Ben Keith

Experience

# Constitutional law

Dotcom v Attorney-General CA195/2019 (lead counsel for Privacy Commissioner as intervener): access rights and withholding grounds under Privacy Act 1993, heard July 2020, reserved.

Minister of Justice v Kim [2020] NZSC 18 (joint counsel for respondent/cross-appellant): restraints on judges sitting while conducting public inquiries

Suveinakama & ors v Ulu o Tokelau & ors [2017] NZHC 3171; [2017] NZHC 3287; [2018] NZHC 1670; [2018] NZHC 3339 (lead counsel for Administrator of Tokelau as defendant) administrative decision-making and civil procedure under Tokelau law

Microsoft v United States (United States Supreme Court 17-02, 2017; with Morgan Coakle LLP) (written amicus brief for New Zealand Privacy Commissioner as intervener) extraterritorial application of search powers/comity

See also human rights law cases; national security cases; and Tiriti o Waitangi matters below.

# Human rights/Bill of Rights Act

Chief Executive of Dept of Corrections v Chisnall [2019] NZHC 3126; [2020] 2 NZLR 110 (HC): first contested application for declaration of inconsistency; lead counsel for successful applicant; appeal and cross-appeal to Court of Appeal to be heard November 2020.

Kim v Minister of Justice [2019] NZCA 209 (joint counsel) [2019] 3 NZLR 17 (CA): challenge to Minister’s decision to permit extradition of New Zealand resident to China at risk of torture and gross trial unfairness, in reliance on assurances; joint counsel for successful appellant; appeal to Supreme Court heard February 2020 – reserved.

Turners & Growers Ltd v Zespri Group Ltd (No 2) (2010) 9 HRNZ 365 (HC): challenge to single grower regime on grounds of freedom of association; lead counsel for Attorney-General as successful defendant

Vaihu v Attorney-General [2007] NZCA 574; (2007) 8 HRNZ 403; [2008] NZAR 83: claim of cruel, inhuman or degrading treatment over police dog bite and serious injury; lead counsel for Attorney-General as successful defendant; also successful opposition to leave to appeal [2008] NZSC 19

Morgan v Superintendent, Rimutaka Prison [2005] 3 NZLR 1; (2005) 21 CRNZ 514; (2005) 21 CRNZ 668; [2005] NZSC 26: challenge by habeas corpus to application of parole legislation as retrospective change in penalty; junior counsel for successful defendant in Supreme Court; lead counsel in High Court/Court of Appeal

Ransfield v Radio Network Ltd [2005] 1 NZLR 233 (HC): damages claim alleging positive obligation to permit participation in radio broadcasts on grounds of freedom of expression: counsel for Attorney-General as successful defendant

Taunoa v Attorney-General [2008] 1 NZLR 429 (SC) human rights standards governing prison adminstration/principles of public law compensation; junior counsel for Attorney-General

P F Sugrue Ltd v Attorney-General [2006] 3 NZLR 464 (PC) statutory search/seizure and limitation under the New Zealand Bill of Rights Act; junior counsel for Attorney-General

Hester v Commissioner of Inland Revenue [2005] 2 NZLR 172 (CA); [2005] 2 NZLR 473 (SC- leave – declined) interpretation of charitable tax exemptions and religious discrimination; junior counsel for Attorney-General

# Judicial review

See cases by subject matter: in particular, Suveinakama (above); A v Minister of Internal Affairs (below); Kim (below); Raukawa (below)

# National security law

Inquiry into Operation Burnham, 2018-2020: appointment as special advisor responsible for securing review and release of previously classified records

A v Minister of Internal Affairs [2018] NZHC 1328; [2018] NZHC 1797; [2018] NZHC 2890 (also several closed judgments; ongoing) court appointment as special advocate in partially closed Passports Act proceeding

Inspector-General of Intelligence and Security, Lawfulness of NZSIS access to data under the Customs and Excise Act 1996 and the Immigration Act 2009^ (2015-2017)

Inspector-General of Intelligence and Security, Legality and propriety of warnings given by the New Zealand Security Intelligence Service^ (2014-2017)

Inspector-General of Intelligence and Security, Inquiry into GCSB's process for determining its foreign intelligence activity^ (2015-2017)

Inspector-General of Intelligence and Security, Inquiry into NZSIS applications for sensitive and complex warrants^ (2014-2016) lawfulness and propriety of statutory warrant applications

Inspector-General of Intelligence and Security, Putting procedural fairness into practice in NZSIS security vetting^ (2016) guide to natural justice obligations in national security context

Inspector-General of Intelligence and Security, Review of NZSIS holding and use of, and access to, information collected for security vetting purposes^ (2015-2017)

Inspector-General of Intelligence and Security, Inquiry into NZSIS release of information^ (2014)

# Private international law

LRR v COL [2020] NZCA 209: appeal from order for return of child under Hague Convention on the Civil Aspects of International Child Abduction; appeal upheld, finding proactive approach required to ensure protection of children from grave risk; lead counsel for successful appellant. Also LRR v COL [2019] NZCA 620 (successful interlocutory application requiring applicant to disclose criminal and other records)

U v Attorney-General [2013] 2 NZLR 115 (CA) (lead counsel for Attorney-General as successful respondent): effect of Hague Convention on Intercountry Adoption on jurisdiction of Family Court

# Public international law

Kim v Minister of Justice of New Zealand [2019] NZCA 209, [2019] 3 NZLR 173: (joint counsel for appellant) appeal against extradition, including under the Convention against Torture and the International Covenant on Civil and Political Rights; joint counsel for successful appellant; appeal to Supreme Court heard February 2020.

