Chapter 2
Interests to be taken into account

Protecting national security

What does “protecting national security” mean?

2.18A significant part of the debate as to when natural justice and open justice protections can be reasonably infringed upon is what we in fact mean when we say that “protecting national security” may justify these rights being set aside.

2.19On some conceptions, national security cannot justify encroachment of basic freedoms because it contains an inbuilt requirement that those freedoms be upheld. There has been extensive international commentary on this issue, relevant to the present review. We have drawn particularly on a recent report by the European Parliament, which showed the variety of constitutional frameworks and the divergence in approach, even within democratic countries with similar security interests.39

2.20In the European Parliament report it was noted that there is no legislative definition of national security in the United Kingdom.40 The House of Lords (then the highest court of the United Kingdom) however has commented that national security includes protection of democracy, military defence, the legal and constitutional systems of the state, and in taking measures against a foreign state.41 At the heart of democracy is the maintenance of the principle of natural justice, which creates a paradox within the definition: how can national security justify a departure from natural justice protections if it includes a requirement to uphold democratic principles?

2.21While the New Zealand courts have not yet been called upon to define national security, we expect that they will also face difficulties in pinning down the concept although there are varying definitions in use.42 The term clearly includes protection against major security threats, but where should the line be drawn?

2.22Some European nations have statutory definitions, some of which include matters such as economic, ecological, territorial and political threats. The Dutch National Security Strategy 2007, for example, states that “national security is at stake when one or more of the country’s and/or society’s vital interests are threatened to such an extent that potential societal disruption could occur”.43
2.23Ultimately, the European Parliament report concluded that “conceptual fuzziness leads to accountability deficits of the executive and intelligence communities”.44 The Report noted with concern this lack of critical assessment by judicial authorities. In our view, a lack of clarity about what national security does and does not include makes it more difficult to assess a claim by the relevant government or intelligence agency that national security is under threat. This may inhibit oversight and review of the authorities responsible for classifying and excluding information on the basis of national security, which in turn may encourage wariness as to the use of secret materials in judicial processes.

2.24Part of the difficulty is that there may be degrees of threat to national security, and degrees of importance to national security interests. A broad definition may be appropriate in some contexts (for example, in giving the defence force powers to act in a natural disaster) but not in other contexts (for example, where national security is being advanced as a reason to limit individual rights in a particular court proceedings). This suggests that, for the purposes of this review, we need to be aware of the potential breadth of security interests while also accepting that they should not all receive the same level of deference.

The role of the Crown in protecting national securityTop

2.25Intelligence agencies and the Crown are, in New Zealand, products of a robust democratic process that cherishes accountability and transparency. The rule of law requires that all branches of government act within the confines of their proper functions, and any law reform proposal must ensure these limits are respected. In our view, transparency facilitates good governance and legitimacy and should be a priority even in the context of a threat to national security.

2.26New Zealand may be geographically isolated, but it is neither socially nor politically isolated, and the country’s interaction with other states impacts the daily life of New Zealanders. The Crown (as the executive branch of government in New Zealand) seeks to promote and strengthen the country’s international relations not just for defence purposes but in order to foster strong economic and trade relations.

2.27The potential threat to national security goes further than the question of whether the substantive content of the information should be disclosed (for example, the specific details of a document or phone call). The notion of protecting national security must also take into account the importance of New Zealand’s intelligence-gathering partnerships and the confidence our allies have in us as well as the methodologies and sources used and the potential consequences of these being made public.

2.28New Zealand has international obligations in terms of assisting in the global response to combating terrorism, and the possibility of a terrorist threat on our territory cannot be discounted. These obligations must be remembered when painting a picture of the range of interests to be taken into account in this project. Accordingly, it is important to bear in mind that the reasons the Crown may have for claiming information has national security implications may be more nuanced than simply keeping control of the information in question.

New Zealand’s obligations in gathering and sharing intelligence informationTop

2.29The Terrorism Suppression Act 2002 encapsulates both New Zealand’s pre-existing obligations45 and those obligations that arose post the September 11 attacks pursuant to United Nations Security Council Resolution 1373 (2002), which binds all United Nations members. The Crown must act in a manner that satisfies these obligations.

2.30Article 2(d) of Resolution 1373 places New Zealand under a positive obligation to “prevent those who finance, plan, support or commit terrorist acts from using [New Zealand] for those purposes against other states or their citizens”. There are three features arising out of New Zealand’s obligations under Resolution 1373 that are relevant here.

2.31First, there is an obligation on states to gather and share intelligence information for the purposes of identifying and preventing terrorist plots and conspiracies. Article 2(b) requires New Zealand to take “necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other states by exchange of information”. Article 2(f) provides that states must provide:

the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings.

2.32Article 3(a) calls on states to “find ways of intensifying and accelerating the exchange of operational information”. Article 3(b) goes on to say that states should “cooperate on administrative and judicial matters to prevent the commission of terrorist acts”. The cumulative effect of these provisions is to place New Zealand under an obligation to establish and maintain procedures and paths for information-sharing and international co-operation against terrorism. Article 3(c) expressly refers to the use of “bilateral and multilateral arrangements and agreements” for this purpose.

2.33The second and related obligation is that states are called upon to uphold standards of international human rights law and rule of law principles to bring perpetrators or those alleged to be involved with terrorist activities to justice. These standards apply equally to the collection and acquisition of information for these purposes. Article 3(b) refers to the exchange “of information in accordance with international and domestic law”. Article 3(f) specifically refers to “conformity with the relevant provisions of national and international law, including international standards of human rights” in relation to ensuring that the refugee claims process is not abused by individuals with links to terrorist activities (or in order to facilitate further terrorist activities). There are two clear imperatives captured by Resolution 1373: the prevention and suppression of terrorism on the one hand and the maintenance of international legal standards on the other.

