Chapter 6
Reform – where to from here?

Who should decide?

6.11The second question we need to consider is who should decide whether national security information is disclosed to affected parties in proceedings, withheld or partially released in proceedings. Should it ultimately be for the courts or the Crown, for example, through the Prime Minister or Attorney-General, to decide what information is withheld on national security grounds?

6.12Currently, a number of different decision makers determine whether information should be disclosed depending on the context. As discussed in Chapter 3, it is our view that in criminal proceedings decisions should be made by the trial judge. In civil and administrative proceedings other options may have merit and we discuss these below.

Civil proceedings

6.13If the Prime Minister determines that national security information is too prejudicial to disclose, he or she can issue a public interest immunity certificate under the Crown Proceedings Act 1950. Traditionally, these have been treated as decisive. At the same time, there has always been the ability for the court to question the certificate, and perhaps to reject it, and some uncertainty as to whether judges are entitled to see the underlying material before making their decision. There is considerable benefit in clarifying what judges may see before they accept a certificate, and in regularising the procedure through which their decisions are made.

6.14Claims for privilege based on matters of state under section 70 of the Evidence Act 2006 are determined by judges. This is similar to public interest immunity, though it is not entirely clear what procedure judges are to adopt when determining if information that is claimed to be protected ought to be so protected.

6.15In Choudry v Attorney-General, the Court of Appeal acknowledged the competing interests that exist in terms of protecting national security information while promoting open government and justice when it stated that:205

… development of those wider controls and the movement to more open government have always, of course, been accompanied by balancing factors or limits, in particular in respect of matters of national security, an area which is often associated with defence and international relations.

6.16The Court noted that matters of national security were traditionally “non-justiciable or barely justiciable”206 but that there is an increasing trend in the courts (nationally and internationally) as well as the legislature to contemplate a role for the judiciary in balancing the needs of national security with the proper administration of justice. In Choudry, the Court concluded that “the secrecy of the work of an intelligence organisation is essential to national security and the public interest in national security will seldom yield to the public interest in the administration of civil justice”.207
6.17In his dissenting judgment, Thomas J viewed the courts as playing a significant role in ensuring accountability of the intelligence agencies. While talking about public interest immunity, Thomas J considered that the courts had a real role in balancing the public interest in the administration of open justice standards and the public interest in preventing disclosure of information on the grounds of national security but said this role was impossible if the courts were not possessed of all the relevant information. He considered that “the court cannot and should not diminish the important judicial role of balancing the competing public interests and determining where the balance of public interest lies” just because the term “national security” is used.208

Administrative decisions and reviewTop

6.18The various statutory regimes discussed in Chapter 4 have different mixes of Ministers, officials, tribunals and courts making decisions, first, in relation to what information poses a risk to national security; second, in relation to what information should be subject to closed proceedings; and third, as to how those procedures should operate. In some regimes, there are different decision makers for each of these steps. A number of regimes place the initial responsibility on a government department or on the security services to make the original claim for protection, although the court still determines if the information is relevant to the proceedings.

Options for reformTop

6.19We suggest that there may be three options in terms of the respective role of the Crown (through the Prime Minister or Attorney-General) and the courts.

I. The Crown could determine whether national security information is too prejudicial to release. Under this option, we would retain something like the section 27 approach of issuing a public interest immunity certificate. Some clarification would be needed to ensure that any role the courts have reviewing the issue of a certificate is restricted.
II. The courts could determine whether any claim by the Crown of national security is valid. The courts would have the power to order disclosure to the affected parties in proceedings or to partially release. The basis on which this is done would need to be clarified.
III. The courts could determine whether any claim by the Crown of national security is valid and have the power to order disclosure (as above), but the Crown would then be able to override that decision by issuing a public interest immunity certificate.

Option I – the Crown determines

6.20The first option would require clarification of the conclusive status of a certificate under what is currently section 27 of the Crown Proceedings Act 1950. It would also require better alignment between this provision and section 70 of the Evidence Act 2006. This option would mean that the courts could not look behind the decision of the Crown and consider the merits of the decision to issue the certificate.

