4.4In some contexts where reliance on national security information is expected to be more common (such as immigration, the issuing of travel documents, and terrorism suppression), Parliament has already legislated to provide special procedures. These statutory procedures are discussed in more detail below. It is also possible that national security information might be used in other decisions made by Ministers or public officials. As discussed in Chapter 2, where national security information is relevant, there is a strong argument that it should be able to be taken into account by the decision maker.
4.5Where national security information is used in an administrative decision by a government department, there are questions around how much of that information should be provided to the person affected, and at what stage that information should be provided in order to respect the person’s right to natural justice.
4.6It might not be possible to provide the person affected by the decision with the information relied on without risking national security. In such cases, the person’s ability to respond to any allegations or concerns arising from the information will be restricted. Even once a decision is made, it still might not be possible to give the person the full reasons for the decision, hampering their ability to decide whether or not to appeal or challenge the decision. This last factor is especially important where a person must weigh up their prospects of success against the risks (financial or otherwise) of bringing appeal or review proceedings.
4.7Different approaches to ensuring that natural justice is respected at the initial decision making phase are already enacted in legislation.
4.13The circumstances surrounding the issuing of a security risk certificate in respect of Mr Ahmed Zaoui in 2003 and his subsequent detention provide a useful backdrop to the discussion of the issues in this chapter by highlighting several of the interests that come into play.
4.15Mr Zaoui requested a review of the security risk certificate by the Inspector-General of Intelligence and Security. In conducting the review, the Inspector-General concluded that Mr Zaoui had no right to a summary of the allegations underlying the certificate because to do so would involve the disclosure of classified information.131
4.17In dealing with the question of classified information relied upon by the Director of the NZSIS, the Inspector-General appointed two special advocates to represent Mr Zaoui’s interests. The special advocates had access to all of the classified information but were prevented from disclosing this material to Mr Zaoui and were unable to seek instructions based upon it.
4.19The facts of the Zaoui case illustrate the competing interests involved in this area. There is a strong public interest in ensuring that the Crown can use national security information where it is relevant to a decision that has national security implications. This is balanced by the acknowledgment of the need to ensure a person affected by a decision can challenge that decision in a meaningful way. The holding by the courts that a person affected by a decision is entitled to receive at least a summary of the reasons for that decision, and the decision of the Inspector-General to appoint special advocates pursuant to a general statutory power to regulate the procedure of inquiries as he or she saw fit were significant developments in this regard.
4.20Following the Zaoui proceedings, changes were made to New Zealand’s immigration legislation to give more statutory guidance about how national security information can be used in decisions on immigration and refugee status whilst attempting to provide appropriate protection to the right to natural justice and the principle of open justice. It is arguable that some aspects of the procedure adopted do not go far enough with respect to the protection of fundamental rights. In particular, the fact that the special advocate has no apparent input into the production of the summary is one feature that may need to be reconsidered. Involving the special advocate in the summarising process would enable the affected person’s interests to be taken into account and would, in our view, encourage a more robust approach to the inclusion of information in the summary.136
4.21Officials working with national security information at the initial decision making stage will understandably exercise great care when deciding whether or not to release the information. They are likely to err on the side of caution and not disclose information if there is any doubt as to the risk posed. There is unlikely to be an independent person to assess the validity of an assertion that the information is national security information and the decision to withhold information will therefore normally depend solely on the department’s assessment of the risk to national security.
4.22Complaints to an Ombudsmen,137 the Privacy Commissioner,138 and the Inspector-General of Intelligence and Security139 might provide some degree of independent assessment of the Crown’s assertions of prejudice to national security. However, any complaint will likely take place after the decision has been made, and any power those independent bodies might have to order the production or disclosure of information is subject to a Cabinet override.140
4.23The particular circumstances of a decision have the potential to vary significantly depending on the power relied on and the role of the decision maker. Some decisions must be made urgently in order for the decision to have any effect. In other cases providing the person with notice of the decision might frustrate the purpose of the legislation. Any reform proposal would need to be flexible enough to account for a variety of different contexts.
4.24As an alternative to disclosing the national security information at the initial decision making stage, a summary of the information proposed to be relied on might enable the person to respond to any allegations or concerns before the decision is made. In cases of urgency, a summary might be used to provide further details of the reasons for the decision after it is made, thus enabling the person to make a more informed choice about appealing or judicially reviewing the decision.
4.25In some cases, special advocates might potentially be able to represent a person’s interests before a final decision is made. However, as is the case with summaries of national security information, their utility in any particular decision making process would be dependent on the nature of the decision and the timeframes available.
4.26Administrative decisions must balance the procedural rights of the affected party with the need to make decisions efficiently. Mechanisms such as the use of summaries (or “gisting”) and special advocates might result in additional administrative burdens. Decisions will take longer to make, and more resources may be required to facilitate the decision making process, which might not always be justified in the circumstances. Where the volume of decisions required is low, these additional burdens might be absorbed into and managed within existing administrative structures. However, this might not be the case if the volume of cases increases. Any reform proposals must therefore also take into account these practical implications.