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MSD v L: Fictitious signatures not lawful

26 September 2018

The Chief Executive of the Ministry of Social Development v L [2018] NZHC 2528

Press summary

This summary is provided to assist in the understanding of the Court's judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

The High Court has concluded that it is not lawful for members of Committees, established by legislation to review decisions made by government departments, to use fictitious names and signatures when issuing their decisions. The case concerned Benefit Review Committees' use of fictitious names and signatures when determining applications for review by a person claiming entitlements to certain benefits. The case arose because the Ministry of Social Development became concerned about abusive and threatening communications from the applicant. The Ministry decided to have Committee members use fictitious names and signatures to protect them from possible threats and abuse from the applicant.

The High Court has determined that the practice of using fictitious names and signatures breaches an applicant's right to natural justice under s 27(1) of NZBORA because the applicant cannot challenge the impartiality of a Committee member or their qualifications to sit on a Committee if the true identities of Committee members are suppressed.

The High Court observed that express legislative authority would be necessary for the Ministry to infringe upon the right to natural justice in the way it did. The High Court rejected an argument that the Ministry's obligations under health and safety legislation were sufficient to provide that authority.

The High Court noted that only Parliament could change the law to sanction the practice followed by the Ministry in this case.

In its judgment, the High Court also observed that the circumstances of the case before it were insufficient to warrant the use of fictitious names and signatures, even if that practice were permissible. Those circumstances included that the police had earlier assessed the applicant as being "harmless" and unlikely to carry out her threats and that she had never directed her threats and abuse at Committee members.

Full judgment: 2018NZHC2528_MSDvL.pdf

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