35Another broad policy question we have grappled with and sought submission on was the degree of judicial scrutiny of an executive claim that information needs to be protected and their role in deciding how that protection should be given effect. When information is relevant to proceedings, should the Crown be able to avoid disclosure based on national security grounds? To what extent should the court have a role in scrutinising the claim of national security? Who decides what happens to information that is highly relevant but also highly sensitive?
36In the Issues Paper, we outlined three possible approaches. The first was that the Crown would certify that information required protection for national security reasons and that the courts would not look behind this certification. The second was that the courts would be able to consider whether any claim by the Crown of national security was valid and would have the power to order disclosure if satisfied that did not put national security at risk. The third option was that the courts would be able to review the Crown’s claim for non-disclosure but that the Crown would then, if it considered it was necessary to protect the information, have the power to override the court’s order that it must disclose the information by issuing a public interest immunity certificate. This third hybrid approach was based on the approach taken in Canada and has parallels with the right of executive veto of an Ombudsman’s recommendation under section 32(3)(a) of the OIA.
37We asked submitters whether the executive override approach might generate a degree of mutual deference between the judicial and executive branches of government and be workable in New Zealand.
38The submission from the Chief Justice said the courts should be the ultimate decision-maker with respect to the treatment of national security information before the courts. It argued that the case for displacing the courts from making these decisions had not been made. The courts are the only effective way of ensuring there is a check on executive power. Further, New Zealand judges do not support the adoption of the Canadian model under which the executive has the power to ultimately and publicly override the courts’ decision because this would remove the check on this aspect of executive power.
39Most other submitters also considered that the courts are best placed to make the determination as to whether the release of particular information will have serious consequences to the safety and security of New Zealand. The courts are familiar with balancing natural justice principles with public interest concerns.
40The NZBA said that the least attractive option was allowing the Crown to have the sole ability to decide whether national security information should be disclosed to affected parties or withheld (totally or partially) in proceedings. The Crown is the least independent person or entity in relation to the decision to disclose national security information, and the person with the greatest interest should not be the person solely making the decision as to whether that information should be disclosed. They considered that the Canadian executive override model has some benefits, including the comfort that this model is likely to give to intelligence-gathering agencies and New Zealand’s allies. However, they consider that such an executive override is inconsistent with the constitutional relationship between the courts and the Crown. The judiciary has the constitutional role of supervising the use of executive power.
41The NZLS said that, although the initial identification of “national security information” should be made by the Crown through certification (or similar) by the Prime Minister, that identification should not be decisive. It is essential that the Crown’s identification of information as “national security information” should be subject to review by the courts to confirm that it meets the statutory definition and, if so, to determine whether the information should be withheld entirely or can be disclosed in partial or summarised form. The NZLS also considered that the hybrid override option might provide a way to give the security and intelligence agencies and their international information-gathering partners assurance of the ultimate safety of some of the information that they possess.
42The Privacy Commissioner said that it would be more consistent with the rule of law for the courts to decide whether national security information is disclosed to affected parties in preference to the executive. The Commissioner suggested that the hybrid model may achieve a suitable constitutional accommodation. The Commissioner drew attention to the parallel in New Zealand’s OIA, which provides a right of executive veto of an Ombudsman’s recommendation that information be released. Although it is rarely used, it provides a kind of “constitutional safety valve” and power balance between the Ombudsman as a parliamentary officer and the executive. Given this precedent, the Commissioner said that it may be worth considering a hybrid model that provides for an executive override.
43The Chief Ombudsman also noted the parallels between the hybrid approach and the right of executive veto of an Ombudsman’s recommendation (section 32(3)(a) of the OIA). The Chief Ombudsman said that, while the rigour and transparency of the option where the Courts are the ultimate decision-maker is attractive, the hybrid model would have more direct constitutional parallels with the Ombudsman’s role in reviewing OIA decisions of information with national security implications. Under this approach, the executive veto takes the form of an Order in Council.
44The Police considered that there needs to be a mechanism to ensure that information that must be withheld is withheld, so final responsibility should not therefore rest with the courts. The security and intelligence agencies have also indicated that they do not favour the courts having the final decision because that model does not give assurance of the ultimate safety of some of the information that they possess.
46Having considered the points made by the GCSB and the NZSIS, we consider that it would not be consistent with a modern conception of the role of the courts and the rule of law to allow the executive to make a determinative claim for non-disclosure with no judicial oversight. There is a difference between the court deciding to defer to a claim of national security by the executive based on the facts of the particular case and the court being prevented by statute from exercising their well established jurisdiction to review executive action solely because the executive claims that there are national security interests at stake.
47When matters are within the preserve of the executive, we would expect the courts to exercise their powers of review with circumspection and mindful of the distinct roles of the executive and the judiciary in our system of government. However, it is crucial for an independent judiciary tasked with holding the executive to account to have full powers to adjudicate on the question of whether executive action is lawful. This is an essential requirement of the rule of law.
48Most submitters and the individuals and organisations we consulted with outside of government considered that the courts must ultimately determine questions on disclosure and the management of national security information within court procedures. A number, as is evident from the discussion above, could live with the executive override option.
49However, we remain concerned that the executive override approach has undesirable implications for the constitutional relationship between the courts and the Crown. We are also not convinced that an executive override is actually necessary to ensure that information that the Crown genuinely must not disclose is not disclosed.
50The 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 does not sit comfortably with this role. An independent and impartial judiciary safeguards against any transgression of government powers. The principle of independence suggests that decisions about national security information should not be left solely to the preserve of the executive. The courts should not have their decisions overridden, except perhaps by Parliament. If the courts are constrained and not able to control court proceedings, the independence of the courts is potentially called into question and the courts are simply lending legitimacy to matters determined elsewhere. The override is also inconsistent with open justice, as there is no transparency about the Crown’s reasoning.
51We also suggest that an override is actually unnecessary. In our view, the risk that the courts will disclose information that must not be disclosed is more apparent than real. We discuss in the Report the need for legislation to be very clear about how the courts should weigh the different interests at stake. While the courts will ultimately have the power to determine how national security information would be managed in proceedings, the executive does retain considerable control over whether information is disclosed. In most situations, it will have the option of discontinuing the proceedings if it is not prepared to disclose the information to the affected party.
52Where that is not an option, the new legislative provisions we recommend would be carefully calibrated to identify the relevant interests and help guide their weighting. The courts would be guided by statutory criteria, and as in all areas of law, it is to be assumed that judges will apply the provision correctly (and that any errors will be addressed on appeal). We think that the models developed in this Report are capable of giving sufficient assurance, and it is therefore difficult to imagine situations where the override needs to be used.