Contents

Chapter 6
Civil proceedings

Other options that were considered by the Commission but not recommended

6.60Our recommendations for managing national security information in proceedings have been developed with a view to ensuring that national security information will be protected. The recommended approach provides a range of judicial tools for protecting information, such as excluding it from the proceedings or only disclosing it in a closed procedure involving security-cleared special advocates and secure courtrooms. The court will have a supervisory role in determining that information has been properly identified by the Crown as national security information and in determining how it should be protected. This will be based on submissions from the Crown and a special advocate representing the non-Crown party.

6.61Under our recommended model, it is theoretically possible that the court may order disclosure of information in open court despite the Crown’s assessment that this will create risks to national security. If such an instance were to occur, ordinary appeal rights would be available. However, we consider it highly unlikely that the court would allow material to be disclosed where this would present any significant security risks. The purpose of the court’s supervision is to ensure the Crown’s claim is properly made, not to cut across the long-recognised need to protect national security.

6.62Despite the safeguard of an appeal and the safeguards built into the statutory tests we recommend, the Crown may want some kind of assurance that certain types of information will under no conditions be disclosed in court. This desire for absolute assurance may especially arise where there are commitments of confidence to foreign intelligence partners. The Crown may also be concerned about the inadvertent disclosure of information. In some circumstances, the Crown may consider the consequences of disclosure would be so detrimental to national security that additional protection is needed.

6.63In developing our recommended approach, we have been mindful of these concerns. In addition to our recommended approach, we have examined options that might provide the Crown with a greater level of assurance that information will always be protected. There are many variations on how this assurance could be provided. In broad terms, it could involve the Crown requiring at the outset that information either be completely withheld or heard only in closed procedures, or it could involve a backstop veto by the Crown after the court has made an assessment that information can be disclosed in open court (in which the veto would require information to be withheld or heard only in a closed procedure). Within these broad options, there are some significant questions of policy detail. For example, if the Crown considers that information cannot be disclosed openly, should they be able to choose between withholding information and a closed procedure or should this decision be left to the courts? What level of threat to national security interests would justify the use of the Crown’s power to withhold information or require it to be heard only in closed procedures? To what extent is the Crown’s decision reviewable?

6.64Because our recommended approach is for the courts to control how information is protected in accordance with new statutory criteria, we do not seek to answer all the detailed questions around how additional assurance for the Crown could work in New Zealand. Instead, in this section, we briefly outline three other possible options and examine how these might operate in practice. These alternatives are being presented for completeness and to inform public debate. They each provide for a greater degree of Crown control over the use of national security information in proceedings and are sufficiently distinct from each other to allow them to be debated both in terms of workability and principle.

6.65The first alternative is for the Crown to be able to require a closed procedure. The second is for the Crown to require that information not be disclosed in proceedings at all. Both these alternatives would apply at the outset and would prevent the court from considering how information should be dealt with in the case at hand. We note that it would be possible to combine these two alternatives, such that the Crown could decide either to require closed procedures or to require information not be disclosed, but that this would give the Crown a significant procedural advantage. The third alternative is for the court to first make the decision (as with our recommended approach) but with a backstop of an executive veto whereby the Crown can direct the court to decide between withholding the information and admitting it to closed procedures, precluding full disclosure or the use of any other protective mechanisms.

Alternatives 1 and 2: Crown ability to require protection at the outset

6.66Under Alternative 1, the Crown would be able to require that information be heard under a closed procedure. Unlike our recommended approach, the court would not be able to order disclosure to the other party or order other ways of protecting information. New legislation would need to give the Crown the ability to require the substantive hearing to be held under a closed procedure in whole or part.

6.67Under Alternative 2, the Crown would be able to require that information be withheld completely. Under this option, the Crown would be able to issue a certificate and exclude material from proceedings. If a certificate was issued, then the information would not be put before the court. This goes a step further than Alternative 1 because it retains a form of public interest immunity certificate that allows the Crown to prevent information being disclosed.

6.68The Crown’s power to require closed procedures under Alternative 1 or to withhold information under Alternative 2 would be exercised before a case begins, so the court will have no opportunity to make orders as to how information should be protected.

Alternative 1: Crown-initiated closed procedure

6.69This option provides the Crown with the ability to initiate a closed procedure, providing assurance that information will not be disclosed in open court. The option therefore addresses any potential Crown concern that the courts may err in deciding that the disclosure of national security information in open court does not raise security risks or deciding that the prejudice arising from disclosing the information can be adequately addressed by alternative mechanisms such as suppression orders or witness anonymity.

6.70This approach would give the Crown confidence that national security information can always be treated in accordance with security protocols. Under a closed procedure, information would be stored and viewed in a secure facility and only seen by the presiding judge and by the special advocate representing the excluded non-Crown party’s interests. Only court staff with the necessary level of security clearance would be able to manage the information within the court system. Under this option, the judge would still be able to review the information and the special advocate would also have access to it. The non-Crown party represented by the special advocate would also normally be provided with a summary of the national security information (insofar as this does not itself prejudice national security).

