5.25The overall objective for this review is to develop mechanisms to manage the withholding, disclosure and use of national security information in proceedings and administrative decision-making so that natural justice rights are protected, open justice is maintained as far as possible, the disclosure of national security information does not create unacceptable security risks and a workable accommodation between the different interests is achieved.
5.30The approach to reform must have regard to the principle that the Crown should be in the same position as any other party. In Part 1 of this Report on the review of the Crown Proceedings Act, we emphasised that rules that advantage the Crown must be limited to the extent that they can be justified. It is therefore important that procedural rules that govern how claims are brought against the Crown do not disadvantage the non-Crown party more than necessary.
5.31The judiciary has a constitutional role of supervising the use of executive power. An independent and impartial judiciary is essential to hold the Crown to account for the exercise of government powers and safeguard against improper use or overreach.
5.32The principle of judicial independence suggests that decisions about national security information in court proceedings should be reviewable by judges. We are concerned that, if the courts are constrained and not able to control court proceedings, the independence and standing of the courts is potentially called into question. While it may be that a court will seldom depart from an executive determination that a matter is of national security, it is the ability of the court to review the Crown’s claim that gives legitimacy to that classification, especially as the information will not be released publicly.
5.33The potential threat to national security goes further than the question of whether the substantive content of information should be disclosed (for example, the specific details of a document or phone call). Protecting national security also means safeguarding the confidence our allies have in us as well as protecting the methodologies and sources used, given the potential consequences of these being made public.
5.34The disclosure of national security information in proceedings could have implications for New Zealand’s obligations to its intelligence-sharing partners. Disclosure of substantive information may not in itself pose a security risk but could inadvertently lead to the uncovering of intelligence-gathering tools and techniques, for example, the identification of an undercover intelligence agent or informer whose safety would then be at risk.
5.35Part of the difficulty is that there may be degrees of threat to national security and degrees of importance of national security interests. A significant risk to a very important security interest may justify a departure from ordinary standards of procedural protection in court proceedings, while a lesser risk may not be sufficient to justify this.