Chapter 2
Interests to be taken into account

A rights-based framework for reform

2.41Any proposals for legal reform that arise from this project will be concerned with rights that, in New Zealand, are protected under NZBORA, the common law, and international human rights instruments. We therefore turn to consider a rights-based framework into which any law reform can be placed.

2.42There are two potentially conflicting interests in this project: natural justice rights (as captured in NZBORA and discussed below) and demonstrable justifications for limiting those rights (notably whether provisions for protecting disclosure of national security information would amount to a reasonable limit as per section 5 of NZBORA).

2.43The starting point is that limitations on rights need to be justified and failing to disclose evidence that is relevant in court proceedings or administrative decision making, on the grounds of a threat to national security, must be justified. A culture of justification contributes to “principles of good government, such as transparency, accountability, rational public development, attention to differing interests and so on”.51 Adopting this approach, this paper seeks to frame the debate around the following questions (on which we also seek public feedback):
(a) What should the test be for determining what information is sufficiently prejudicial to national security to justify withholding it, or having it only released into a closed procedure?
(b) Should it be the role of the court or the Crown to decide whether national security information is disclosed to affected parties in proceedings, withheld, or partially released in proceedings?
(c) How to reconcile the use of national security information in court proceedings with protection of natural justice and open justice rights and the extent to which limits on these rights can be justified?

2.44The challenge is to ensure that any rights that are viewed as fundamental are protected in a substantive sense while recognising that at the same time there may be circumstances that allow the procedural protections to be limited in the way envisaged by section 5 of NZBORA. The law reform proposals in this paper therefore seek to ensure that the following aspects of natural justice, which are considered to be fundamental principles, are upheld:

(a) The decision maker should be unbiased in respect of the matter before them.
(b) Decision makers must give those affected by the decision the opportunity to be heard.
2.45These principles are reflected in international human rights obligations and in the constitutional documents of many countries.52 It should be noted that the right of access to and equality before the courts applies equally to all individuals, regardless of immigration status.

2.46We now consider the relevant natural justice protections in more detail in order to understand the scope of each right, to identify to what extent the law reform proposed in this project may impact on each right and finally to propose potential measures that could both protect the information in question and uphold natural justice protections at the same time.

Open justice and the public hearing principle

2.47In an earlier project, the New Zealand Law Commission considered the principle of open justice and concluded that:53

… the principle of open justice goes to the very existence and health of our political and legal institutions. It is regarded as an important safeguard against judicial bias, unfairness and incompetence, ensuring that judges are accountable in the performance of their judicial duties. It is also thought to maintain public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny, and that: "Justice should not only be done, but should manifestly and undoubtedly be seen to be done".

2.48Open justice must necessarily permeate all political and legal institutions, and thus the principle of open justice must include not just civil and criminal proceedings but also administrative decisions to the extent this is possible. Open justice provides a record of proceedings assisting in exposing potential abuses of power or irregularities in proceedings and providing assurance when proper processes were followed. To the extent that open justice is present, we consider there to be a stronger culture of justification and accountability.

2.49There is a clear link between open justice and public proceedings, but public proceedings do not guarantee that open justice has been achieved. Administrative decisions, such as the decision to grant a passport, often occur without formal court proceedings that could be classified as public, yet openness and transparency remain fundamental requirements and should be strived for at all times. Care needs to be taken by decision makers to ensure that principles of open justice and natural justice are consistently applied.

2.50The starting point or the “default setting” for both civil and criminal proceedings is one of openness. Open justice requires:54
(a) the machinery of justice to be subject to independent scrutiny by people who can verify whether the rule of law is being applied; and
(b) procedural fairness to be accorded to all parties such that they are aware of the evidence against them and given the opportunity to rebut that evidence.
2.51However, we note that the principle of open justice is not absolute.55 There are exceptions to it, which result from an even more fundamental principle that the chief object of the judicial system is to secure that justice is done. An example of measures to limit the principle of open justice is the steps taken to protect children and vulnerable witnesses.56 Thus, situations sometimes arise in which doing justice in public could frustrate justice itself.57

Potential problems and possible solutions

2.52Public proceedings provide a level of scrutiny and assurance that the party’s rights are being respected and that there is no abuse of power by branches of government. It gives legitimacy to proceedings. However, if we accept that national security information may need to remain out of the public domain, it may then be necessary to exclude the public, the media and even the parties to the case from some parts of proceedings.

2.53Possible measures that could be adopted in the context of proposed law reform include permitting a limited number of press members access to the court (having given a non-disclosure undertaking to the court)58 and using screens to shield witnesses giving oral evidence relating to the national security information. In addition, any exclusion measures adopted should be kept to a minimum and proceedings closed only when the information in question is before the court.