6.71The judge would retain the power to exclude any information if, despite the appointment of a special advocate, the judge is not satisfied that dealing with that information in closed procedure provides a fair hearing for the non-Crown party.

6.72We are concerned that, under this option, closed procedures could become more frequent and therefore may become normalised. The fear is that the Crown might develop a practice whereby a closed substantive hearing is held as a matter of course whenever national security information is at issue. This would effectively deprive the court of the power to decide whether information is national security information, whether it should be excluded and how the national security information should ultimately be used in the proceedings.

Alternative 2: A Crown certificate excluding information from proceedings

6.73Alternative 2 would address concerns that there is a limited class of information that should not ever be included in court proceedings, even if highly relevant and even if the proceedings are held in closed court, because the risks of disclosure are too significant.

6.74This option could possibly co-exist with our recommended approach, although there would be tensions. In the majority of cases involving national security information, our recommended approach would apply, and the courts would test any Crown claim that information was national security information. The courts would, in these cases, decide on the best way to protect the information in accordance with the interests of justice in the proceedings. However, the Crown would have a power to issue a certificate excluding any information from proceedings. Therefore, in those rare cases where the Crown considers that the risk of disclosure is just too significant, it would issue a certificate to prevent the information from being considered further in the proceedings (including under a closed procedure).

6.75Under this option, we think that the kinds of information that could be excluded by a Crown certificate would need to be much narrower than those currently allowed for under section 27(3) of the Crown Proceedings Act. Section 27(3) of the Crown Proceedings Act would be repealed and replaced with a new section that would provide for the issuing of certificates on quite narrow and specific grounds.

6.76This option would achieve the purpose of assuring the Crown that the most highly sensitive national security information could be withheld. However, this assurance comes at a significant cost. The certificate process could be unfair to the non-Crown party on occasion as they may be denied access to information that was relevant to their case and possibly supportive of it. They are also denied the opportunity to have a special advocate review the information and advocate on their behalf.

Alternatives 1 and 2: Safeguards and workability

6.77Both Alternatives 1 and 2 constrain the role of the court in deciding how proceedings should be managed and what evidence should be admitted. Although neither alternative could preclude the courts from ruling on the lawfulness of the Crown’s exercise of the power in question,105 the courts’ ability to review would be limited to this narrow question. A conclusive power would need to be explicitly stated in the legislation. The provision would need to clearly say that the court’s normal powers of review were limited and that the court was precluded from going behind the Crown’s decision and from viewing the information concerned. Under Alternative 2, information is withheld completely, so if a certificate issued under this model is not to be reviewable by the courts, the legislation would need to expressly state that the court could not order that the information be disclosed or put before the court even under a closed procedure.

6.78Consideration should therefore be given to imposing some other safeguards, and these should be clearly incorporated into the enabling provisions. At a minimum, these would probably need to include the following:

6.79An enhanced test of national security information could identify a higher level of risk to security interests than is captured in the broad definition recommended throughout this Report. In our recommended approach, we have chosen a definition that is likely to capture a range of national security information, some of which could be properly protected while also being admitted in open proceedings, for example, through redaction of sensitive passages in a document. If the court was precluded from considering these options, it would follow that the definition of national security information should be narrow enough to identify the smaller subset of national security information where non-disclosure or a closed procedure is justified. Without an enhanced test, the Crown would end up having a broad power and could require any proceeding involving national security information to go into a closed procedure.

6.80We considered whether an enhanced national security test could be based around particular kinds of information, such as the identity of sources or particular technology. However, in the end, we saw too many difficulties with listing types of information. A list of types of information would either end up being too narrow to cover all possibilities or would become too broad to create a meaningful threshold. An enhanced test would therefore need to be based on the degree of risk and the importance of the security interests in question.

6.81If, following the issue of a certificate, a case was to proceed without the information, then it will do so under the fiction that the information did not exist. This runs the risk of significant injustice in situations where the information was relevant to the proceedings and may have altered the outcome. Although the court’s normal powers of review would be limited under Alternative 2, the courts would still ultimately determine whether it would be in the interests of justice for the proceedings to continue after a certificate excluding potential evidence had been issued.

Alternative 3: Crown override to require national security information to be excluded or heard in a closed procedure Top

6.82Under this third alternative, the Crown would be able to override the decision of the court in any case where the Crown considers that the orders the court has made allow information to be disclosed in a way that prejudices national security. This executive override option, which is based on the Canadian approach, was discussed in some detail in Chapter 6 of the Issues Paper National Security Information in Proceedings (IP 38).106 It differs from Alternatives 1 and 2 in that it could only be exercised following the court’s assessment under our recommended approach.

6.83Under this option, the court determines the Crown’s initial claim for non-disclosure and decides whether information should be withheld, disclosed or heard in a closed procedure. The Crown, for example, through the Prime Minister or the Attorney-General, would have a statutory power to override the court’s decision if it believes that disclosure would prejudice national security. The decision to override the court order would only be reviewable on very narrow grounds, for instance, that the information was not within a defined class of information.

