Chapter 2
Interests to be taken into account

The New Zealand Bill of Rights Act 1990

Natural justice protections under section 27 of NZBORA

2.5Section 27 of NZBORA gives guidance on the scope of natural justice as recognised in New Zealand. Drawing upon international instruments, including the International Covenant on Civil and Political Rights (ICCPR), section 27 provides that:20

(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

2.6The right to natural justice as protected under NZBORA requires decision makers to uphold procedural fairness.21 Namely, section 27(1) protects a right to natural justice where there is:

(a) a determination or decision;
(b) that is adjudicative in nature;
(c) that is made by a tribunal or another public authority;
(d) that has the legal authority to make the relevant judgment; and
(e) the judgment in question relates to the legal rights of an individual (not a group).

2.7In other words, section 27(1) seeks to ensure that the Crown has no unfair procedural advantage over the individual in question.22 In the context of criminal trials and once an individual has in fact been charged with a crime, NZBORA also provides for minimum standards of criminal procedure (section 25) and the right of persons charged (section 24).23

2.8NZBORA gives legislative effect to the rights-based framework under which justice is to be achieved in New Zealand and may only be subject to reasonable limits. The sorts of things that may impinge on natural justice as expressed in section 27 could include:24

2.9Under the common law, the principles of natural justice apply even if there is no express reference to natural justice or the rights protected under NZBORA in the rules and regulations of a tribunal or public authority.25 The Privy Council has stated that “natural justice is but fairness writ large and juridically, fair play in action”26 and, given that it is a flexible concept, what is fair will “depend on the relevant circumstances of each and every case”.27

2.10The observance of natural justice is also reflected for example in courts’ procedural rules to ensure a fair hearing for all parties, in the laws of evidence28 and in the requirements for public officials to give reasons for their decisions in certain contexts. Yet both domestic and international law envisage circumstances where these protections may be impinged upon due to a risk to national security.

2.11States do not have an unfettered discretion in determining what amounts to an issue of national security or in what circumstances the right to natural justice can be set aside. However, international commentary suggests that natural justice protections can be derogated from on the grounds of national security if the claim of national security is embedded in a rule of law and human rights framework.29 The Special Rapporteur on Human Rights and Counter Terrorism, for example, argued that exclusion of the press and public can be done on the grounds of national security if such exclusion is “accompanied by adequate mechanisms for observation or review”.30

Reasonable limits to protected rightsTop

2.12Sections 4 and 5 of NZBORA provide the statutory framework in which derogation from the rights protected under the Act is permissible.

2.13Section 4 of NZBORA provides that the courts shall not hold the provision of any enactment to be invalid or ineffective or fail to apply any provision simply on the basis that “the provision is inconsistent with any provision of this Bill of Rights”. Although the courts cannot decline to apply the statute in question, they can comment as to inconsistency or incompatibility with NZBORA.31

2.14Section 5 of NZBORA provides that the “rights and freedoms contained [in the Act] may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The test for what amounts to a reasonable limit that can be demonstrably justified was set out by the Supreme Court in Canada in 1986 in R v Oakes as being:32

(a) for a sufficiently important purpose to justify negating the right;
(b) rationally connected to the purpose for doing so;
(c) no more than reasonably necessary in order to achieve its purpose; and
(d) not disproportionate in its effect on the individual to whom it applies.

2.15Section 5 is statutory confirmation that “individual freedoms are necessarily limited by membership of society and by the rights of others and the interests of the community”.33 The economic, social or political costs of infringement must however be able to be justified. Ultimately this project seeks to determine at what point it would be demonstrably justifiable to impose limits on natural justice protections for reasons of national security (in other words what are the national security interests that would amount to demonstrable justification) and what would reasonable limits on natural justice protections look like in our democracy?

2.16This dilemma was indirectly touched upon by the Human Rights Commission (HRC) in its 2013 Report to the Prime Minister.34 In the context of referring to the Telecommunications (Interception Capability and Security) Bill the HRC discussed the use of classified information in procedural matters where it was envisaged that a special advocate could be used in the absence of the defendant (or defendant’s counsel).35 The Report considered that “conducting proceedings in the absence of the defendant raises issues about the breach of the right to natural justice in section 27(1) NZBORA”.36 The HRC believed that such a limitation on the natural justice protections set out in section 27 amounted to an “unjustified and a disproportionate response to the need to protect classified security information”.37 The Ministry of Justice took a contrary view in their vet of the Bill under NZBORA.38

2.17For the purposes of this project, we consider that there may be some security interests that could justify altering usual court procedures. This leads to further questions: first, what level of risk to national security would justify a departure from the natural justice protections under section 27 and second, how could court proceedings be conducted to give maximum effect to the right to natural justice despite the limits in place to protect national security?