Teddy v Police [2015] NZAR 80 (CA) criminal maritime jurisdiction

Taito v New Zealand CCPR1909/2009 (2015) United Nations Human Rights Committee, challenge to adequacy of appeal procedures following R v Taito [2003] 2 NZLR 577 (PC)

Committee on Economic, Social and Cultural Rights, Third Periodic Review of New Zealand, Geneva, May 2012 (delegate and counsel)

Committee on the Rights of the Child, Third/Fourth Periodic Review of New Zealand, Geneva, January 2011 (delegate and counsel)

United Nations Human Rights Committee, Fifth Periodic Review of New Zealand, New York, March 2010 (counsel to Minister of Justice as delegation head)

Omunkete Pty Ltd v Minister of Fisheries/Minister of Foreign Affairs and Trade (High Court, CIV 2008-485-1310) urgent challenge to enforcement against IUU Southern Ocean fishing activity under Convention on the Conservation of Antarctic Marine Living Resources; lead counsel for successful defendants

Fang v Jiang [2007] NZAR 420 (HC) New Zealand precedent case authority on state immunity and extraterritorial jurisdiction; joint counsel for Attorney-General as intervenor

# Public law

General Manager, Auckland Central Remand Prison v Mailley [2009] NZAR 649; (2009) 19 PRNZ 736 (CA) habeas corpus and ancillary powers

Attorney-General v X [2008] 2 NZLR 579 (SC)^ (leave and substantive) confidentiality in refugee proceedings concerning crimes against humanity

Brown v Attorney-General [2006] NZAR 450 (CA) (counsel for Attorney-General) civil name suppression

See cases by specific subject-matter.

# Treaty of Waitangi

Raukawa Settlement Trust v Waitangi Tribunal & ors [2019] NZHC 383; [2019] NZHC 1438 (lead counsel for successful applicant) application for judicial review of Tribunal directions in compulsory resumption application

Matua Rautia: Te Kōhanga Reo National Trust (Waitangi Tribunal, 2011-2012) (lead counsel for Ministry of Education, Education Review Office, Te Puni Kōkiri and others)

Professional Recognition

Professional Activities

Member, New Zealand Law Society Public and Administrative Law Reform Committee

Past co-chair, Australia and New Zealand Society of International Law 2018 Conference; member, Human Rights and Privacy Law Committee, New Zealand Law Society (2009-2013); New Zealand Private International Law Coordination Committee (2004-2014); pWellington District Law Society Library Committee (2001-2007); past Hon Secretary, New Zealand Branch International Law Association (1998-2005)

Publications and Seminars

“International, comparative and foreign law in the New Zealand courts” Legalwise CLE webinar, August 2020; also Crown Law Office continuing education seminar

“Official access to encrypted communications in New Zealand: Not more powers but more principle? ” (2020) Common Law World Review

Workshop: Making good decisions Legalwise CLE, Wellington, March 2020

“Current developments in judicial review” Legalwise CLE, Auckland/Wellington, March 2019

“Miller v New Zealand: Lost in translation?” New Zealand Centre for Public Law, June 2018

“Developments in Public Agencies' Access to Privately Held Data and Data Protection Obligations” Legalwise CLE, Auckland/Wellington, March 2018

“‘Big Data’ & public law: defining lawful search & access in the face of data ubiquity” New Zealand Law Society CLE, Wellington, February 2018

“International law, cyberspace and where to next” invited paper to Beeby Colloquium on International Law, November 2017

“Data ubiquity and the law” invited paper to the New Zealand Crown Law Office, 2017; the Office of the Privacy Commissioner, 2017; New Zealand Judges’ Clerks’ Conference, 2018

“The (more) public life of secret law” lecture to Australian Centre for Military and Security Law, July 2017; also to New Zealand Centre for Public Law, September 2017

“A partly outside job? The potential of transnational legal discourse for disclosure in proceedings involving national security decisions” Accountability for Transnational CounterTerrorism Operations, IACL Research Group on Constitutional Responses to Terrorism conference, Dickson Pool School of Law, Kings College London, March 2016

Qualifications

B.A. (French/German), Victoria University of Wellington, conferred 1995

LL.B. (Hons) (I), Victoria University of Wellington, conferred 1996

General Course and Directed Higher Studies Seminar, Hague Academy of International Law, 2007

Also further studies in international law and legal theory and small group teaching in Australian administrative and constitutional law at the Australian National University, Canberra, Australia, 1997-1998.