Chapter 1
One Report – two references

Origins and conduct of the reviews

1.12The terms of reference for both reviews are set out in Appendix 1.

Review of the Crown Proceedings Act

1.13The Law Commission began work on the review of the Crown Proceedings Act in July 2011. It was a continuation of earlier work dealing with the legal nature of the Crown conducted by the Law Commission in the late 1980s and early 1990s.1 The public service went through large-scale changes in those decades, while the 1950 Act changed little to reflect this. The State Sector Act 1988 and the Public Finance Act 1989 created a new legal architecture for the New Zealand public service, and the Crown Entities Act 2004 consolidated the law relating to the many government entities that have their own corporate personality. The outdated Crown Proceedings Act contains provisions that do not reflect modern government accounting practices, for instance, those relating to the mechanics for the enforcement of judgments against the Crown.2

1.14The Commission released the Issues Paper A New Crown Civil Proceedings Act for New Zealand (IP 35) in April 2014. The Issues Paper proposed the enactment of a new statute and included a draft Crown Civil Proceedings Bill. While the Crown Proceedings Act review is in nature very much a technical reform about “lawyer’s law”, it has the important purpose of ensuring that people are able to seek appropriate legal redress against the Crown. The proposals in the Issues Paper and the draft Bill sought to simplify and modernise the current Act to assist the conduct of litigation against the Crown.

Public interest immunityTop

1.15In the context of the Crown Proceedings Act review, the Commission looked at whether it would be helpful to enact a comprehensive legislative framework for withholding information on grounds of public interest immunity which is currently dealt with by section 27 of the Act. Under section 27, the Crown may issue a public interest immunity certificate to preclude the release of information. In the Issues Paper A New Crown Civil Proceedings Act for New Zealand (IP 35), the Commission suggested that a legislative framework could:

1.16The Commission suggested in the Issues Paper that a statutory framework would address concern that public interest immunity does not allow for adequate consideration of the needs of the other party to the litigation to be addressed. Currently, that party may be disadvantaged by not having the opportunity to argue that there is a case for sensitive information being disclosed.

1.17In the Issues Paper, the Commission raised the possibility of an even broader regime that more widely addressed the use of classified and security-sensitive information in civil proceedings. A claim for public interest immunity is a rather blunt instrument. It has the effect of preventing the disclosure of information and thereby excluding it from a proceeding. This can prevent the proceeding from being able to be heard at all.

1.18The Commission said that any new framework would need to balance the interests of other parties clearly against the need to ensure protection of the sensitive information. Legislation could set out a process involving the appointment of a security-cleared special advocate to view the material and represent the interests of the individual or entity concerned when there is a claim for public interest immunity.

1.19Overseas jurisdictions have introduced ways of allowing this sensitive information to be used in court despite its classified nature. Special advocates have also been used in the context of closed court hearings in order to represent the other parties’ interests. In the Issues Paper, we discussed these options and summarised overseas approaches. We noted that consideration of a broader new regime under which protected information could be used in court potentially extended beyond the bounds of the Crown Proceedings Act review. Rather than simply looking at public interest immunity and the role of certificates under section 27, it involved a more expansive consideration of how protected information can be used in court proceedings.

A new reference – national security information in proceedingsTop

1.20The Minister Responsible for the Law Commission, the Hon Amy Adams, referred a new reference to the Commission in November 2014. The Minister asked the Commission to review measures to protect “classified and security-sensitive information” in the course of criminal and civil proceedings. The scope of the new reference is therefore broad in the sense that it covers the whole ambit of proceedings – criminal and civil, as well as administrative proceedings that determine rights. However, it is also quite constrained because it is concerned only with information that may prejudice national security interests if disclosed, rather than all sensitive information to which public interest immunity applies. The Commission’s review of the Crown Proceedings Act covers all the grounds of public interest immunity currently covered by section 27 of the Crown Proceedings Act. The Commission was asked to also look at whether a new regime is needed to allow for the protected use of classified information in proceedings.

1.21The Commission prioritised this new reference and released the Issues Paper National Security Information in Proceedings Act (IP 38) in May 2015. The completion of a report on the review of the Crown Proceedings Act was delayed until consultation on this Issues Paper could be completed because of the close relationship between the references.

Consultation and submissionsTop

A New Crown Civil Proceedings Act

1.22The Commission received 121 submissions in response to the first Issues Paper, A New Crown Civil Proceedings Act for New Zealand (IP 35). Most of these were personal submissions from individual public servants responding to the issue of immunity for Crown servants, which was directly relevant to them. The other submissions were from the New Zealand Law Society, government lawyers, interested law firms and academics. These submissions provided helpful comment on many of the more technical aspects of proceedings against the Crown and also commented on the details of the draft Bill included in the Issues Paper.

1.23The Commission was fortunate also, over the course of this project, to receive comments and input from the Crown Law Office and other government legal advisers as well as from many experienced lawyers who have acted for parties against the Crown. Feedback from the legal sector has been instrumental in helping to shape the Commission’s final recommendations and draft Bill.