Equality of armsTop

2.54Equality of arms provides that the accused must have the opportunity to prepare and present its case, including challenging evidence, on the same footing as the prosecution.59 It is viewed as equalising the playing field between the parties.60 A party opposing a government is without doubt in a much weaker position given the combined resources of the state thus any inroads into the equality of arms principle require robust justification.

2.55In New Zealand, the equality of arms principle is reflected in sections 24, 25 and 27 of NZBORA, the latter of which affirms that every person has the right to bring and defend and have civil proceedings heard against the Crown in the same way as civil proceedings against individuals.

2.56Limiting the access of individuals to national security information relating to the case they are answering or promoting would likely infringe upon the equality of arms principle. However, steps may be taken to help mitigate any prejudice to the relevant individual, for example, effective summaries (or information “gists”) can be given. Similarly, the courts can appoint a suitably trained, supported and prepared advocate to represent the interests of the individual. These and other options are considered in further detail.

Disclosure and discovery

2.57The principle of disclosure is relevant because without sufficient knowledge of the Crown’s case and the evidence to support that case, it is impossible for the individual to defend themselves or to present a counter-argument.61
2.58Within the framework of criminal proceedings, equality of arms necessitates not just informing an individual of the charges being faced but also adequate disclosure of the material evidence to be relied up on by the prosecution.62 There needs to be sufficient disclosure of the evidence that is relevant to the prosecution’s case so the defendant is not surprised and can prepare arguments in advance.63 The prosecution must make available all evidence that it will rely on in court or that is exculpatory.64
2.59Similarly, the failure to allow examination of witnesses has been viewed internationally as amounting to “a flagrant case of denial of fair trial rights”.65 In particular, in a criminal trial, where a person’s liberty is in question (or if the individual faces a risk of deportation in the administrative context), there is a stronger case that “secret evidence and anonymous witnesses should not be used”.66 As discussed above, situations might arise where disclosing information would prejudice national security. One option to facilitate partial disclosure in this context is to use a security-cleared lawyer, known as a “special advocate”, to represent the interests of the affected person. A special advocate may view the security information but is restricted in the extent to which they can communicate with the individual whose interests they represent.

2.60In the Al Rawi case,67 heard before the United Kingdom Supreme Court, Lord Kerr (a Justice of the Supreme Court), expressed reservations that using a special advocate is a viable option to ensure natural justice protections. His concerns related to restricting communication between the advocate and the affected individual, which Lord Kerr considered would then restrict the advocate’s ability to challenge evidence. He stated that “to be truly valuable, evidence must be capable of withstanding challenge … Evidence which has been insulated from challenge may positively mislead”.68 Lord Kerr preferred the continuation of public interest immunity to permit a “balancing of, on the one hand, the litigant’s right to be apprised of evidence relevant to his case against, on the other, the claimed public interest”.69

2.61Natural justice necessitates a certain level of information being accessed by the affected party, and arguably simply granting access to the relevant information to a representative of the affected party would be insufficient. Submissions are invited as to whether disclosure to a special advocate would be sufficient to achieve this or whether additional measures are needed to ensure the special advocate has the power to challenge evidence and present a robust argument on behalf of the individual represented. This will be discussed further in Chapter 6.

Evidence obtained or presented contrary to evidentiary standards

2.62In addition to the individual’s right to have evidence disclosed, there is a prohibition against the use of evidence obtained contrary to international standards, for example through torture or compulsion.70 It is difficult to imagine that this scenario could be a possibility in New Zealand. However, we suggest that the courts should be granted with significant discretion to equip special advocates with adequate facilities to test and challenge evidence (while retaining its confidentiality).

2.63There is also the potential in closed proceedings for issues to arise as to the truth of evidence presented. This suggests that whatever mechanisms are used to protect national security information that is presented as evidence, the evidence must still be able to be tested and challenged so that the decision maker can properly assess whether it is reliable and what weight it should be given.

Right to choose counsel

2.64The right to choose counsel is relevant because it assists the individual to create a relationship of trust and confidence with the person(s) that will be representing the individual’s interests and because it ensures that counsel is independent. In a time of high stress and with an outcome that can severely infringe the individual’s freedom, finances and reputation, it is important that the individual is assisted by counsel who truly represents their interests. This also gives credibility to the process from the perspective of the affected individual.

