5.36The Commission accepts that there are going to be some situations where the protection of national security justifies the withholding of information because disclosure in the usual way could have a serious adverse impact on New Zealand, its people or people overseas. The difficulty we are grappling with is what to do where information genuinely cannot be disclosed, but that information is or may be relevant to an issue in civil or criminal proceedings or relevant to an administrative decision affecting a person’s rights and any challenge to that decision. There are two components of this issue – how to decide whether the information meets this standard and what process to adopt when it does.
5.37In relation to the second question, we have considered two ways of proceeding. The first, which is the current approach in civil and criminal proceedings, is to withhold the information and exclude it completely from consideration in the proceedings. Whether the proceedings can then fairly continue without a portion of the relevant evidence being submitted to the decision-maker will depend on the nature of the proceedings and the facts of the case.
5.38The alternative approach is to design some form of closed procedure that allows the decision-maker to view information that is withheld from the affected person. This must be done in a way that affords protection to national security interests while also upholding other interests including procedural fairness. However, as was explored in some depth in the Issues Paper, closed procedures, at least during the determinative or substantive proceedings, can really only offer what is generally accepted to be a second-best solution in terms of natural justice and open justice. When used during the pre-trial or preliminary stages to determine how information should be managed, they are less of a concern.
5.39A distinction should be made between using a closed procedure during the preliminary or pre-trial phase and during a substantive hearing. During the preliminary phase, a closed procedure ensures that the information in question is properly protected while the court assesses whether it is relevant and what threat disclosure of the information may pose to security interests. At this preliminary stage, the court is considering how to best protect the information and manage the disclosure process. A closed procedure must be adopted at this preliminary stage to protect the information until there has been a determination on whether it should be disclosed to the other party. This same type of approach is taken in respect of other types of confidential information or information that one party claims is privileged. We see it as acceptable to preserve secrecy and not disclose the information to the other party at this stage of proceedings as long as the party’s interests are represented by a special advocate.
5.40However, when closed procedures are used for substantive hearings, information is being taken into account by the court in determining the issues in dispute without that material being made available to the other side. This is a major departure from ordinary court processes. The use of special advocates during closed procedures to represent the excluded party’s interests at the substantive hearing stage only partially ameliorates the unfairness of proceedings where one party is denied full disclosure of the other party’s case. Under normal conditions, this would not be tolerated in our courts.
5.41In the Issues Paper, National Security Information in Proceedings, we said that closed procedures should be considered as a way of dealing with national security information in some civil proceedings as well as in review and appeal proceedings under the statutory regimes discussed earlier. However, the paper advocated a cautious approach to the use of closed procedures for substantive hearings and noted the need to guard against the risk that a legislative scheme starts to normalise the use of closed procedures. Closed procedures should not become the default simply because there are national security claims.
5.42In the Issues Paper, we also stressed that the threshold for triggering such closed procedures, if they are available, needs to be set relatively high because they represent a departure from the normal standards of natural justice. The underpinning principle must be to facilitate the greatest degree of disclosure and openness that is consistent with the nature and magnitude of the national security interests at stake. The approach taken in any case should depend on the risks associated with disclosure of information itself and also on the importance of the rights or interests being determined.
5.43In relation to criminal proceedings, the Commission said in the Issues Paper that it did not consider that closed procedures for the substantive trial (where evidence is presented to the court) without either the defendant or their counsel present could be reconciled with the right to a fair trial and should therefore not be used at all. We stressed that the right to a fair trial must be upheld and said that we considered that risks to national security would have to be managed by existing extraordinary measures, such as judges clearing the court or making use of suppression powers. Where the risk to national security was too high to manage using those methods, we considered that the material must be withheld and not relied on as evidence.
5.44The submissions received and the consultation undertaken firmed up the Commission’s preliminary views set out in the Issues Paper. We discuss submissions in some detail later in Appendix 3. We have decided to recommend that closed procedures should have a very limited role in civil and administrative proceedings and should not be introduced for substantive hearings in criminal proceedings. They should only be used when the risks of disclosure justify the departure from ordinary processes and there is no other way to both protect the information and fairly hear the matter before the courts.
5.45Our overall approach to reform is to minimise the use of national security information in proceedings where this cannot be disclosed to the other party or managed using existing procedures. Closed procedures will need to be used during the preliminary stage of hearings to protect information that the Crown claims will prejudice national security while the court determines how to proceed. Closed procedures should only be adopted for substantive hearings in civil proceedings and administrative appeals when the information is so relevant that the proceedings could not be justly determined without it and security interests mean it cannot be disclosed to the non-Crown party.
