (1992) 14 NZTC 9,146
(CA).
[64] See at [36]
above.
[65] Contrary to the
submissions of Air NZ and the Intervener: see at [31] and [42]
above.
[66] As discussed at [68] above.
[67] The British Psychological Society Research Board Guidelines on Memory and the Law: Recommendations from the Scientific Study of Human Memory (Revised April 2010) at 29.
[68] Ibid, at 11. See also
Matthew Gerrie, Maryanne Garry and Elizabeth Loftus “False Memories”
in N Brewer and K Williams
(eds) Psychology and Law (The
Guilford Press, New York, 2005) at
222–253.
[69] See at [59]
above.
[70] Which, as we have
noted, includes the right to receive information as well as the right to give
it.
[71] See discussion at [72]
above.
[72] See discussion of
Canadian cases at [78]–[85]
below.
[73] See at [41]
above.
[74] See at [46]
above.
[75] See at [34]
above.
[76] Smolensky v
British Columbia (Securities Commission) [2004] 236 DLR (4th) 262
(BCCA).
[77]
Shapray v British Columbia (Securities Commission) [2009] 308 DLR
(4th) 704 (BCCA).
[78] Securities Act
RSBC 1996 c 418, s 148.
[79]
Smolensky at [26].
[80]
At [65].
[81] At
[69].
[82] At [71].
[83] Shapray at [59]. The British Columbian provision was duly changed. The provision (s 148) now allows orders to be made for the duration of the investigation prohibiting a person from disclosing to any person the existence of the investigation, the inquiries made by persons appointed under s 142, or the name of any witness examined or sought to be examined in the course of the investigation.
[84] Securities Act RSQ 1982 c
V-1.1, s 245. See Shapray at [10] and [59]. The Court had noted at [10]
that the Quebec provision created a ‘default’ position that
permitted disclosure
unless the Quebec authority ordered otherwise, which was
seen to be the opposite of the ‘default’ provision under s
148.
[85] At
[60].
[86] At [37]–[38] of
her judgment.
[87] The second
respondents adopt Air NZ’s submissions on this
point.
[88] Set out at [88]
above.
[89] See at [86]
above.
[90] R v Barlien
[2008] NZCA 180, [2009] 1 NZLR 170 at
[60].
[91] At [60] of her
judgment.
[92] At [96] and
[97].
[93] At
[101].
[94] At
[88].
[95] See at [19]
above.
[96] Under s 100(2)(b) of
the Commerce Act 1986.
[97] We make no comment on the Commission’s assertion that the investigation was continuing as it is a factual finding which is now moot. See at [19] above.
[98] Geoffrey Palmer “A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6 at 111.
[99] As noted at [19] above, as the appeal is now in a sense moot, we make no comment on the factual findings.
[100] Vinelight Nominees
Ltd v Commissioner of Inland Revenue (2005) 22 NZTC 19,298 (HC);
Chesterfield Preschools Ltd v Commissioner of Inland Revenue [2005] NZHC 37; (2005) 22
NZTC 19,500 (HC); and Mason v Commissioner of Inland Revenue [2006] NZHC 70; (2006) 22
NZTC 19,775 (HC).
[101]
Vinelight at
[55].
[102] Queen Street
Backpackers Ltd v Commerce Commission [1994] NZCA 72; (1996) 2 HRNZ 94 (CA) at
97.
[103] At [96] of her
judgment.
[104] See at [96] and [103]–[104]
above.
[105] And comply with
the requirements set out in [46]
above.
[106] See at [101]
above.
[107] See at [46] above.
[108] Brierley Investments
Ltd v Lion Corporation [1987] 1 NZLR 600 (CA). It was stated at 602 that it
is common ground that in review or appeal proceedings the High Court has power
to authorise disclosure,
but it is no less common ground that the High Court has
a discretion which arises in its inherent
jurisdiction.
[109] See at [96]
above.
[110] See at [93]
above.
[111] See at [99] above. See also [100]–[102] above.
[112] See Queen Street
Backpackers at 98. The Court did not, however, explicitly deal with the
point. Rather it made reference to the submission that the Commission
was
performing a public function in terms of s 3(b) of the Bill of
Rights.
[113] See passage
quoted at [98]
above.
[114] See at [94]
above.
[115] See at [103]
above.
[116] See at [109]
above.
[117] See at [46]
above.
[118] See at [109]
above.
[119] See at [30]
above.
[120] See at [45]
above.
[121] See at [46]
above.
[122] See at [65]–[77]
above.
[123] See at [89]–[92]
above.
[124] See at [107]–[114] above.
[125] See at [19] above. For the avoidance of doubt, the Commission accepts that the s 100 orders are no longer in force and does not seek to reimpose them. This judgment does not reinstate the orders, particularly as we leave the declaration set out at [16] (c) in place.
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