This project reviewed the laws that determine how security sensitive information should be dealt with in court proceedings. The review looks at how to protect information that may prejudice New Zealand’s security. It also considers whether the current rules governing disclosure of such information in court, and the use of that information by the Crown or another party in the proceedings, need to be reformed. The review includes consideration of the use of such information in administrative proceedings that determine individuals’ rights, such as those governing a person’s immigration status and eligibility for a New Zealand passport.
The issues covered by this review touch on important constitutional matters, such as the fundamental rights of citizens to open justice and a fair trial, the respective roles of the judiciary and the executive, protecting national security, and principles of open government and democratic accountability.
Terms of reference
The Commission is undertaking a first principles review of the protection of classified and security sensitive information in the course of criminal, civil and administrative proceedings that determine individuals’ rights, and as appropriate, make recommendations for reform. The review is looking at the protection, disclosure, exclusion and use of relevant classified and security sensitive information in such proceedings. As part of the review, the Commission is considering whether legislation is needed to provide a process by which classified and security sensitive information may be disclosed and used in court proceedings (including criminal trials) and administrative proceedings that determine individuals’ rights in a way that protects the information while maintaining principles of fairness and natural justice. There are specific issues around sensitive security information being publically disclosed that the Commission has to address. The Commission is considering, among other things, the approaches of other jurisdictions under which security sensitive information can be admitted but not disclosed to private parties or defendants (or only disclosed to a special advocate acting on behalf of such parties). The Commission needs to develop a working definition of classified and security sensitive information for the purposes of such processes.
The issues being considered by the Commission include (but are not limited to:
(a) The law relating to claiming public interest immunity as a ground for not disclosing relevant information in civil proceedings and criminal proceedings and whether the law should be reformed so as to provide specifically for how a claim is determined;
(b) Whether current provisions for withholding classified and security sensitive information in criminal proceedings are sufficient, and if not, how they might be altered consistently with fundamental values that underpin criminal proceedings in New Zealand;
(c) Whether provision should be made for criminal trials in which classified and security sensitive information could be admitted but not disclosed publically or to the defendant (or could only be disclosed to a special advocate acting on the defendant’s behalf ) and whether such an approach can be reconciled with a defendant’s fair trial rights;
(d) The implications of such trial processes for the law of evidence and rules of criminal procedure;
(e) Whether New Zealand should make provision for hearings in civil proceedings in which classified and security sensitive information can be admitted but not disclosed publically or to private parties (or could only be disclosed to a special advocate acting on behalf of such parties) and if so what form should these take to ensure a fair hearing consistent with natural justice;
(f) Whether New Zealand’s current measures for admitting classified and security sensitive information in civil and administrative proceedings are effective, how comparative international approaches operate, and what New Zealand can learn from those experiences.
The issues covered by this review touch on important constitutional matters: the fundamental rights of citizens to open justice and to a fair trial, the respective roles of the judiciary and the executive, protecting national security and principles of open government and democratic accountability. The Commission is conducting its review independently, but it is liaising with the independent reviewers appointed to undertake a review of security and intelligence agencies under section 22 of the Intelligence and Security Committee Act 1996 where there are common issues. Public consultation is a key component of the Commission’s processes before making any recommendations.
It is not intended that the Commission make recommendations with respect to any purely operational matters, such as funding or other operational and administrative arrangements to institute an appropriate system for protecting classified and sensitive information in civil and criminal proceedings.
National Security Information in Proceedings (NZLC IP38, 2015)
The Law Commission released its Issues Paper, National Security Information in Proceedings (NZLC IP38, 2015), on 18 May 2015.
This Issues Paper considers how national security information should be used and protected in proceedings. It focuses on instances where national security information is relevant to a decision that affects a person's rights or interests, but its disclosure might prejudice national security. The Law Commission’s objective is to establish whether the current law effectively protects such information while upholding fair trial rights and the principles of natural justice, or whether there is scope for reform. In particular, the Paper considers the option of greater statutory guidance for the use of special advocates in civil and administrative proceedings.
Submissions were open until 30 June 2015.
Submissions on Issues Paper IP38
The Law Commission invited members of the public to share their views on the matters discussed in its Issues Paper on the review.
Thirteen submissions were received, all from organisations. These submissions have now been published with the permission of the submitters – read the submissions on our submissions website.
The names and signatures of the staff members of the Government Communications Security Bureau and the New Zealand Security Intelligence Service staff have been withheld from the submission of the New Zealand Intelligence Community under sections 9(2)(g)(ii) and 18(c)(i) of the Official Information Act 1982 (publishing these names is contrary to the Intelligence and Security Act 2017).