5.46In the Issues Paper, we suggested a narrow definition of “national security information” that precisely identified what types of security interests should be sufficient to displace the normal assumption that relevant information is disclosed to the affected parties. We also considered that, within each type of interest, there might be different levels of seriousness and that the degree of prejudice is therefore also relevant.
5.47However, after considering submissions and the views expressed at consultation meetings, we have been persuaded that a slightly broader definition of national security information drawn from section 6 of the Official Information Act would be better. It is still narrow in the sense of identifying the specific interests that may be prejudiced but is not limited to any particular kinds of information that may come within the definition. National security information should be defined to mean information that, if disclosed, would be likely to prejudice:
5.48The approach we are taking means that the magnitude and nature of the potential prejudice is not incorporated into the definition but will be considered by the court when determining how the national security information is to be managed in proceedings. The definition functions to identify the ambit of the information that will need to be carefully considered and managed through court proceedings. Determining that information comes within the definition does not mean that it can never be disclosed. The court must then consider the nature of the information and the seriousness of the prejudice that might occur to an interest when making decisions about the disclosure, exclusion and use of national security information.
5.49The parties will undertake a normal discovery process during which the Crown will identify national security information that it does not want to disclose because of the risk this would pose to New Zealand’s security interests. Typically as part of the normal discovery process, the other parties to the litigation will be provided with a list of relevant information held by the Crown. The list will, in the usual way, identify the national security information and the basis (prejudice to national security) for non-disclosure along with other categories of sensitive or privileged information the Crown wishes to withhold.
5.50Under the recommended reforms, the non-Crown party would be able to challenge the non-disclosure of the information the Crown claims is national security information. The first stage would be a preliminary hearing on the non-disclosure of the information. It would be a closed hearing, and the non-Crown party would be represented by a security-cleared special advocate. The non-Crown party and their counsel would be excluded from the closed portion of preliminary proceedings over discovery. The court would consider whether the information falls within the definition of national security information. They would then consider whether the security risks it poses justify non-disclosure when balanced against the interest of the non-Crown party in receiving the information. If the Crown satisfies the court that the information cannot be disclosed to the non-Crown party, the enquiry turns to the question of whether the information can fairly be excluded from proceedings or whether a closed procedure should be used during the substantive hearing to deal with the information.
5.51At this second stage, the court determines whether to order the use of a closed procedure for part of the substantive hearing. The court should only order that part of the substantive hearing be closed where it is satisfied that the national security information is sufficiently relevant to the proceedings that it is in the interests of justice to use a closed procedure rather than to exclude the information and have the case proceed without it. Although a closed procedure would be available in cases where the national security information was beneficial to the Crown’s case, the interests of justice test will be much harder for the Crown to satisfy because it is seeking to withhold information from the other party but also use it against them. In some cases where the Crown is defending an action, the courts may consider that this is appropriate, but we would anticipate this would be quite rare. It is more likely that a closed procedure would be in the interests of justice where it would prejudice the non-Crown party if the court excluded the national security information.
5.52The closed procedure would be used for any preliminary hearing involving claims of national security information. If the judge so determines, it could also be used in a substantive hearing as outlined above. During a preliminary hearing on disclosure and on whether a closed procedure should be used for part of the case, the court would hear from the Crown and also from the special advocate representing the non-Crown party, who would have access to the national security information under secure conditions that ensured it was properly protected. The court would also have access to the information under secure conditions.
5.53The main features of a closed procedure are as follows:
5.54In cases where the court, at the preliminary hearing, orders that part of the substantive hearing must also be under closed procedure, the approach outlined above would continue.
5.55In applications for judicial review or appeals of administrative decisions where national security was taken into account, there will inevitably be relevant information that the Crown seeks to withhold from the affected person on security grounds. We do not believe that this requires the automatic use of a closed procedure. Instead, we recommend that the approach above for civil proceedings should apply. This is the best option for protecting the affected person’s right to a fair hearing while also ensuring that security information is not publicly disclosed.
5.56The automatic adoption of a closed procedure under current statutory regimes allows the Crown to have the benefit of using the information without disclosing it to the affected person. We propose instead that the decision of how to protect information should be made by the judge with regard to the degree of prejudice to the parties and the nature of the security interests. The court would also have the ability to make orders for protection that do not go so far as full exclusion, for example, redacting material that identifies particular sources or means of surveillance but allowing the substantive allegations to be released in open proceedings.
5.57In some cases, the use of a closed procedure may be the best way of ensuring that the information is protected and the case can be heard fairly. We envisage that a closed procedure would be used where there would be significant security risks of disclosing the information to the affected party and where the proceedings cannot be fairly determined without examining the secure materials.
