Appendix A
Questions for consultation

Chapter 3

Q1 How should national security information be protected when used as grounds for a warrant?
Q2 Should there be a role for special advocates in a pre-trial hearing on disclosure under the Criminal Disclosure Act 2008?
Q3 Do sections 69 and 70 of the Evidence Act 2006 provide sufficient guidance to a trial judge in determining whether to exclude national security information?
Q4 Should undercover security agents be able to use the same protections currently available to undercover Police officers, and give evidence anonymously?
Q5 Does the Evidence Act 2006 provide sound mechanisms for national security information to be used in a criminal trial in a controlled way that protects against risks associated with full disclosure, while still allowing for it to be properly tested, given the primacy that should be afforded to fair trial rights?
Q6 Do the current provisions allowing suppression orders provide for proper balancing of national security interests on the one hand and open justice interests on the other?
Q7 Is there a need to make explicit the expectation that criminal proceedings will be discontinued if there is no other way to protect national security evidence and avoid prejudice to the accused, for example, through giving the judge the power to order that proceedings be dismissed rather than information disclosed?
Q8 Are any further mechanisms, or any expansion of existing mechanisms, needed to enable national security information to be used as evidence in criminal trials, including for terrorist acts?

Chapter 4

Q9 Should elements of administrative decision making processes involving national security information be standardised at the initial decision making stage?
Q10 Should there be a single framework that applies to all reviews or appeals of administrative decisions that involve national security information?
Q11 What features should such a single framework provide for? Should it involve special advocates, summaries of national security information or any other mechanisms to help ensure a fair hearing?
Q12 Should courts or tribunals reviewing administrative decisions be able to consider information that has not been disclosed to the parties to the case?

Chapter 5

Q13 Should the courts be able to consider national security information that has not been disclosed to one of the parties to a claim in civil proceedings?
Q14 Should New Zealand adopt a single overarching framework that applies to all civil proceedings?
Q15 What features should such a process have? Should the process use special advocates, security-cleared lawyers, summaries of the national security information, or other mechanisms to ensure the interests of the non-Crown party are represented?

Chapter 6

Q16 What types of security interests should be sufficient to displace the normal assumption that relevant information is disclosed to the affected parties? (In other words, how should we define national security for the purposes of this review?) ​
Q17 Who should decide whether national security information is disclosed to affected parties, withheld or partially released in proceedings? Should it be the courts or the Crown through the Attorney-General or the Prime Minister?
Q18 Would a model under which the court determines whether the Crown’s claim of public interest immunity on the grounds of national security is valid, but the Prime Minister or Attorney-General has a power to ultimately and publicly override the court’s decision be workable for New Zealand?
Q19 Do you think there are benefits in developing an approach under which the affected person’s own lawyer can represent them during closed proceedings (and not a special advocate)? How would this affect the lawyer’s obligations to their client?
Q20 Given the constraints under which they operate, do you think special advocates can adequately ameliorate the unfairness of proceedings when people are denied full disclosure of the case against them?
Q21 Should we have a special advocate regime for civil and administrative proceedings? What are the key features and protections you would want to see built into a legislative special advocate regime?
Q22 Do you consider that there is scope in criminal trials to use special advocates in the preliminary stages of the trial to assist in determining whether information that prejudices national security should be withheld? Do you agree special advocates should not be used in the substantive trial?
Q23 Do you favour a generic legislative approach that establishes one closed proceedings regime with natural justice safeguards that can be applied across all the relevant administrative and civil contexts and (possibly) aspects of criminal proceedings, or should specific regimes be retained and developed?