Interests to be taken into account
The right to natural justice in the face of a risk to national security
2.74International commentary and case law suggests that there is a threshold by which the cumulative breach of due process rights would make justice impossible but that the breach of one of the bundle of rights would not, of itself, preclude a fair outcome. Context plays an important part in determining whether and to what extent the rights of the individuals can be limited without being undermined. This is equally true where the right to natural justice is seemingly threatened by a risk to national security.
2.75For example, in the context of addressing whether the human rights under Article 14 of the ICCPR could be derogated from due to a state of emergency, the United Nations Human Rights Committee noted in General Comment 29 that states “must act within their constitutional and other provisions of law”. In other words states are required to follow a legal process to ensure any derogation is justifiable and can be shown to be so justifiable. To set aside rights protected under the ICCPR, the level of national security threat must be significant.
2.76Article 4 of the ICCPR recognises that in times of public emergency threatening the life of the nation, there may be exceptions to the protections listed in the ICCPR. However, the United Nations Human Rights Committee stated in General Comment 29 that “parties may in no circumstances invoke Article 4 of the Covenant as justification for deviating from fundamental principles of fair trial”. Any decision to set aside the guarantees in Article 14 requires taking into account the state’s other international obligations and cannot be discriminatory.
2.77The viability of derogation is linked to the nature of the measures taken. The state in question must justify both the state of emergency and the derogation and the United Nations Human Rights Committee has previously opted not to legitimise derogations on the basis that there was insufficient “submission as to facts or law to justify such derogation”.
2.78Derogation from the significant human rights protections afforded under the ICCPR is reserved for extreme circumstances. Certainly the requirement that there must be an officially declared state of emergency would preclude a government from relying on Article 4 as a means by which to set aside the protections in Article 14 in order to avoid disclosure of national security information.
2.79A potential or actual threat to national security presents a clear dilemma in terms of the extent to which natural justice and open justice rights are absolute. Yet, the right to natural justice and the right to open justice are crucial because the rule of law is an important constitutional principle upon which New Zealand democracy is based.
2.80The breach of a fair trial protection does not of itself lead to a failure to provide natural justice. However, where a fair trial becomes impossible (for example due to an accumulation of breaches), then the trial itself becomes void. Context is important in determining whether a fair trial can be maintained.
2.81If natural justice and open justice rights are undermined, this impacts not only on the individual in question but can have implications for society as a whole. Any exceptions to natural justice and open justice protections must therefore be preceded by debate, which is the goal of this project.
2.82This chapter has illustrated that the range of national security interests that may come into play are varied and are subject to extensive international debate. We believe it is possible to protect those national security interests while also promoting principles of natural justice and open justice. Any law reform proposals to permit derogation from fundamental rights should be developed in a carefully monitored rights-based framework.
2.83Before turning to consider the options for reform in Chapter 6, we now turn to consider the issues that arise when dealing with national security information in criminal and then civil and administrative matters.