6.21The information covered by the certificate would be withheld on the grounds of national security, or, if new closed processes were introduced, the information would be partially released subject to whatever protective measures were in place for using such information in court. The possible measures for using national security information in court are discussed later in the chapter. The important point here, though, is that the Crown rather than the court would determine whether the information should be introduced into any such procedures.

6.22There are legitimate reasons in favour of the Crown retaining the function of determining whether information is prejudicial to national security interests. Questions of national security, defence and external relations are generally accepted to be matters for the executive branch of government rather than the judiciary.

6.23New Zealand is heavily dependent on national security information being passed on by its allies, and those allies could be reluctant to pass on information in future without guarantees that it will not be released in court proceedings. The security services have to be able to assure themselves and their international information-gathering partners of the ultimate safety of some of the information that they possess. To do this, they may consider it necessary that the Prime Minister or another Minister of the Crown has ultimate control over the information. An approach that gives the final say to the courts may not provide the Crown, which has responsibility for matters of national security, with enough assurance that information will be adequately protected.

6.24The Crown may also consider that there are circumstances in which information that risks serious prejudice to national security interests cannot even be revealed within a closed court process. In such cases, the question is whether the law should allow the Crown to ultimately make the final determination not to disclose the information or use the closed procedure or whether the courts should ultimately determine this issue.

6.25Withholding information may have implications for how the underlying proceedings are conducted. Regardless of whether the Crown makes the decision to withhold, the court will manage the proceedings and determine whether they can fairly continue in the absence of relevant information.

Option II – the courts determine

6.26Under the second option, the decision would ultimately be one for the courts rather than the Crown, although in the area of administrative decisions discussed in Chapter 4, Ministers and officials would retain their roles in respect of first instance decisions. However, the courts would determine at the appeal or review stage whether information should be withheld because disclosure creates a risk for national security or whether it should be partially available within a protected court process. The certification process under section 27 of the Crown Proceedings Act 1950 would be repealed.

6.27This option emphasises the principle that the Crown should be required to act within the law. Those who exercise public power are to be held accountable, and their decisions should be able to be reviewed by an independent body. At times, accountability of the Crown requires the courts to exercise their constitutional role of supervising the use of executive power.209 The courts exercise control under their inherent jurisdiction to review executive action through the use of judicial review. In this way, the courts function to restrain Ministers and officials from exceeding their powers.210 This type of judicial oversight is part of the application of the checks and balances inherent in a system like ours, which divides power between different branches of government.211

Option III - Canada’s executive override model

6.28The third option that may be worth considering is the hybrid approach adopted in Canada. This has the court determine whether information should be withheld on the grounds of national security or whether it should be partially available within a protected court process. However, the Attorney-General is given a statutory power to override the court’s decision on the grounds of prejudice to national security by issuing a certificate withholding the information.

6.29Under the Canada Evidence Act 1985, parties in proceedings and government officials must notify the Attorney-General if it is believed that sensitive information will be disclosed in a proceeding.212 The Attorney-General then decides whether to authorise the disclosure of the information. If the Attorney-General decides not to disclose it, the decision is submitted to the Federal Court. The Federal Court Judge, who is not the trial judge hearing the underlying substantive proceedings, applies a public interest balancing test in deciding whether the information should be disclosed. The Federal Court has the flexibility to decide that the information should be disclosed in partial or summarised form. Once the Federal Court Judge has made this decision, the proceedings go back to the court of origin, where the presiding trial judge continues to undertake an ongoing review of whether or not the non-disclosure order is compatible with fair trial protections.
6.30If the Federal Court decides to allow disclosure, the Attorney-General has the power to nevertheless prohibit disclosure by issuing a certificate that “prohibits the disclosure of information in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity … or for the purpose of protecting national defence or national security”.213 The only grounds for review are whether the information in question falls within the permissible grounds for issuing a certificate.
6.31The Federal Court decision is subject to what is effectively an override by the Attorney-General, because any final review of the certificate can only be on very narrow grounds. However, although the Crown (through the Attorney-General) can ultimately exercise a veto, the very fact it must override the Federal Court inhibits it from doing so. To date, the override has not been used. The court has, in practice, determined the issue, but the existence of the override power arguably gives the needed assurance to security agencies and international partners.214 It is suggested that this approach may generate a degree of mutual deference between the judicial and executive branches of government.