2.65The right to choose counsel is not absolute but any restrictions must have a “reasonable and objective basis”.71 Indeed the United Nations Human Rights Committee has stated that the equality of arms principle cannot be respected where the accused is “… unable to properly instruct his legal representative”.72

2.66It therefore becomes problematic if an individual cannot choose counsel to represent their interests. Appointing an advocate to act on behalf of the relevant party clearly limits the rights set out in sections 24, 25 and 27 of NZBORA including the fact that not having counsel of choice may impinge upon the right to present evidence as the individual wishes. On the other hand, the use of a court-appointed advocate (a “special advocate”)73 may at least ensure that the individual is represented at all times while allowing national security information to be considered.74

2.67The House of Lords acknowledged that, although there may be circumstances where the appointment of special advocates is necessary, there are potential issues in relation to the ability of the client to instruct and communicate with counsel that can undermine the fair trial rights relating to legal representation.75 Were special advocates to be used in a criminal trial, any provisions restricting communication with the defendant would be contrary to the express provision under Article 14(3)(b) of the ICCPR that everyone charged with a criminal offence shall have the “right to communicate with counsel of his own choosing” and the protections under section 23 of NZBORA.

2.68If a special advocate model was to be adopted, comparing the experience of other jurisdictions may be useful. In Canada, special advocates are permitted limited communication with the affected party that they represent, while in the United Kingdom, there is no communication (except in the Employment Court context where there is communication but not about the substance of the closed material itself). In the United States of America, lawyers are security-cleared but continue to have ongoing consultation with their clients. A further alternative is for the court to monitor communication. These issues will be addressed in more detail in Chapter 6.

Independent and impartial courtTop

2.69The principle of having an independent and impartial court is relevant because fairness requires that the person making a decision on the rights of the parties does so without any bias that could influence the decision. This is an especially important protection in criminal proceedings where the outcome may affect an individual’s right to liberty. In New Zealand judicial independence is considered a cornerstone of our court system. Accordingly, section 25(a) NZBORA affirms the right to an independent and impartial court in criminal proceedings.

2.70An independent and impartial court or tribunal is one that is independent of the executive and legislative branches of government, or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature.76
2.71In practice, independence and impartiality are ensured by a number of statutory and non-statutory mechanisms. Legislation protects judicial tenure and financial security. Judges are appointed by the Governor-General on the recommendation of the Attorney-General,77 and strong constitutional conventions apply to ensure that the advice of the Attorney-General is independent of political party considerations. Complaints about the conduct of judges are considered by an independent body.78 The integrity of judges themselves and their adherence to the judicial oath is also a strong protection.79 An independent and impartial judiciary safeguards against any transgression of government powers.

2.72The principle of independence suggests that decisions about national security information should not be left solely to the preserve of the Executive. For the court to simply accept an assertion that information cannot be disclosed without undertaking further analysis would, in our opinion, be an unacceptable avoidance of the court’s duty and responsibilities as captured in NZBORA.

2.73It is suggested that it should be for the Crown (with input from the intelligence community) to assess what constitutes a threat to national security, but that the court should have a supervisory role when a security threat is claimed as a reason for departing from natural justice requirements. This would help create a “culture of justification”80 as outlined above. Chapter 6 further considers how this might operate in practice.

