Chapter 2
Interests to be taken into account

Introduction

2.1The overall objective for this review is to develop mechanisms to facilitate the use of national security information in proceedings and administrative decision making, so that natural justice rights are protected, open justice is maintained as far as possible, the disclosure of national security information does not create unacceptable security risks, and a workable accommodation between the different interests is achieved.

2.2This chapter examines what look to be incongruous interests of protecting national security on the one hand and ensuring the right to natural justice for individuals on the other. As noted in Chapter 1, human rights and national security may be viewed as complementary rather than opposing values. Accordingly safeguarding human rights, which in this project are primarily the right to natural justice and open justice, may in fact provide us with a framework in which the protection of national security within court proceedings can be achieved. In other words, in what ways might natural justice protections be construed to ensure that national security information remained secure while also ensuring the right to natural justice and open justice is assured?

2.3Much can be said about the individual components of natural justice both at the domestic and international levels. Rather, our intention is to highlight the characteristics of natural justice that are relevant to this project so that readers can comment on these matters when making submissions.

2.4This chapter will look at how natural justice and open justice rights are captured under New Zealand law in the New Zealand Bill of Rights Act 1990 (NZBORA) and then turn to consider what is meant by “protecting national security” before looking at how the two concepts interact. It will then analyse how a rights-based framework could facilitate law reform in this area. We will examine the different natural justice protections asking how each would be threatened by the use (or restriction on the use) of national security information in court proceedings but also consider how each protection could be adapted to facilitate the use of national security information.