National security information in proceedings

1.24The Commission undertook this review as a matter of urgency. This was done to ensure that the Commission’s Report would be completed and available to the independent reviewers (Hon Sir Michael Cullen and Dame Patsy Reddy) appointed under section 22 of the Intelligence and Security Committee Act 1996 to undertake an independent review of New Zealand’s security and intelligence agencies.

1.25There are a number of common issues between the reviews, so the Commission has liaised regularly with the independent reviewers and shared our developing proposals with the independent reviewers insofar as they were relevant to their review. Although there are some matters common to both reviews, the Law Commission has conducted its review independently under its terms of reference. We understand that Sir Michael and Dame Patsy are due to complete their review and report early in 2016.

1.26The compressed timeframe for the Commission’s review meant that we were only able to give six weeks for public submissions. However, to ensure that our review was based on robust consultation, we also undertook an active programme of meetings with interested parties. This involved intensive consultation within the Crown with agencies involved in national security matters and also with individuals and organisations outside the Crown who have experience in this area.

1.27To ensure the Commission fully understood the Crown’s position in respect of national security information, the Commission established an advisory officials’ group with representatives from the following key departments: the Ministry of Justice, Crown Law Office, Police, Department of the Prime Minister and Cabinet (which is responsible for providing policy advice on the protective security functions of the New Zealand Security Intelligence Service and Government Communications Security Bureau), Ministry of Business, Innovation and Employment, Ministry of Foreign Affairs and Trade, Department of Internal Affairs and New Zealand Customs Service. The Commission consulted this group firstly to gather information on the operation of current measures that protect the use of sensitive information and to help shape the issues for the review. We then tested our proposals with these officials and departments, seeking critical feedback. An outline of this part of the Report and our draft recommendations were provided for comment before we finalised the Report.

1.28The Commission project team also met with representatives from the New Zealand Security Intelligence Service and the Government Communications Security Bureau on several occasions. We debated issues with them and sought critical feedback on our initial proposals. We also tried to ensure that we fully understood their operational and security concerns. We provided the agencies with an outline of this part of the Report for comment before we finalised it. We have endeavoured to address the concerns that they have raised with us when developing our recommendations.

1.29To balance the input from within the Crown, the Commission has actively pursued input from individuals and organisations with expertise in this area outside of the government. In particular, we have undertaken consultation meetings with the New Zealand Law Society, Auckland District Law Society, New Zealand Bar Association and practitioners from the Criminal Bar Association. We also held consultation seminars with the New Zealand Law Society in Wellington and Christchurch and with the Auckland District Law Society in Auckland. Additionally, we met a number of individual barristers and other legal practitioners who have worked in this area. Copies of an outline of this part of the Report and our draft recommendations were provided to a few independent lawyers for comment before we finalised it.

1.30We have been conscious that New Zealand is in a position to take advantage of lessons learned from experiences in both Canada and the United Kingdom. When the Commissioner responsible for this project, Geoff McLay, was in London earlier this year, he met with a number of individuals and organisations that have experience with the United Kingdom’s closed procedures. He had the opportunity to discuss the development of and problems with the United Kingdom’s model and explore how issues could be addressed if New Zealand were to adopt a similar model. Commissioner McLay spoke with senior counsel who have acted either as special advocates or for the Crown in the United Kingdom’s closed procedures, as well as with a number of judges who have presided over closed procedures in the United Kingdom courts. He also met with lawyers from Liberty3 and others from the independent bar who have been very vocal critics of the move to closed procedures.

1.31We also had the benefit of speaking via video conference to a group of senior members of the independent Canadian bar who act as special advocates in proceedings before the Canadian courts. We are grateful for the assistance from both Canadian and United Kingdom experts.

1.32The Commission has considered carefully the input of all submitters and the comments and observations of everyone we consulted. While the recommendations in the Report have been arrived at with the benefit of such input, for which we are very grateful, the views expressed here are those of the Commission after careful consideration of the issues.

1Law Commission Crown Liability and Judicial Immunity: A Response to Baigent’s Case and Harvey v Derrick (NZLC R37, 1997). In August 1989, the Minister of Justice gave the Commission the following reference:
To give fuller effect to the principle that the State is under the law and to ensure that as far as practicable legal procedures relating to and remedies against the Crown (as representing the State) are the same as those which apply to ordinary persons. With this in mind the Law Commission is asked to examine aspects of the legal position of the Crown, including but not limited to –
(i) the civil liability of the Crown, its officers and agencies, and in particular special rules limiting or excluding that liability
(ii) the Crown Proceedings Act 1950, with a view to its reform and simplification;
(iii) the criminal liability of the Crown, its officers and agencies, and relevant procedures, and to make recommendations accordingly.
The issue of the criminal liability of the Crown was partially dealt with by the Crown Organisations (Criminal Liability) Act 2002.
2See the discussion in Law Commission A New Crown Civil Proceedings Act for New Zealand (NZLC IP35, 2014), ch 5.
3Liberty is also known as the National Council for Civil Liberties.