Chapter 1
​Setting the scene

National security information

1.12Several statutes contain provisions that limit the disclosure of information when the disclosure would adversely affect New Zealand’s national interests. We refer to this information as “national security information” for brevity. This issues paper does not seek to exhaustively list the sort of information that might be captured by current provisions limiting disclosure, nor do we consider that it is necessary to create a precise definition of such information at this early stage. Definitions will also differ depending on their purposes. Drawing on existing instruments,2 our focus is on information that, if disclosed, might risk prejudice to:

1.13The fact that disclosure might adversely affect one of these interests will not be the sole determiner of whether information should be withheld. Other compelling interests are at play such as fair trial rights, open justice and the right of citizens to hold government to account through court proceedings. Chapter 2 discusses these interests in more detail and explores why they are so important, and how they are relevant to this project - in particular, the protection of national security as justification for limiting natural justice and fair trial protections.

1.14It is useful to bear in mind the fact that the seriousness of the risk to national security is also relevant. A significant risk rather than the mere existence of a risk may be necessary. This paper explores how significant the risk must be and who decides.

1.15In 2001, Sir Geoffrey Palmer said that human rights and national security protections can be considered as complementary rather than opposing values. In his view, national security comprised:3

… freedom from interference; freedom from terrorist attack, freedom from deliberately incited racial violence, freedom from espionage which itself threatens basic freedoms such as privacy, freedom from the kind of genuinely subversive activity which is aimed – not just in theory but in fact – at destabilising or overthrowing the very democratic system upon which the exercise of civil liberties depends.

1.16The breadth of this statement demonstrates how difficult it can be to define “national security” with any clarity. In addition, it highlights the difficulty of creating a fair process for reconciling the potentially conflicting interests of protecting national security on the one hand and individuals’ rights relating to natural justice on the other. We return to this issue in Chapter 2.

2These include requests for information under the Official Information Act 1982 and the Privacy Act 1993, and proceedings under the Passports Act 1992, Customs and Excise Act 1996, Terrorism Suppression Act 2002, Immigration Act 2009 and Telecommunications (Interception Capability and Security) Act 2013. The transfer of public records to the National Archives under s 21 of the Public Records Act 2005 may be deferred (under s 22) pursuant to a Ministerial certificate if transfer would be likely to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence or prejudice to the security or defence of New Zealand. Information can be excluded from the annual report of certain organisations if the Minister in question believes the information will be likely to prejudice a particular interest including national security interests: see New Zealand Security Intelligence Service Act 1969, s 4J(4); Government Communications Security Bureau Act 2003, s 12(4); and Inspector-General of Intelligence and Security Act 1996, s 27(4).
3Geoffrey Palmer Security and Intelligence Services - Needs and Safeguards (Department of the Prime Minister and Cabinet, May 2001).