Appendix B
Terms of reference

The Law Commission will undertake a first principles review of the protection of classified and security sensitive information in the course of criminal, civil and administrative proceedings that determine individuals’ rights, and as appropriate, make recommendations for reform. The review will look at the protection, disclosure, exclusion and use of relevant classified and security sensitive information in such proceedings.

Context of the review

As part of the review the Commission should consider whether legislation is needed to provide a process by which classified and security sensitive information may be disclosed and used in court proceedings (including criminal trials) and administrative proceedings that determine individuals’ rights in a way that protects the information while maintaining principles of fairness and natural justice. There are specific issues around sensitive security information being publically disclosed that the Commission will have to address. The Commission will be considering, among other things, the approaches of other jurisdictions under which security sensitive information can be admitted but not disclosed to private parties or defendants (or only disclosed to a special advocate acting on behalf of such parties). The Law Commission will need to develop a working definition of classified and security sensitive information for the purposes of such processes.

Issues to be consideredTop

The issues to be considered by the Commission will include (but are not limited to):

(a) The law relating to claiming public interest immunity as a ground for not disclosing relevant information in civil proceedings and criminal proceedings and whether the law should be reformed so as to provide specifically for how a claim is determined;

(b) Whether current provisions for withholding classified and security sensitive information in criminal proceedings are sufficient, and if not, how they might be altered consistently with fundamental values that underpin criminal proceedings in New Zealand;

(c) Whether provision should be made for criminal trials in which classified and security sensitive information could be admitted but not disclosed publically or to the defendant (or could only be disclosed to a special advocate acting on the defendant’s behalf) and whether such an approach can be reconciled with a defendant’s fair trial rights;

(d) The implications of such trial processes for the law of evidence and rules of criminal procedure;

(e) Whether New Zealand should make provision for hearings in civil proceedings in which classified and security sensitive information can be admitted but not disclosed publically or to private parties (or could only be disclosed to a special advocate acting on behalf of such parties) and if so what form should these take to ensure a fair hearing consistent with natural justice;

(f) Whether New Zealand’s current measures for admitting classified and security sensitive information in civil and administrative proceedings are effective, how comparative international approaches operate, and what New Zealand can learn from those experiences.

Scope of reviewTop

The issues covered by this review touch on important constitutional matters: the fundamental rights of citizens to open justice and to a fair trial, the respective roles of the judiciary and the executive, protecting national security and principles of open government and democratic accountability.

The Law Commission will conduct its review independently, but it will liaise with the independent reviewers appointed to undertake a review of security and intelligence agencies under section 22 of the Intelligence and Security Committee Act 1996 where there are common issues. Public consultation will be a key component of the Commission’s processes before making any recommendations.

It is not intended that the Commission will make recommendations with respect to any purely operational matters, such as funding or other operational and administrative arrangements to institute an appropriate system for protecting classified and sensitive information in civil and criminal proceedings.