Contents

Appendix 3
Submissions summary and comment

A single overarching framework

53In the Issues Paper, we asked whether New Zealand should adopt a single overarching framework for managing national security information that applied to all civil proceedings and also what features such a framework should have.144

54The Chief Ombudsman supported a generic system to be used by different courts rather than reliance on inherent powers on a case-by-case basis. The Privacy Commissioner was of the view that the standard process in civil proceedings should allow for judicial discretion and express incorporation of openness as a guiding value. The Police submitted that it would be useful to have a clear set of statutory rules for the disclosure and use of national security information in civil proceedings.

55The NZLS noted that inconsistencies amongst existing statutory regimes suggested that there was some value in developing a single statutory regime applicable to administrative and civil contexts. The NZBA submitted that a generic regime would promote consistency. The NZBA suggested that there should be multiple options or pathways by which the information could be used, including special advocates and relying on your own lawyer. However, it should be for the court to decide which is the appropriate pathway.

56The Chief Justice submitting on behalf of the judiciary thought it would be difficult for one system to account for all possible circumstances and that, if we were to propose an overarching framework to apply to civil proceedings generally, it would be better to identify principles.

57The joint submission from the NZSIS and GCSB said that a single unified procedure for managing national security information in proceedings should be developed to give certainty and structure for judges and litigants. The NZSIS and GCSB were of the view that the procedure should be provided for in legislation, should include the use of special advocates and should be flexible enough to be used in different types of proceedings (civil and criminal). The NZSIS and GCSB also submitted that the procedure should be flexible enough to accommodate the different ways that national security information might be in issue in proceedings. In that regard, the NZSIS and GCSB noted that, in some cases, the national security information might form part of the evidence for the case, and in others, the national security information might comprise the methodology by which a particular piece of evidence was obtained.

Comments on submissions

58We agree with the majority of the submitters that a standard approach to managing the disclosure and use of national security information in civil proceedings should be developed. We are mindful of the difficulty noted by some submitters of creating a system to fit all possible circumstances that arise and as to the desirability of ensuring that judges retain enough flexibility to tailor the procedure to the particular requirements of a given case. We also agree with the views of the NZSIS and GCSB that any procedure should be flexible enough to accommodate the different ways in which national security information can arise in court proceedings.

144Law Commission National Security Information in Proceedings (NZLC IP38, 2015) at 60, Q14 & Q15.