Chapter 4
Administrative decisions and review

Scope for reform in New Zealand

Administrative decisions

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.

Question

Q9 Should elements of administrative decision making processes involving national security information be standardised at the initial decision making stage?

Statutory procedures for appeal and review of administrative decisionsTop

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.

4.84The mechanisms and procedures provided for are inconsistent in some respects, and we query whether or not the different approaches are justified by reference to the particular subject matter of the decision or the process by which it is challenged. For example, while all five New Zealand statutes discussed above identify the same interests as needing protection167 and relate to proceedings before an independent court or tribunal, we query the justification for the differences in approach adopted in relation to the appointment or roles of special advocates as between the Immigration Act 2009, TICSA, and the Passports Act 1992.
4.85Furthermore, a small distinction in language relating to the production of the summary in TICSA as opposed to the Passports Act 1992 and the Terrorism Suppression Act 2002 (“the court must approve the summary”168 as opposed to “the court may approve the summary”169) may result in quite different interpretations. We question whether such differences are necessary and suggest that one generic set of provisions applying at the court or tribunal stage may be preferable. A generic system could also apply in new areas of law if these arise.

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.

Questions

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?

167The security and defence of New Zealand, international relations, the provision of information on the basis of confidence from other countries and international organisations, and preventing harm to any person.
168 Passports Act 1992, s 29AB(2)(a).
169 Telecommunications (Interception Capability and Security) Act 2013, s 111(3)(a).