Chapter 6
Reform – where to from here?

What information needs to be protected?

6.5The first question is how to define what information should trigger the use of special procedures or the ability to refuse disclosure completely. In other words, what information is it truly necessary to withhold to preserve national security – given natural justice would otherwise require disclosure? Thus far, we have used a working definition of national security information in this paper. However, when considering reform, we will need a clearer and more precise definition.

6.6Current legislation uses a range of terminology revolving around national security, foreign relations and the like. For example, the definition of “classified security information” used in the Terrorism Suppression Act 2002, the Passports Act 1992202 and the Telecommunications Interception (Capability and Security) Act 2013203 includes information that, if disclosed, would be likely to prejudice New Zealand’s defence or international relations, or prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of another country or any agency of such a government or by any international organisation.204

6.7For the purposes of this review, it would seem to be necessary to try to disaggregate some of the matters that come within broad concepts like prejudice to the security or defence of New Zealand or to New Zealand’s international relations. In this context, we are concerned with the kinds of protections that justify withholding information that should otherwise be disclosed to the affected parties.

6.8Careful consideration needs to be given to precisely what types of security interests should be sufficient to displace the normal assumption that relevant information is disclosed to the affected parties. While it may be appropriate for an official information request to be declined for fear of prejudicing trade agreements and, through them, New Zealand’s foreign relations, this reason may not be sufficient to justify the invocation of a closed proceeding or completely refusing to disclose material to parties before the court. Within each type of interest, also, there might be different levels of seriousness. The degree of prejudice is therefore also relevant.

6.9Our preliminary view is that the interests must really be of major importance to New Zealand and must truly be of a significant character to justify a limitation of such fundamental legal rights. In defining what information may not be disclosed, it ought to be remembered that, in certain circumstances, natural justice would otherwise require disclosure. In other words, there should be a strong reason not to disclose, and disclosure should remain the default position. A decision not to fully disclose must itself be limited by what is truly necessary to preserve national security. To achieve that aim, it is desirable to more closely define the concept of national security.

6.10Not all claims to national security secrecy are the same. Under an approach that keeps the interests of all parties to mind, the greatest degree of disclosure and openness that is consistent with the national security interests at stake would be adopted. This suggests a range of pathways should be available for proceedings, depending on the sensitivity of the national security information in question and its importance. Less significant risks may be managed by the use of ordinary closed court proceedings or suppression orders rather than special advocate procedures.

Question

Q16 What types of security interests should be sufficient to displace the normal assumption that relevant information is disclosed to the affected parties? (In other words, how should we define national security for the purposes of this review?)

202 Passports Act 1992, s 29AA.
203 Telecommunications (Interception Capability and Security) Act 2013, s 102.
204 Terrorism Suppression Act 2002, see s 32 for the full definition.