6.84A similar model is provided for in the Canada Evidence Act 1985.107 Under the Canadian approach, the matter is first considered by a Federal Court judge.108 The judge applies a public interest balancing test to determine if the information should be disclosed in full, partially disclosed or disclosed in a summarised form. The case is then returned to the court of origin for the substantive case to be heard. At this point, the Attorney General could decide to override the Federal Court’s decision and provide a certificate setting out the terms on which information may and may not be used.109 The exercise of the override power is only reviewable on very narrow grounds that the information to which the certificate relates does not fall within the defined scope. Crucially, the review power does not extend to the merits of the decision to issue the certificate.110

6.85The decision to override a decision of the court would be very public and capable of review, albeit on narrow grounds. Reasons would need to be given for the exercise of the veto power. This kind of model would give Crown the assurance that it could prevent the disclosure of certain information in exceptional circumstances.

6.86To our knowledge, the power has never been exercised in Canada. This demonstrates perhaps that concern about the courts allowing disclosure when information should be protected is unfounded. It could also be seen to demonstrate that the political costs of the override are significant. The constitutional implications that would arise from exercising the power mean that, although it is a theoretical possibility, it does not need to be used because the courts and the executive adopt positions of mutual deference and do not force the issue. Some may consider that this is a reason in favour of this approach.

Alternative 3: Safeguards and workability

6.87Like the other two options discussed above, the override option restricts the judiciary’s constitutional role of supervising the exercise of executive power. An approach like this does not sit comfortably with New Zealand’s constitutional arrangements. Crucially, Canadian courts have the power to review any legislation and strike down provisions that are inconsistent with the Canadian Charter, while New Zealand courts have no equivalent power.

6.88In Canada, the veto certificate is reviewable on very narrow grounds. We suggest this is an important safeguard. The reporting safeguards and enhanced security test that we outlined above for Alternatives 1 and 2 should also apply. An additional safeguard would be to provide that the courts retain the power to decide whether information should be excluded from proceedings or considered in a closed procedure if the information is subject to a disclosure veto. The Crown should not be in a position of choosing between withholding information and using it in a closed procedure, as this would give them the ability to choose the more procedurally advantageous option.

ConclusionTop

6.89Any option that allows the executive to determine whether information should be excluded from proceedings or heard only in a closed procedure is difficult to reconcile with the rule of law. All the alternatives discussed in this section impede the courts in the exercise of their function of determining how proceedings should be heard to ensure all parties have a fair hearing. They instead give one party to the proceeding power to determine how those proceedings are heard. We have difficulty understanding why such powers would be necessary or in what types of contexts they would ever be used. We are confident that the courts will use the power to withhold information or initiate a closed procedure appropriately to ensure that information is protected when disclosure would pose a risk to security interests.

6.90As we have discussed throughout this Report, the non-Crown party is at a disadvantage in a closed procedure because they do not get to see all the evidence that will be before the court. The appointment of a special advocate helps mitigate the disadvantage to the non-Crown party but does not remove it completely. Disadvantage to the non-Crown party is also an issue when information is withheld, as this potentially limits the ability of the other party to argue their case based on all relevant material. We therefore consider that it is necessary for the judge to ultimately determine that it is in the interests of justice to withhold information or hear a case under a closed procedure.

6.91The courts can be expected to exercise responsible judgement in relation to national security information, and we see no reason why the recommended approach would be applied in such a way as to create security risks. In practice, we consider that, under our recommended model, the court would almost inevitably order that information be heard in a closed procedure where full disclosure would cause significant prejudice to protected interests.

6.92We consider that our recommended approach therefore provides sufficient assurance to the Crown that national security information will continue to be protected, especially where it is particularly sensitive. We are satisfied that our recommended approach is the best model for reform.

105Fitzgerald v Muldoon [1976] 2 NZLR 615 at 622. Here, the Court made a declaration that the public announcement by the Prime Minister made in the course of his official duties as Prime Minister had been made “by regall authority” within the meaning of that expression where it occurs in s 1 of the Bill of Rights Act (1688). The Bill of Rights Act (1688) provides that suspending any laws by regall authority without consent of Parliament is illegal.
106Law Commission, above n 85, at [6.28].
107Canada Evidence Act RSC 1985 c C-5, s 38.13. The Canadian approach is discussed in more detail in [6.29]–[6.31] of our Issues Paper (see Law Commission, above n 85).
108The Federal Court judge that determines the disclosure issues will be different from the judge that determines the substantive case.
109Canada Evidence Act RSC c C-5, s 38.13(5): “If the Attorney General of Canada issues a certificate, then, notwithstanding any other provision of this Act, disclosure of the information shall be prohibited in accordance with the terms of the certificate.”
110Canada Evidence Act RSC c C-5, s 38.131.