Chapter 5
Overview and summary

Policy issues and problems

5.16We consider that any reform should remove the existing ambiguity between the Evidence Act and the Crown Proceedings Act provisions so that it is clear how national security information should be dealt with by the courts. We also consider that reform should create greater consistency across the board rather than continuing the trend of a growing number of statutory regimes that deal slightly differently with national security information in proceedings.

Civil proceedings

5.17Public interest immunity needs reform for two reasons. The first is that New Zealand’s last major case dealing with this subject, Choudry, was decided in the 1990s. As discussed above, we think it is very likely that a similar case would now be decided differently. In the intervening years, practice has developed in the United Kingdom, and Choudry is not consistent with the current approach of the United Kingdom courts. In addition the enactment in New Zealand of section 70 of the Evidence Act gives judges more scope to examine a claim that information should be withheld on national security grounds. The uncertainty over how to reconcile the certificate process under section 27 with the newer provisions in the Evidence Act needs to be resolved.

5.18The applicable procedure for assessing and challenging claims of public interest immunity and the roles of the government and the courts in deciding whether disclosure of sensitive information is possible are not clear enough. The criteria against which decisions to withhold or disclose information are to be made are also not clear and should be clarified in statute.

5.19The second reason for reforming public interest immunity is that the non-Crown party, whose rights or interests may be prejudiced by a claim for public interest immunity, has inadequate opportunity to challenge any such claim given that they cannot see the information.

5.20In addition, as we discussed in the Issues Paper, a closed procedure has been adopted in the Dotcom proceedings69 in the High Court under the inherent powers of the court and with the cooperation and consent of the parties. The use of such a procedure raises a question about whether there should be a statutory regime that sets out when this should be used and how natural justice and other important public interests should be protected.

Criminal proceedingsTop

5.21The Criminal Disclosure Act sets out a modern and robust framework for non-disclosure of national security information. However, in line with our other reforms, we suggest that there should be an ability for non-disclosure to be challenged by a special advocate rather than the claim being heard by a judge alone and determined without the benefit of arguments presented on behalf of the accused. The key problem with the current law is that the defence has too limited an ability to present arguments for disclosure, and the judge has little assistance in making his or her decision on whether information should be disclosed. In addition, better provisions for challenge should minimise over-claiming by the prosecution.

Administrative decisions affecting rightsTop

5.22Legislation contains a number of regimes that take inconsistent approaches to managing national security information. Some do not contain express protections and safeguards, such as any weighting towards open-source material that can be disclosed to the affected person. There does not always seem to be adequate oversight where national security information is being used.

5.23In relation to appeals and review by the courts of administrative decisions affecting rights, a number of differing closed court procedures have been established by legislation. Some of the regimes do not provide adequate safeguards for the affected person or give the courts sufficient control over proceedings. The recently enacted closed procedure in the Health and Safety at Work Act is an example of this concerning trend.

Issues around the definition of national security informationTop

5.24The definition of national security information and the way information that comes within that definition is then treated in proceedings have been important issues for our review. There are currently differing definitions and terminology for national security information. The information covered needs to be more clearly identified. A coherent relationship needs to be maintained between access to national security information in court proceedings and an individual’s access to that information under the Privacy Act 1993 and public access under the Official Information Act 1982.

69Dotcom v Attorney-General CIV 2012-404-001928.