Chapter 4
Administrative decisions and review

Using national security information fairly in administrative decisions

4.3Every person has the right to the observance of natural justice by any public authority that has the power to make a determination in respect of that person’s rights, obligations or interests.119 However, the particular context of the decision in question will affect the degree to which the requirements of natural justice might be derogated from or modified. Legislation can constrain how natural justice is given effect, but in the absence of an express intention to remove it, the common law obligation to comply with the requirements of natural justice will apply.

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.

Immigration Act 2009

4.8The Immigration Act 2009 places controls on the way in which “classified information” (as defined in the Act) can be used by the Minister or a refugee and protection officer for the purposes of making certain decisions.120 Before information can be used the Minister must first determine if the information relates to matters of security or criminal conduct.121
4.9Where classified information might be relevant to a decision under the Act, the Minister can request a briefing from the Chief Executive of the agency that holds the information, however, the content of that briefing is determined by the Chief Executive.122 The Act also provides that the Minister may seek the assistance of a security-cleared assistant.123 The briefing provided to the Minister must be balanced. It must not be misleading due to the omission of relevant information, and must include any classified or non-classified information that is favourable to the person affected. The Chief Executive also has an ongoing obligation to provide further relevant information as it becomes available until the decision concerned is made or subsequent proceedings are completed.124 The Chief Executive may also withdraw, update or add to the classified information provided to the Minister at any time. Where this happens the Minister must repeat the assessment of whether or not the information is relevant before the information can be used.125 If the information, or part of it, is withdrawn the decision maker (either the Minister, refugee and protection officer, or the Tribunal) must disregard the withdrawn information when making their decision.
4.10Where classified information is used to make certain decisions, the person affected must be given a summary of the national security information before a decision is made. The content of the summary is agreed between the Chief Executive of the relevant agency and the decision maker (the Minister or refugee and protection officer). Crucially, for the purposes of making the relevant decision, the classified information can only be relied on to the extent that the allegations arising from it can be summarised.126
4.11If an adverse decision is made relying on classified information, the person affected must be told that such information was relied on, the reasons for the decision (as far as can be done without disclosing the information), what appeal rights they have, and that they can be represented by a special advocate if an appeal is available. Reasons must be given in writing.127

Telecommunications (Interception Capability and Security) Act 2013Top

4.12Part 2 of the Telecommunications (Interception Capability and Security Act 2013 (TICSA) relates to the interception duties of network operators. Under this Part, national security information is not disclosed to the person or body affected at the initial decision making stage.128 However, the Act provides a review mechanism to enable scrutiny of the decision and the information by a court and the appointment of special advocates to assist in the process.129

New Zealand background: Ahmed ZaouiTop

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.

4.14Mr Zaoui arrived in New Zealand in December 2002 and claimed refugee status. In March 2003 the Director of the NZSIS provided a security risk certificate130 concerning Mr Ahmed Zaoui to the Minister of Immigration. The certificate relied on classified security information that indicated to the Director that Mr Zaoui was a threat to national security. Mr Zaoui’s claim for refugee status was initially rejected but was granted on appeal to the Refugee Status Appeals Authority. However, because of the security risk certificate, Mr Zaoui continued to be detained after this determination.

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

4.16Mr Zaoui sought judicial review of this determination on the basis that the decision was unlawful, ultra vires, and in breach of the right to justice under section 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA). The High Court held that Mr Zaoui was entitled to a summary of the allegations that formed the basis of the conclusion that he was a risk to national security.132 Subsequent appeals to the Court of Appeal133 and Supreme Court134 did not challenge this finding.

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.

4.18This case was the first time special advocates were used in New Zealand.135 However, the use of special advocates was not fully tested as following the appointment of a new Director of the NZSIS in 2007, the security risk certificate was withdrawn.

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

Issues in administrative decisionsTop

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.

119 New Zealand Bill of Rights Act 1990, s 27(1).
120Classified information may only be used for decisions relating to visas, entry permission, detention, deportation, or determinations relating to refugee and protection status: Immigration Act 2009, s 39.
121Immigration Act 2009, s 33(1).
122Immigration Act 2009, ss 34(1)(a) and 34(1)(b).
123Immigration Act 2009, s 34(1)(b).
124Immigration Act 2009, ss 36(1)(c) and 36(2).
125Immigration Act 2009, s 37.
126 Immigration Act 2009, s 38.
127 Immigration Act 2009, s 39.
128Telecommunications (Interception Capability and Security) Act 2013, s 19.
129Telecommunications (Interception Capability and Security) Act 2013, s 105.
130In 1999, the Immigration Act 1987 was amended by section 35 of the Immigration Amendment Act 1999 to introduce procedures allowing the Director of the New Zealand Security Information Service (NZSIS) to issue a “security risk certificate” in respect of a foreign national seeking to enter or remain in New Zealand: Immigration Act 1987, s 114D. Prior to the 1999 changes, decision makers in New Zealand had not been able to withhold information about non-citizens, as persons to be deported had the right to access all information relevant to their case.
131 Zaoui v Attorney-General [2005] 1 NZLR 577 (CA) at [4].
132Zaoui v Attorney-General [2004] 2 NZLR 339 (HC).
133Zaoui v Attorney-General, above n 131.
134Zaoui v Attorney-General (No2) [2005] NZSC 38, [2006] 1 NZLR 289.
135 Lani Inverarity “Immigration Bill 2007: Special Advocates and the Right to be Heard” (2009) 40 VUWLR 471 at 473.
136The Supreme Court’s decision in Zaoui v Attorney-General, above n 134, also illustrated how tension may arise between questions of national security risk on the one hand and protecting what are considered as fundamental human rights on the other. The Crown accepted at [76] that it was “obliged to act in conformity with obligations under Articles 6(1) and 7 ICCPR and Article 3 of the Convention Against Torture” as expressed under New Zealand law in s 72 and s 114 of the Immigration Act 2009 and found in NZBORA. The Court held the view that the Minister could not therefore order that Mr Zaoui’s continued presence constituted a threat to national security necessitating deportation (pursuant to s 72 Immigration Act 2009) where there were “substantial grounds for believing that as a result of the deportation the person would be in danger of being arbitrarily deprived of life or of being subjected to torture or cruel, inhuman or degrading treatment or punishment”, at [93]. International protections relating to refugees and the prohibition against torture are just two of the fundamental human rights obligations that New Zealand is bound by and that will need to be kept in mind in the context of this project and in reconciling how to deal with information that cannot be disclosed for reasons of national security.
137Ombudsmen Act 1975; and the Official Information Act 1982.
138Privacy Act 1993.
139Inspector-General of Intelligence and Security Act 1996.
140Under s 20(1)(a) of the Ombudsmen Act 1975, the Attorney-General can issue a certificate that prevents an Ombudsman from requiring the production of documents or information the disclosure which would prejudice national security, defence, international relations, or the investigation or detection of offences. Where a recommendation has been made by an Ombudsmen, it must be complied with unless the Governor-General, by Order in Council, otherwise directs. Under s 31 of the Official Information Act 1982 and s 95 of the Privacy Act 1993, the Prime Minister (or the Attorney-General in matters relating to law and order) can prevent an Ombudsman or the Privacy Commissioner from requiring the disclosure or production of information that would prejudice important national interests (which include national security, defence, international relations or the investigation or detection of offences). Under s 26(3) of the Inspector-General of Intelligence and Security Act 1996, the Minister responsible for the intelligence agency concerned can prevent the disclosure of any information that might prejudice security, defence, international relations, or the safety of any person.