Setting the scene
Where to from here?
1.39This review brings into focus the separation of powers and the respective roles of the independent judiciary and the executive. In most cases, an assertion that information cannot be disclosed will originate from the Crown. Traditionally, the courts have afforded considerable deference to a claim by the Crown that disclosure of material will prejudice national interests such as security, defence, and international relations. However, recent trends in favour of open justice and more extensive judicial supervision leave the current position under New Zealand law uncertain.
1.40A range of different procedures have been adopted in other jurisdictions in an attempt to preserve fair trial rights and open justice whilst affording appropriate protection to national interests. The procedures vary in complexity and involve such mechanisms as restricting who may be present at the hearing, the appointment of security-cleared special advocates, judicial examination of the national security information, and processes of summarising the national security information into a form that can be provided to the other parties to the proceedings without disclosing prejudicial material (known as “gisting”).
1.41The questions for this review, on which we seek public submission, can be thought of as revolving around the following key issues:
- The nature of the information - what information can be withheld or otherwise treated differently and when (or in which kind of proceedings).
- The decision maker - who ought to decide what information is treated differently (a judge, a Minister of the Crown, the Attorney-General or the security services).
- The process used - how that information should be treated (withheld, redacted or “gisted” and given to the other party, or referred to a special advocate).
1.42It may be that different processes might be appropriate depending on whether the proceeding is criminal, civil or administrative, the nature of the rights in question, and whether these rights can be adequately protected without giving full access to the affected party.