2.34The third feature of Resolution 1373 that is relevant to this project represents the crossroads of those two imperatives, as states must work together to bring perpetrators to justice. Article 2(e) says states shall “ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice … and that the punishment duly reflects the seriousness of such terrorist acts”. Article 2(f) goes on to require states to “afford one another the greatest measure of assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings”. Arguably, an inherent tension exists between prosecuting individuals suspected of terrorist offences and protecting the source of intelligence that would enable prosecution of these individuals while also upholding legal standards relating to natural justice.46

2.35One of the ways that the Crown seeks to fulfil New Zealand’s obligations is by designating terrorist entities and individuals in order to prevent the financing of, participation in and recruitment to terrorist entities. The designation process is twofold. First there are those entities and individuals listed according to United Nations Security Council Resolution 1267 and second, pursuant to Resolution 1373, New Zealand actively identifies and designates entities to be added to the list.47

2.36This is an example of where the Crown’s attempts to uphold New Zealand’s international obligations may conflict with human rights obligations relating to the use of national security information. The Ministry of Justice has stated that its practice is to only use unclassified or open-source information when preparing a case for designation as a terrorist entity. This raises issues when the Security Council designations rely on classified information and individuals included on the list are only provided summaries of the information rather than access to the evidence itself.48

2.37Obligations also arise pursuant to New Zealand’s status as a party to the UKUSA Communications Intelligence Agreement, which is a multilateral agreement on the exchange and sharing of intelligence information.49 The agreement sets out the terms of continued collaboration by “five eyes” or “FVEY” partners (the United States, the United Kingdom, Canada, Australia and New Zealand). Co-operation “is dependent on … adherence to the provisions” listed.50 Specifically, paragraph 5 notes that the parties agree to “the exchange of information regarding the methods and techniques involved in the operations outlined” but “upon notification of the other party, information may be withheld by either party when its special interests so require”. The receipt of intelligence from New Zealand’s FVEY partners depends on mutual respect of non-disclosure requests.

2.38In our view, these aspects of the FVEY arrangement demonstrate the tension between the benefits to be received from ongoing active participation in shared intelligence arrangements with other nations on the one hand and the potential pressure that the conditions of receipt and participation may place on New Zealand (specifically the Crown) in terms of using that intelligence on the other hand.

2.39One reason the Crown may be reluctant to have national security information disclosed in court proceedings is because this could have implications for New Zealand’s obligations to its intelligence sharing partners. Disclosure of substantive information may not in itself pose a security risk but could inadvertently lead to the uncovering of intelligence-gathering tools and techniques, for example the identification of an undercover intelligence agent or informer whose safety would then be at risk.

2.40The Crown has obligations and responsibilities that are wide ranging and on the face of it can be contradictory. A consistent theme throughout is the responsibility to protect New Zealand and its citizens, both from external threats and from the risk of executive over-reach and procedural unfairness. The question is what law reform would, in the scope of this project, best help the Crown to meet all these obligations and responsibilities?

39Directorate-General for Internal Policies National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges (European Parliament, September 2014).
40At 32.
41Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153 (HL) at [16]–[17].
42For example on the Protective Security website national security is defined as “a term used to describe the safety of the nation from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on New Zealand’s defence system, acts of foreign interference or serious organised crime, as well as the protection of New Zealand’s borders”: New Zealand Security Intelligence Service “Glossary” Protective Security Requirements <www.protectivesecurity.govt.nz>. Another example is the definition of “security” found in s 2 of the New Zealand Security Intelligence Service Act 1969. See Chapter 6 for further discussion on this point.
43Directorate-General for Internal Policies, above n 39, at 34.
44 At 35.
45Such as the International Convention for the Suppression of Terrorist Bombings 2149 UNTS 256 (opened for signature 12 January 1998, entry into force 23 May 2001).
46In its Select Committee Report on the Terrorism Suppression Amendment Act 2007, the Foreign Affairs, Defence and Trade Committee noted that there were “particular concerns related to procedural fairness and the human rights of designated persons, and whether these rights should be overridden to protect New Zealand’s national security”. The Committee agreed that “processes involving special advocates and security-cleared counsel would add additional elements of protection but consider[ed] that the inclusion of such procedures in the [Terrorism Suppression] Act should not be considered in isolation” and recommended that the procedures for use of classified information in the Immigration Act should be taken into account: Terrorism Suppression Amendment Bill 2007 (105-2) (Select Committee Report, 2007) at 5. The Terrorism Suppression Act 2002 is discussed in further detail in Chapter 4.
47New Zealand Police “Terrorist Designation Process” (3 November 2010) <www.police.govt.nz> at [7].
48Ministry of Justice “Counter-Terrorism Measures” <www.justice.govt.nz> at [59]. The European Court of Justice has discussed the process of relying on classified information in making designations in Case T-85/09 Kadi v European Commission [2010] ECR II-5177 noting the conflict between human rights protections and the fulfilment of international obligations.
49This was an arrangement between the United States and the United Kingdom, entered into post World War II and subsequently expanded to include New Zealand, Australia and Canada. Known as “five eyes” or FVEY, this arrangement relates to the acquisition of signals intelligence, which is principally concerned with the interception of communications.
50Appendix J “Principles of UKUSA Collaboration with Commonwealth Countries Other than the UK” in UKUSA Communications Intelligence Agreement (1955) at [8].