Chapter 6
Civil proceedings


6.1The ability to bring civil proceedings79 against the Crown is an essential means by which citizens are able to obtain legal redress when the government has breached individual rights or has failed to comply with its legal obligations. It is in keeping with the principles of accountability and transparency that are fundamental characteristics of open democracy.
6.2A basic tenet of civil procedure in New Zealand is that the parties to a civil case, including the Crown, have access to information held by the other party that is relevant80 to their particular case.81 This chapter is concerned with how to manage situations when information that would ordinarily be disclosed to all parties in a civil case cannot be disclosed because the Crown believes that disclosing that information would be likely to prejudice national security interests. We refer to this information as “national security information” and defined it in the previous chapter.82

6.3This chapter briefly outlines the current law and the issues relating to the use of national security information in civil proceedings. It provides an overview of submissions received and comments and views shared during consultation on these topics. The chapter concludes with our recommended approach for managing the disclosure and use of national security information in civil proceedings. This approach would replace the patchwork of legislation and common law that currently applies.

79For the purposes of this chapter, “civil proceedings” is used in a broad sense and includes judicial review proceedings. This is a slightly different definition to that used in Part 1 of this Report. The approach discussed in this chapter also covers proceedings before the Employment Court and proceedings before the Human Rights Review Tribunal.
80See, for example, the definition of “standard discovery” in r 8.7 of the High Court Rules.
81As the Crown is also entitled to bring civil proceedings according to the same substantive law and procedure as a private individual, this rule applies equally to the Crown; see s 27 of the Crown Proceedings Act 1950 and A New Crown Civil Proceedings Act for New Zealand (NZLC IP35, 2014) at chs 1, 2 and 7.
82National security information is defined as information that, if disclosed, would be likely to prejudice:
  • the security or defence of New Zealand; or
  • the international relations of the Government of New Zealand; or
  • the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation.