New Zealand takes the right to access to justice very seriously. At the same time, New Zealand is also not immune from the threat of terrorism that increasingly permeates daily life in the 21st century. The need to counter terrorism has led some governments to take steps to restrict access to information that, if disclosed, could threaten national security. This has in turn led to some courts and commentators calling for greater protection of the rights to natural justice and open justice as these are values that lie at the heart of the democratic framework that we believe terrorists seek to undermine. It is timely for New Zealand to consider how, as a society, we wish to balance these interests of protecting national security and upholding the right to natural justice and what roles we consider the Crown and the judiciary should play.
As in all its projects, the New Zealand Law Commission must bear in mind two goals - the best access to justice possible for all and ensuring that New Zealand’s legal structure is robust enough to adapt to the changing needs of modern society. This reference to review how national security information is dealt with in court proceedings embodies the potential tension between these two goals. However, we believe there is ample scope to reconcile the fundamental right to justice on the one hand and the need to protect national security on the other hand. This is our challenge, and we invite the public to assist us.
This issues paper deals with issues of considerable public importance such as when the Crown should have the ability to refuse to disclose information in court proceedings, which strikes at the very heart of the open justice principle. We invite submissions as to what amounts to legitimate national security concerns (for example, protecting intelligence-gathering partnerships and methodology) and what responses can help mitigate the impact that non-disclosure of national security information might have on what are fundamental principles of our rule of law system. Our aim is to ensure the procedure is clear and effective when legitimate national security concerns necessitate that the Crown’s disclosure obligations be altered.
Sir Grant Hammond