20 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) [ICCPR].
21R v Barlow [1996] 2 NZLR 116 (CA). For example in R v Duval the Court of Appeal stated that “a person’s right to the observance of the principles of natural justice under section 27 of the [Bill of Rights] Act [includes] … a fundamental principle that persons must know the case against them and have an opportunity to answer that case”. The individual must be told what charges they face and why so that they can prepare and give a defence to those charges: R v Duval [1995] 3 NZLR 202 (HC) at 205.
22In the High Court, McGechan J said that s 27 seeks “to place the Crown in the same position in relation to litigation as private individuals … away from the privileged position which the Crown historically enjoyed”: Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC) at 55.
23For example, s 24(d) adequate time and facilities to prepare a defence; s 24(f) the right to receive legal assistance without cost if the interests of justice so require; s 24(g) the free assistance of an interpreter if the person charged cannot understand or speak the language used in court. Chapter 3 looks at s 25 in more depth.
24 “Introduction to sections 27(1) to 27(3): The right to justice” (2004) Ministry of Justice <www.justice.govt.nz>.
25Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2004] 1 NZLR 462 (CA) at 471.
26Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 718; cited with approval in Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.
27P v Department of Child, Youth and Family Services [2001] NZFLR 721 (HC) at 753 per Potter J.
28 Criminal Disclosure Act 2008; Evidence Act 2006.
29Nowak Manfred United Nations Covenant on Civil and Political Rights: CCPR Commentary (1st ed, N P Engel, Kehl, 1993) at 212; and United Nations High Commissioner for Refugees Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention Relating to the Status of Refugees (4 September 2003).
30Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism A/63/223 (2008) at [30]. The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (which were adopted by leading international law, national security and human rights experts based on international law standards) declare that “a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions”: see The Johannesburg Principles on National Security, Freedom of Expression and Access to Information E/CN4/1996/39 (1996) at art 1, principle 2(a).
31For a discussion of the role of ss 4 and 5 see Susan Glazebrook The New Zealand Bill of Rights Act 1990: Its Operation and Effectiveness (paper presented to the South Australian Legal Convention, Adelaide, 22–23 July 2004) at 55.
32 R v Oakes [1986] 1 SCR 103; approved and applied in Watson v Electoral Commission [2014] NZHC 666.
33 R v B [1995] 2 NZLR 172 (CA) at 182.
34Human Rights Commission Report to the Prime Minister: Government Communications Security Bureau and Related Legislation Amendment Bill; Telecommunications (Interception Capability and Security) Bill, and Associated Wider Issues Relating to Surveillance and the Human Rights of People in New Zealand (9 July 2013).
35This related to the Telecommunications (Interception Capability and Security) Bill 2008 (108-2). In its NZBORA vet on the Bill, the Ministry of Justice specifically noted that “in considering whether these provisions are justifiable under s 5 of the Bill of Rights Act we take into account that they would apply only to applications for a compliance order or a pecuniary penalty order against telecommunications providers. The Bill also allows the court to appoint a barrister or solicitor (with appropriate security clearance) as a special advocate to represent the defendant’s interests. The special advocate can have access to the classified security information. The court may also approve a summary of the classified security information to be given to the defendant.” Taken together the Ministry of Justice considered the limitation on s 27(1) was justifiable. See Crown Law Office Telecommunications (Interception Capability and Security) Bill: Consistency with the New Zealand Bill of Rights Act 1990 (3 May 2013) at [13]–[14].
36Human Rights Commission, above n 34, at [33].
37The Commission noted that its concerns were especially significant because it was unclear if a special advocate would be appointed; Human Rights Commission, above n 34, at [33].
38See Crown Law Office Telecommunications (Interception Capability and Security) Bill: Consistency with the New Zealand Bill of Rights Act 1990 above n 35.