Chapter 5
Overview and summary

Framework for reform

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.

Natural justice protections

5.26The Commission’s starting premise is that all court proceedings in New Zealand must be conducted in a fair manner, must adhere to the principles of natural justice and should as far as possible be open and transparent.70 Limitations on procedural rights need to be justified. Failing to disclose evidence that is relevant in court proceedings or administrative decision-making, on the grounds of a threat to national security, must be justified.
5.27Section 5 of the New Zealand Bill of Rights Act 1990 (NZBORA) provides that the “rights and freedoms contained [in the Act] may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.71 Tipping J summarised in R v Hansen that “whether a limit on a right or freedom is justified under section 5 is essentially an inquiry into whether a justified end is achieved by proportionate means”.72
5.28A culture of justification contributes to “principles of good government, such as transparency, accountability, rational public development, attention to differing interests and so on”.73 The challenge is to ensure that any rights that are viewed as fundamental are protected in a substantive sense while recognising that at the same time there may be circumstances that allow the procedural protections to be limited in the way envisaged by section 5 of NZBORA.

Open justice and the public hearing principleTop

5.29The principle of open justice goes to the very existence and health of our political and legal institutions. We regard it as an important safeguard against unfairness that helps maintain public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny and that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”.74 Open justice is a fundamental common law principle.75 It is supported by the freedom of the media to report on matters of public interest. The role of the media in holding government to account and upholding the rule of law is a vital aspect of open justice.76 The importance of open justice argues against closed procedures, even if they can be done in a way that does not affect the fundamental fair trial rights.

The principle of equality in litigationTop

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.

The importance of an independent and impartial courtTop

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.

The need to protect national securityTop

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.

70For more detail on our approach, see Law Commission National Security Information in Proceedings (NZLC IP38, 2015) at ch 2.
71The New Zealand courts have commonly adopted the test set out by the Supreme Court of Canada in R v Oakes [1986] 1 SCR 10. See R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [64] per Blanchard J and at [103]–[104] per Tipping J.
72Hansen, above n 71, at [123] per Tipping J.
73Andrew Butler “Limiting Rights” (2002) 33 VUWLR 537 at 554.
74R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, [1923] All ER Rep 233.
75In Al Rawi v Security Service [2010] EWCA Civ 482, [2012] 1 AC 531 at [10]–[15] per Dyson LJ, open justice was described as more than a “mere procedural rule”, but rather “a fundamental common law principle”.
76House of Lords House of Commons Joint Committee on Human Rights The Justice and Security Green Paper, Twenty-fourth Report of Session 2010–2012, HL Paper 286, HC 1777 (4 April 2012) at [217].