51 Andrew Butler “Limiting Rights” (2002) 33 VUWLR 537 at 554.
52 Article 8 of the Universal Declaration of Human Rights GA Res 217A, III (1948) provides that “everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms 213 UNTS 222 (opened for signature 4 November 1950, entered into force 3 September 1953) [European Convention of Human Rights] provides that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The Fifth Amendment to the United States Constitution says “no person shall be deprived of life, liberty or property without due process of law” and the Sixth Amendment expressly provides, in the context of criminal prosecutions, that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defense”. Section 7 of the Canadian Charter likewise states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of natural justice”.
53 The Law Commission looked at the question of open justice and considered that, as a general rule, the courts conduct their business publicly unless this would result in injustice. The procedure by which a case is determined must be transparent, and there should not usually be a limit on the publication of fair and accurate reports of proceedings; Law Commission Suppressing Names and Evidence (NZLC IP13, 2008) at [1.1]–[1.5].
54 McGarrity and Santow, above n 18, at 123.
55 Law Commission, above n 53, at [1.3].
56 Article 14 ICCPR, above n 20, notes this may be the case stating that exclusion of the public or press may be needed “when the interest of the private lives of the parties so requires”.
57 McGarrity and Santow, above n 18, at 123.
58 As was done in the United Kingdom in Guardian News and Media Ltd v Incedal [2014] EWCA Crim 1861, [2015] EMLR 2; see Owen Bowcott “Selection of journalists to attend terror trial raises fears over press freedom” The Guardian (online ed, London, 13 June 2014); and Owen Bowcott “Key elements of secret terror trial can be heard in public, court rules” The Guardian (online ed, London, 12 June 2014).
59United Nations Human Rights Committee General Comment No 32: Article 14: Right to equality before courts and tribunals and to a fair trial CCPR/C/GC/32 (2007).
60The United Nations Human Rights Committee has confirmed that “the right to equality before courts and tribunals, in general terms, guarantees … those of equal access and equality of arms, and ensures that the parties to the proceedings in question are treated without any discrimination” at [8]. In other words, not just equal treatment before the courts but also equal treatment by the courts.
61For example, if there was a breach of Article 7 ICCPR (the prohibition on torture), above n 20, “information about the circumstances in which such evidence was obtained must be made available to allow an assessment of such a claim”.
62For example, in Foucher v France (1998) 25 EHRR 234 (ECHR) at 34, the European Court of Human Rights stated that “according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case in conditions that do not place him at a disadvantage vis-à-vis his opponent” which includes access to the case file and information therein.
63The United Nations Human Rights Committee has clarified that article 14(3)(a) requires the defendant in criminal charges be informed of both the law and the “alleged general facts on which the charge is based”: United Nations Human Rights Committee Caladas v Uruguay A/38/40 (1983) at 192. The Committee found that notice of the charges is necessary to enable the accused to act accordingly for example taking steps to secure release from imprisonment if the individual believes the charges are not warranted. The Committee found that sufficiency of detail is key.
64For example, in Peart v Jamaica, the Court found that withholding evidence that someone else committed the crime was viewed as a clear breach of article 14(3). The United Nations Human Rights Committee specified that exculpatory material should be understood as including not only material establishing innocence but also other evidence that could assist the defence such as indications that a confession was not voluntary: Human Rights Committee Peart v Jamaica CCPR/C/54D/464/1991 (1995).
65Human Rights Committee Al-Labouani v Syrian Arab Republic, Working Group on Arbitrary Detention, Opinion No 24/2008 A/HRC/13/30/Add1 at 46 (2010) at [27]. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia likewise held that these fair trial guarantees aim to put the accused in a position of “procedural equality in respect of obtaining the attendance and examination of witnesses with that of the prosecution. In other words, the same set of rules must apply to the right of the two parties to obtain the attendance and examination of witnesses” Prosecutor v Kupreskic (Decision on Appeal by Dragan Papic against Ruling to Proceed by Deposition) ICTY Appeals Chamber IT-95-16-AR733, 15 July 1999 at [24].
66Amnesty International “Rights at Risk: Amnesty International’s Concerns Regarding Security Legislation and Law Enforcement Measures” (2002) at 37. In a case where the accused was ordered to leave the courtroom during the questioning of an undercover and masked agent who was one of two main prosecution witnesses and the accused was not permitted to question the witness, the United Nations Human Rights Committee considered that the accused’s right to question witnesses was “violated”: United Nations Human Rights Committee Koreba v Belarus CCPR/C/100/D/1390/2005 (2010). Likewise, in its Concluding Observations of the Netherlands, the United Nations Human Rights Committee questioned the practice of using secret witnesses in cases where anonymity was requested on the grounds of national security: Concluding Observations of the Human Rights Committee: Netherlands CCPR/C/NLD/CO/4 (2009).
67 Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531 at [93].
68At [93].
69 At [93].
70United Nations Human Rights Committee, above n 59. See also article 15 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987).
71 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism above n 30, at [40]. The right to choose counsel as found in ICCPR, above n 20, art 14(3)(d).
72 Wolf v Panama CCPR/C/44/D/289/1988 (1992).
73See Chapter 6 for a full discussion of special advocates.
74There will likewise be a violation of article 14(3)(d) if the lawyer appointed fails to in fact advocate on behalf of the interests of the individual: United Nations Human Rights Committee Estrella v Uruguay A/38/40 (1983) at 150. The European Court of Human Rights has expressed a similar view, stating that “an accused’s right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society … if a lawyer were unable to confer with his client and receive confidential instructions from him without surveillance, his assistance would lose much of its usefulness”: S v Switzerland (12629/87; 13965/88) ECHR 28 November 1991 at [48].
75Roberts v Parole Board [2005] UKHL 45 at [83] on appeal from [2004] EWCA Civ 1031.
76 United Nations Human Rights Committee, above n 59.
77There are exceptions for example magistrates are appointed under the District Courts Act 1947 on the advice of the Minister of Justice.
78Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. The Law Commission in its review of the Judicature Act 1908 expressed doubt as to whether this was a sufficiently robust approach: Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012).
79See the Oaths and Declarations Act 1957, s 18.
80 Butler, above n 51, at 554 quoting Etienne Mureinik.