6.32While there are obviously many differences between the Canadian and New Zealand contexts, including of course the fact we do not have an equivalent to the Federal Court, their approach might still provide a suitable model. It could be possible to design a model under which the court determined whether the Crown’s initial claim of prejudice to national security was valid, but the Crown (the Prime Minister or Attorney-General) then had the power to issue a certificate and to withhold the information. This would be a very transparent and public override of the court’s decision. Such an override would only rarely be used and only where the Crown considered it had no choice but to overrule the order for disclosure. A certificate issued at the end of the process would have conclusive status, and the courts would not be able to look behind the certificate to consider the merits of the decision to issue it.

6.33We are seeking feedback on whether this type of approach would be workable in New Zealand or whether one of the other options is preferred. There are implications in this type of override approach for the constitutional relationship between the courts and the Crown. As discussed above, the judiciary has a constitutional role of supervising the use of executive power. Legislating to empower the Crown (who would otherwise only have authority by acting through Parliament and legislating to change the law) to override a decision of the courts may not sit comfortably with this role.

Security clearance and judgesTop

6.34Whether or not the Crown makes the final decision, courts have to deal with cases that involve national security information from time to time, and the question arises whether there should be additional protection measures in place. For example, should cases be restricted to a small pool of judges or tribunal members who might perhaps have some specific training or support to hear these types of claims? A step further might be to consider whether some form of security clearance for such judges or tribunal members is appropriate.

6.35The legislative schemes we discussed in Chapter 4 do not require judges, or Tribunal members in the immigration context, to have any form of security clearance. There is an implicit assumption that such a step is not necessary. Instead, the approach taken, for example, in the Immigration Act 2009, is to restrict the pool of judges who may hear cases involving classified information. Proceedings before the Immigration and Protection Tribunal that involve classified information must be heard by the Chair of the Tribunal, who must be a District Court Judge, or by the Chair and one or two other members who must also be District Court Judges.215 Proceedings in the courts involving classified information may only be heard by the Chief High Court Judge and up to two other judges nominated by the Chief High Court Judge.216

6.36If, for a range of reasons, such as retaining proper separation between the branches of government or preserving the status of judicial officers, seeking security clearance for all judges is not an option, an alternative is to limit the pool of judges or tribunal members who deal with these cases. For example, more senior and experienced High Court Judges, or a pool of judges who have had specific training around security issues.

6.37One way to help build the trust and confidence of New Zealand’s security agencies and their international partners is to adopt robust security measures for managing and handling information in the courts. Limiting the pool of people (including judges) who might be involved, using security-cleared court staff and implementing similar measures in secure facilities are likely to assist in developing greater confidence that national security information is well protected and secure when it is used in court processes.

Questions

Q17 Who should decide whether national security information is disclosed to affected parties, withheld or partially released in proceedings? Should it be the courts or the Crown through the Attorney-General or the Prime Minister?
Q18 Would a model under which the court determines whether the Crown’s claim of public interest immunity on the grounds of national security is valid, but the Prime Minister or Attorney-General has a power to ultimately and publicly override the court’s decision be workable for New Zealand?

205 Choudry v Attorney-General, above n 19, at [12].
206 At [12].
207 At [19].
208At [8] per Thomas J.
209Thomas J emphasised this point in his dissenting judgment in Choudry v Attorney-General, above n 19. He considered that because of the very nature of national security, the New Zealand Security Intelligence Service cannot be held accountable by anybody other than the courts and it is the responsibility of the courts to perform a supervisory function to ensure that they are answerable in a society that places high values on the accountability of public servants.
210Phillip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014) at 212.
211At 212.
212 Canada Evidence Act RSC 1985 c C-5, s 38.
213 Canada Evidence Act RSC 1985 c C-5, s 38.13.
214 McGarrity and Santow, above n 18, at 141 also argue that while the court is ostensibly required to weigh the public interests for and against disclosure, in reality, the approach taken by the court tips the scales towards deference.
215 Immigration Act 2009, s 240.
216 Immigration Act 2009, s 252.