1.1This Report contains the Law Commission’s recommendations on two separate but interrelated references. In Part 1 of the Report, the Commission completes its review of the Crown Proceedings Act 1950. Part 2 reports on the Commission’s review of the use of national security information in proceedings. Both references are about improving the infrastructure that supports the Crown’s involvement in litigation.
1.2The Crown Proceedings Act enables the Crown to both sue and be sued in the courts. It is in general need of modernisation to reflect the realities of modern government in New Zealand.
1.3The national security information project is narrower in scope as it is focused on just how the Crown can use, or refuse to disclose, national security information, but it covers criminal proceedings as well as civil and judicial review proceedings. It also covers administrative decisions that determine individuals’ rights, whether or not these involve the courts.
1.4The two projects share the issue of public interest immunity. Public interest immunity provides a mechanism by which the Crown can limit its obligation to disclose information under the Crown Proceedings Act. Under the public interest immunity doctrine, the Crown may refuse to produce documents if disclosure would be injurious to New Zealand’s security or its defence or international relations. Section 27(3) of the Crown Proceedings Act provides for a process (to be established under the High Court Rules) under which the Prime Minister may certify that the disclosure of information would be likely to prejudice the security or defence of New Zealand.
1.5As part of the review of the Crown Proceedings Act, the Commission has considered the Crown’s obligation as a party in proceedings to disclose documents containing relevant information. This includes whether, and how, current public interest immunity limitations on disclosure on national security grounds should be changed. This question of whether public interest immunity in respect of national security information should be reformed is central to the Commission’s reference reviewing the protection, disclosure and use of classified and security-sensitive information in court proceedings.