Chapter 5
Overview and summary

How is national security information managed in proceedings?

5.5The current law on how national security information is dealt with in proceedings differs somewhat depending on what type of proceedings are involved.

Civil proceedings

5.6The current position is that national security information can be withheld by the Crown under the doctrine of public interest immunity and not disclosed to the other party in civil proceedings. Under section 27(3) of the Crown Proceedings Act 1950, if the Prime Minister determines that national security information is too prejudicial to disclose, he or she can issue a public interest immunity certificate. Section 27 certificates have only rarely been used. Traditionally, these certificates were treated as decisive. At the same time, there has always been the ability for the court to question the certificate, and perhaps to reject it, and some uncertainty around the level of judicial deference and the role of judges in viewing the underlying material before making their decision.

5.7The issue has not been squarely before the courts in New Zealand since 1999 when the Court of Appeal decided the case of Choudry v Attorney-General. The Court stated that while “Courts and legislatures have at times seen those areas as non-justiciable, or as barely justiciable, or as requiring judicial deference to ministerial exercises of discretion”, it was also the case that “Courts do not of course always abstain or defer”.64 In Choudry, the Court decided on the facts of that case to defer to the Minister’s certificate. However, since Choudry was before the courts, practice has developed considerably in the United Kingdom. Judges now appear to customarily be given the underlying material as part of the assessment of whether the certificate has been properly made.65 Even more significantly, to properly exercise their role under the Justice and Security Act 2013 (UK), judges in the United Kingdom must have access to the sensitive information. Furthermore, the relevant Civil Procedure Rules (UK)66 require national security information to be served on the court.

5.8Although it is obviously speculation, we consider that it very likely that the courts would take the same approach to public interest immunity here as has been taken in the United Kingdom and look at the underlying material before making their decision whether to uphold a claim of public interest immunity.

5.9Under section 70 of the Evidence Act 2006, information relating to matters of state may be excluded from proceedings “if the Judge considers that the public interest in the communication or information being disclosed in the proceeding is outweighed by the public interest in withholding the communication or information”. Section 70 of the Evidence Act takes a different approach than section 27(3) of the Crown Proceedings Act because it says that the judge does a balancing act and determines whether national security information must be disclosed to the other party and whether the information can be put before the decision-maker.

5.10It is not clear how this section and section 27(3) of the Crown Proceedings Act relate to each other. The fact that, under section 70 of the more recent Evidence Act, the judge determines whether national security information must be disclosed to the other party also supports our view that the level of deference displayed by the court in the Choudry decision is unlikely to be repeated should the issue be before the higher courts again.

5.11Section 52(4) of the Evidence Act allows judges to make directions to protect sensitive information, including national security information, but there is little case law under the section, and it does not explicitly provide for a closed procedure or use of special advocates. This is an essentially procedural provision, combined perhaps with the use of inherent jurisdiction, neither of which give much guidance as to how to balance the needs of natural security with natural justice and open justice. In contrast, under section 27, courts can only choose between upholding the certificate and denying disclosure of relevant material, or potentially requiring critical material to be disclosed, but at the cost of national security material being released. Our Report seeks to remove the stark choice under the Crown Proceedings Act and clarify the tools available to judges under the Evidence Act.

Criminal proceedingsTop

5.12The Criminal Disclosure Act 2008 applies to criminal proceedings. The Act codified the common law of public interest immunity for criminal proceedings. If relevant information cannot be disclosed by the prosecution to the defence because it would prejudice security interests, that information can be withheld, which also means that it will not be presented in evidence.

5.13Under the Act, all relevant information must be disclosed by the prosecution to the defence unless there is a reason to refuse disclosure. A prosecutor may withhold national security information – but must give a list of the information and the grounds in support. The decision by the prosecutor to withhold information on national security grounds can be challenged on the basis that the information in question does not meet the criteria for national security grounds or on the basis that other interests favour disclosure and these outweigh the interests protected by withholding the information. The courts can view the information and determine the matter and may order disclosure. A court may attach conditions to disclosure. The defence has a very limited ability to present arguments for disclosure without seeing the information. Although the Act does not spell this out, the prosecution can withdraw the charges rather than disclose the material,67 or the charges can be dismissed by the judge.68

Administrative decisions affecting rightsTop

5.14Where national security information is relevant to an administrative decision in respect of a person’s rights, obligations or interests, it can be withheld by the Crown but still used to inform the decision. There are a number of statutory regimes in place (for example, the Immigration Act 2009, the Passports Act 1992 and the Terrorism Suppression Act 2002) that provide that national security information can be taken into account by decision-makers without disclosing that information to the affected person.

5.15Closed court procedures have been established by legislation to hear appeals and reviews in cases where national security information has formed part of the decision under review or needs to be introduced at appeal or review. There are inconsistencies in approach, and new regimes have been enacted in response to particular issues rather than in a coherent and principled way, the most recent example being that contained in Schedule 4 of the Health and Safety at Work Act 2015. There are questions over whether some of these regimes provide adequate safeguards for the affected person or give the courts sufficient control over proceedings.

64Choudry v Attorney-General (No 2) [1999] 3 NZLR 399 (CA) at [12]. See also Choudry v Attorney-General (No 1) [1999] 2 NZLR 582 (CA).
65The recorded judgments do not appear to reveal any reluctance on the part of the Crown to allow the courts to view documents, nor do they suggest that the courts would tolerate this. See the speech of Lord Clarke in Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531 at [145] and [148] for an illustration of the practice that the court may inspect the documents when considering public interest immunity claims.
66Rule 83.13(2) of the United Kingdom Civil Procedure Rules.
67Criminal Procedure Act 2011, s 146.
68Section 147.