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:
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
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
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?