Setting the scene
When might national security information be used in proceedings?
1.17To fall within the scope of this review, the national security information must be used in a way that directly affects an individual’s rights or obligations such that we might ordinarily expect the information to be provided to the person concerned. There are three main areas of relevance to this project: criminal proceedings; administrative decisions taken by Ministers and public officials; and civil proceedings (including judicial review and proceedings before tribunals). It is important for us to stress that this review is not concerned with the use and protection of national security information in other contexts such as the negotiation of international agreements or overseas defence deployments.
1.18As is discussed in Chapter 3, national security information may form part of background investigations that lead to criminal proceedings but will not necessarily be disclosed to the defence or introduced as evidence.
1.19To be disclosed, information must be relevant to proceedings. Information will be relevant if it supports or rebuts or has a material bearing on the case against the defendant. If information is relevant but disclosure would prejudice national security, the prosecutor may withhold it under section 16(g) of the Criminal Disclosure Act 2008. If the national security information is able to clear the defendant from blame or even point to a doubt, yet the prosecution seeks to have the information withheld, the position is more difficult. Under section 30(1)(b) of the Criminal Disclosure Act 2008, the court can order information be disclosed where the interests in favour of disclosure outweigh the reasons for withholding.
1.20The Evidence Act 2006 contains provisions that enable the prosecution to use evidence while partially limiting disclosure to the defendant. However, this is subject to the requirement to ensure a defendant has a fair trial.
1.21National security information may of course also be relevant to administrative decisions in respect of a person’s rights, obligations or interests. New Zealand law provides for information of this nature to be relied upon when making certain decisions under the Immigration Act 2009, the Passports Act 1992, the Customs and Excise Act 1996, the Terrorism Suppression Act 2002 and the Telecommunications (Interception Capability and Security) Act 2013. Given the nature of these decisions, reaching a properly informed decision may require taking into account national security information that cannot be disclosed to the person affected (for example, if an individual is refused a visitor visa because of concerns that they have been involved in terrorist activities).
1.22Alternatively, as with criminal proceedings, national security information may also be used to spark an investigation that gathers other information that does not raise disclosure concerns. The national security information may therefore be useful even if it is not provided to or taken into account by the decision maker.
1.23There is also the possibility in administrative proceedings that national security information may be helpful to the affected person. For example, in a claim for refugee status based on political persecution, it is possible that national security information available to the decision maker could also support the applicant’s claim.
1.24There are some general principles relating to public access to information to be kept in mind. The Privacy Act 1993 provides that individuals are entitled to have access to personal information held by government agencies, although disclosure may be refused if to do so would be likely to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence or prejudice the security or defence of New Zealand. The Official Information Act 1982 can be used by individuals to access information relevant to their case (though not personal to them), though similar grounds for non-disclosure are contained in that Act also. Where administrative decisions fall within the scope of the New Zealand Bill of Rights Act 1990, the natural justice protections captured under section 27 may also require a certain level of disclosure.
1.25Ministers and public officials might rely on national security information when making decisions that affect people’s rights. The Immigration Act 2009 is the best example of legislation in New Zealand that contains a special procedure to be used where national security information is relevant. Where national security information is to be relied on in certain decisions relating to visas, entry permission, refugee and protection status, detention, or deportation; the person subject to the decision must receive a summary of allegations arising from the national security information. If the decision maker has relied on national security information and the decision is prejudicial to the person concerned, reasons must be given and include, among other things, the fact that national security information was relied on and the right to be represented in any appeal by a special advocate.
1.26Where an appeal or review is sought of a decision and national security information is relied upon, the Immigration Act 2009 provides for a closed process in the Immigration and Protection Tribunal or the senior courts. The process authorises the use of special advocates and establishes a procedure by which national security information is summarised and provided to all parties to the case.
1.27Under this process, national security information can only be disclosed to the Immigration and Protection Tribunal, a court or a special advocate. Neither the Tribunal nor any court may require or compel the disclosure of national security information in any proceedings under the Act, even where they consider that the information does not meet the criteria for classification. A summary of the allegations arising from the national security information must be provided to the affected person or the information cannot be used. If proceedings involving national security information go before the Tribunal or a court, the Tribunal or court must approve that summary.
1.28The special advocate must be provided with access to the national security information relied upon, and the special advocate may lodge or commence proceedings on behalf of the affected person and participate in the closed sessions from which the person is excluded. The Immigration Act provisions for decisions and proceedings involving national security material have not yet been used.
Civil claims involving the CrownTop
1.29Proceedings may be brought against the Crown under statute, general civil law and by way of judicial review. The Crown may also bring civil claims, for example a claim against a public servant for breach of confidentiality. The Law Commission previously considered the use of national security information in such proceedings in our review of the Crown Proceedings Act 1950. In that review we considered the role of public interest immunity, which allows the Crown to exclude information from proceedings if necessary to protect national security. The present review provides an opportunity to more fully address this area.
1.30There are very few cases in New Zealand where national security information has been relevant in proceedings involving the Crown. New Zealand has not yet had a case in which the Crown has sought to rely on national security information to rebut or support a civil claim, without making it available to the claimant. Such cases would raise significant issues.
1.31The ability to take a claim against the Crown has developed as a means of holding the Crown accountable. There is concern that this will be circumscribed if the Crown is seeking to rely on evidence without disclosing it in open court, or to exclude evidence that assists the claimant.