5.58The approach in respect of criminal proceedings should continue to be that set out in the Criminal Disclosure Act. This differs from the approach outlined above for civil proceedings in one important respect. Information that has not been disclosed to the defence must not be used against the defendant to prove a charge. We consider that the use of closed procedures in criminal trials cannot be justified, and the prejudice to the accused would always be too great to countenance this option.
5.59However, we recommend that the Criminal Disclosure Act be amended to provide for the use of special advocates in the pre-trial stages to assist the judge in determining whether information should be withheld. The special advocate would represent the interests of the defendant, who would be excluded from the part of the preliminary hearing that deals with the national security information. As with civil proceedings, the special advocate could view the national security information and then, if there are grounds, challenge the claim for non-disclosure. The court would benefit from having this type of assistance from a lawyer representing the defence perspective when trying to assess the material. It would help address any risk of over-claiming on national security grounds and could lead to more information being disclosed and better evidence being available for the substantive hearing. If non-disclosure was justified on national security grounds, the special advocate could help protect the defendant’s interests by presenting arguments about any prejudicial effect non-disclosure has on the defence and particularly whether a fair trial remains available. This would assist the court in making its assessment.
5.60We also recommend a new provision in the Evidence Act to introduce anonymity protections for sources who provide information on matters of national security and for intelligence officers working for New Zealand or international intelligence agencies. This will be an important tool for ensuring that national security interests are protected while enabling those involved with the security and intelligence agencies to give evidence in open court. Although this reform will probably be of most relevance in criminal proceedings, we consider that protections for intelligence officers and sources may be required in proceedings other than criminal, for example, in the review of administrative decisions, and that the new provision should therefore apply more generally to all proceedings.
5.61We recommend that, where a warrant is obtained on the basis of national security information, a secure hearing should be available if it is later challenged. We understand that, in some situations, judges in the High Court do currently appoint counsel to assist the court when dealing with reviews of warrants where material is not disclosed. Our recommendation would formalise this arrangement in respect of national security information and make it clear that a special advocate should be used.
5.62We have also considered whether reform is required in administrative decisions that affect a person’s rights where the person affected is unable to have access to national security information taken into account in making the decision. We have identified two areas for reform. First, we suggest that, if an individual would otherwise be entitled to receive information taken into account in a decision that affects their rights but for the fact that the information must be withheld for security reasons, the individual should be entitled to receive instead a summary of the information. The summary serves the purpose of providing the affected person with straightforward and prompt access to the information about why the decision was made. The Passports Act, Telecommunications (Interception Capability and Security) Act 2013 and Terrorism Suppression Act would need to be amended to give effect to this reform.
5.64We consider that both of these requirements are necessary to minimise the degree of prejudice to the affected party that results from the security information being withheld.
5.65We recommend that the role of the special advocate in any closed procedure should be to advocate vigorously for the interests of the excluded non-Crown party. Their role during the preliminary stages would be one of arguing for greater disclosure to the affected party and/or the party’s lawyer. The advocate would help identify whether some of the information for which protection is claimed could be released to the affected party. The appointed special advocate should have full access to all national security information at issue in the case and should be under a statutory obligation to keep that material confidential and not disclose it, except as expressly permitted under the regime. After the special advocate has been given access to the national security information, there would be restrictions on their communication with the non-Crown party or the party’s lawyer.
5.67We have recommended having a reasonably large and broad panel of security-cleared lawyers that can act as special advocates in any proceedings. Given the complex and difficult nature of the role, we think that it is important that senior and experienced counsel be available on the special advocate panel. We consider that the special advocate must be given meaningful support to do their job; legal, technical and administrative. There is a need to ensure that the support is both competent and sufficiently independent. Meaningful legal support might be best provided by having available junior counsel who can be security-cleared and can be appointed to provide such support to the special advocate.
5.68We recommend that all cases involving national security information should, with some specific exceptions discussed in Chapter 9, be heard in High Court. We do not think it necessary to security clear judges and acknowledge problems in doing so. A proper separation between the branches of government and the independence of judicial officers must be maintained. Limiting cases to the High Court ensures that only a small group of senior judges will hear these cases and this would allow expertise to develop.
5.69The terms of reference preclude the Commission from making recommendations with respect to purely operational matters, including funding and administrative arrangements to institute an appropriate system for protecting sensitive security information in proceedings. We have therefore not made any recommendations in respect of facilities. However, we do observe that the courts hearing cases do need to have access to appropriate secure facilities to deal with and store secure material. We also consider that, to maintain the proper separation between branches of government, it is important that the necessary secure facilities and services are provided within the court system administered through the Ministry of Justice. This would ensure there is sufficient separation from the security and intelligence agencies.