Contents

Appendix 5
Recommendations

Part 2 National security information in proceedings

Chapter 6 Civil proceedings

RECOMMENDATIONS

R12Section 27(3) of the Crown Proceedings Act 1950 should be repealed and replaced by new legislative provisions that provide for the disclosure and management of national security information in civil proceedings.

R13Section 70 of the Evidence Act 2006 should be amended to:
  • include information that would currently be covered by common law public interest immunity; but
  • exclude national security information, which will be dealt with under the new legislative provisions.
R14National security information should be defined as information that, if disclosed, would be likely to prejudice:
(a) the security or defence of New Zealand; or
(b) the international relations of the Government of New Zealand; or
(c) the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation.
R15The court should hold a closed preliminary hearing to assess how national security information should be used (if at all) in the proceedings.

R16A closed hearing should have the following features to ensure that national security information is protected while before the court:
  • The judge must close the court to the public and exclude non-Crown parties, their lawyers, the media and any other person who does not have security clearance to access the national security information.
  • The judge must appoint a special advocate to represent the interests of the excluded non-Crown party.
  • The judge will be able to review the national security information and hear arguments about its use from representatives on behalf of all parties to the case.
  • The judge must direct that a summary of the national security information be provided to the non-Crown party and their chosen counsel. If the court is satisfied that it is not possible to produce a meaningful summary without disclosing national security information, the judge may waive this requirement.
  • The judge has a supervisory role over the final content of summary.
R17The judge should determine whether to exclude the national security information, make the national security information available to the non-Crown party (including with protective measures) or direct that the national security information be heard under closed procedures. The matters that must be taken into account are:
  • whether the information in question falls within the definition of national security information;
  • whether national security interests can be adequately protected if the national security information is provided to the non-Crown party;
  • whether, having regard to the degree to which the national security information is likely to be of assistance to the non-Crown party or determinative of the Crown’s case, the proceedings can be fairly determined without it being put before the court;
  • the degree of potential prejudice to the non-Crown party if the national security information is heard under a closed procedure; and
  • whether the interests protected by the withholding of that information are outweighed by other considerations that make it desirable, in the interests of justice, to disclose the information or allow it to be used in a closed procedure.
R18Where an application is made for non-party discovery against the Crown in respect of information the Crown claims is national security information, the judge should have the power to hold a closed hearing.

Chapter 7 Administrative decisionsTop

Recommendations

R19 If a person would be entitled to receive information about a decision that affects their rights but the information must be withheld for security reasons, the person should instead receive a summary of the information agreed by the chief executive of the relevant agency and the decision-maker.
R20When an administrative decision is made that gives rise to the right of complaint to the Inspector-General of Intelligence and Security, the person affected must be notified of their right to make a complaint and have the actions of the security and intelligence agencies reviewed by the Inspector-General.
R21When security and intelligence agencies provide information used in an administrative decision that affects the rights of an individual, the Inspector-General must be provided with a copy of the information given to a decision-maker and a record of the decision made.
R22The decision-maker may decide to reconsider the decision if the Inspector-General makes a finding that the information was not reliable or balanced.
R23The Passports Act 1992, the Terrorism Suppression Act 2002, the Telecommunications (Interception Capability and Security) Act 2013 and the Immigration Act 2009 should be amended where necessary to give effect to the recommendations above.
R24Consequential amendments are needed to legislation that currently provides for closed or semi-closed procedures in judicial review or appeals of administrative decisions. These procedures would be modified to ensure greater consistency with R12 – R18 and R30 – R41.

Chapter 8 Criminal prosecutionsTop

Recommendations

R25 Where the disclosure of grounds for a search or surveillance warrant may prejudice national security, the person subject to the warrant should be able to challenge the warrant through a special advocate. In addition to challenging the validity of the warrant, the special advocate may also present arguments for the disclosure of the grounds to the affected person.
R26 The special advocate will operate in accordance with the same procedure as outlined above at R12 – R18 and R30 – R41.
R27 The Criminal Disclosure Act 2008 should be amended to provide for the use of special advocates in challenging a claim for non-disclosure of national security information.
R28 The Criminal Disclosure Act 2008 should provide that the judge may dismiss proceedings under section 147 of the Criminal Procedure Act 2011 if the national security information must be protected but withholding it would prevent a fair trial from occurring. The Criminal Procedure Act 2011 should also provide that the prosecutor may withdraw proceedings if the judge orders material to be disclosed but the prosecutor remains of the view that disclosure would be an unacceptable risk to national security.
R29 The Evidence Act 2006 should be amended to provide for anonymity protections for sources and intelligence officers. This should apply in criminal and civil proceedings.

Chapter 9 The special advocate regime and security issuesTop

Recommendations

R30Legislative provisions should provide that the role of a special advocate is to represent the interests of the non-Crown party in a closed procedure (including closed preliminary hearings).

R31 A limited statutory immunity should protect special advocates from claims of professional misconduct or unsatisfactory conduct as lawyers under the Lawyers and Conveyancers Act 2006 where they are acting in accordance with the requirements of their role as special advocates.

R32There should be a panel of designated security-cleared lawyers who are suitably qualified and experienced to undertake this work from which special advocates are appointed.

R33The Government should consider how best to provide necessary training and logistical support for those appointed to the panel in order to ensure that New Zealand can maintain a high level of knowledge and capacity within the panel of special advocates.

R34The costs of the special advocates and the cost of their support should be met by the Crown.

R35The court should have the power, to be exercised on application by the non-Crown party, to appoint a special advocate from the panel of designated special advocates to represent the non-Crown party’s interests in a preliminary hearing. The court should appoint the advocate who is nominated by the non-Crown party unless there are exceptional reasons requiring the court to appoint another panel member instead.

R36The appointed special advocate should have full access to all “national security information” at issue in the case and should be under a statutory obligation to keep that material confidential and to not disclose it, except as expressly permitted under the regime.

R37After the special advocate has been given access to the national security information, he or she may only communicate with the non-Crown party or the party’s lawyer in such terms as are permitted by the court.

R38The appointed special advocate should be able to submit on any matter relevant to the use of national security information, including:
  • the designation of information as “national security information”;
  • the level of redaction of any information that is to be partially disclosed to the affected party;
  • the content of the summary of information, in particular, whether it discloses sufficient information to give the affected party an opportunity to comment on any potentially prejudicial information they have not been given; and
  • whether a closed procedure should be used or whether information that cannot be disclosed should be excluded from proceedings.
R39A special advocate must have adequate powers within the closed hearing to be effective. In particular, the advocate should be able to call witnesses and cross-examine witnesses in closed procedures and exercise other powers that advocates normally have in order to protect the interests of the person they are representing.
R40Subject to the following specific exceptions, all cases involving national security information should be heard in the High Court:
(a) The Immigration and Protection Tribunal should continue to hear cases involving national security information and other types of sensitive information.
(b) Employment Court proceedings involving national security information should be heard by the Chief Employment Court Judge or by any other Employment Court Judges nominated by the Chief Employment Court Judge for that purpose.
(c) Proceedings involving national security information in the Human Rights Review Tribunal should continue to be heard there. Provision already exists for removing proceedings to the High Court on public interest grounds.
R41The relevant court or tribunal hearing any case involving national security information should have the power to appoint a special adviser for the purposes of giving advice on any aspect of national security in any proceedings before it.