Chapter 6
Reform – where to from here?

Introduction

6.1This chapter explores the possible options for protecting national security information in proceedings, drawing on the experience of the United Kingdom, Canada and Australia as well as New Zealand’s as yet untested Immigration Act 2009 provisions.

6.2In exploring the possible options for reform, we consider the following underlying questions:

(a) What information is sufficiently prejudicial to national security to justify withholding it or having it only released into a closed procedure?
(b) Who should decide whether national security information is disclosed to affected parties in proceedings, withheld or partially released in proceedings – the courts or the executive?
(c) How should national security information be used in proceedings?

6.3If New Zealand is to make greater use of closed proceedings, there remains the question of where to draw the line between the full disclosure of relevant material, disclosure in closed proceedings or refusing disclosure completely. One of the advantages of the closed proceedings model might be that it gives a procedure by which claims that material should not be disclosed can be examined. It also enables limited disclosure where the only other alternative would be non-disclosure.

6.4As we discuss further below, we consider that, in criminal proceedings, the accused person should have the opportunity to fully answer the Crown’s case against them. A prosecution should not proceed where non-disclosure of relevant evidence would lead to an unfair trial. However, in relation to civil and administrative proceedings it may be possible to fashion solutions that allow for partial disclosure.