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).
2.44The 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:
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.
… 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.
2.52Public 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.
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.
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.
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.
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
2.67The 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.
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.
2.72The 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.