4.80The contexts in which officials and Ministers make first instance decisions can vary in significant ways. For instance, decisions are made pursuant to different powers, relate to different subject matter, are made under different circumstances and exigencies and require different administrative systems. In respect of these kinds of decisions, there would be considerable obstacles to a single process under which decisions involving national security information should be made.
4.81A more workable option might be to clarify that decision makers have the ability to utilise special advocates or produce summaries of national security information in appropriate circumstances. It will then be for the decision maker to decide if, in the circumstances of the particular decision, such mechanisms should be used. Where a decision is appealed or judicially reviewed, the availability of these mechanisms might be an element the courts would be entitled to take into account when deciding if the principles of natural justice were complied with in that particular case.
4.82Where initial decisions are subsequently appealed or challenged in a court or tribunal, there is an argument for establishing a generic system that can be used to allow the national security information to be taken into account in a manner that protects both the information and the individual’s right to procedural fairness, to replace existing inconsistent systems. This is explored in Chapter 6.
Q9 Should elements of administrative decision making processes involving national security information be standardised at the initial decision making stage?
4.83It is a positive feature of the New Zealand statutes described above that they provide mechanisms to mitigate some of the unfairness to people affected by decisions involving national security information. However, as none of these procedures have been used as of yet, our analysis of them is based on inferences as to how the procedures might operate and be interpreted by the courts and tribunals.
4.86We also think that it is questionable whether some of the procedures adequately protect the affected person’s right to natural justice. For example, the absence of an express system for the appointment of special advocates in the Terrorism Suppression Act 2002 creates uncertainty around how a challenge would be dealt with by the courts and whether a special advocate might be appointed under inherent jurisdiction. Likewise, the varied level of scrutiny over the contents of the summary, or assertions by the Crown that information is national security information, raises questions over how effective such summaries would be in helping to protect natural justice rights.
Q10 Should there be a single framework that applies to all reviews or appeals of administrative decisions that involve national security information?
Q11 What features should such a single framework provide for? Should it involve special advocates, summaries of national security information or any other mechanisms to help ensure a fair hearing?
Q12 Should courts or tribunals reviewing administrative decisions be able to consider information that has not been disclosed to the parties to the case?