Chapter 1
​Setting the scene

Introduction

1.1This paper is about the kinds of protections that the Crown can claim over information that might prejudice national security interests if disclosed in criminal, civil, or administrative proceedings. The normal position is that individuals should have available to them the information that forms the basis of decisions that affect their rights. In both civil and criminal court cases, they are entitled to know and to test the evidence on which the Crown relies and that might assist their case. It is also an important value of our legal system that courts operate openly and that the public, as well as the parties, are entitled to know what is happening in them and to know the reasons for decisions reached.

1.2The law currently allows the Crown to restrict evidence it would otherwise be required to make available to a court or tribunal and the other parties to the proceedings where the disclosure of this information might prejudice national security.1 Similarly, in administrative decisions made by Ministers and public officials, the decision maker might possess information that cannot be disclosed. In this review, we consider whether there are some circumstances where the decision maker should be able to take into account information of this sort even where it is not made fully available to the person whose interests are affected.

1.3New Zealand’s geographic isolation does not protect the country from the increasing threat posed by international terrorism. An important role for the New Zealand Government is to work closely with its international allies for the purpose of gathering intelligence about potential terrorist activities both in New Zealand and overseas. This necessitates that the information gathered and the methods by which it is gathered are kept secret. This project considers how withholding information on the grounds of national security may affect the fundamental values of natural justice and open justice, and to what degree (if at all) these values should be limited when there is a threat to New Zealand’s national security. The answers may depend on the kinds of proceedings that are underway, the nature of the decision in question or the rights that are being determined.

1The Criminal Disclosure Act 2008, the law of public interest immunity and the Evidence Act 2006 are discussed further in Chapters 3–5.