6.7In our view, there is some doubt that the Court of Appeal’s view (expressed in 1999) of the proper role of judges in assessing claims for national security in court proceedings would necessarily preclude the courts from asking to view material to check whether it might properly fall within the bounds of the asserted privilege on a future occasion. This lack of clarity presents a real risk that, unless a procedure like the one we have suggested is adopted, New Zealand courts will be faced with the unpalatable position of either accepting an assertion of privilege without looking at the underlying material (and hence leaving the possibility of injustice to the non-Crown party); or looking at the underlying material and potentially disclosing it to avoid injustice, but without the protections of the closed procedures that we have suggested.
6.9In New Zealand, this trend is reflected in section 70 of the Evidence Act; the approach adopted by consent in the Dotcom litigation; and the approach contemplated in the Employment Court case of Zhou. There does, however, remain some uncertainty as to whether a judge has the ability to examine the information and decide if the reasons given by the government for issuing a certificate under section 27 of the Crown Proceedings Act are valid.
6.11The existence of public interest immunity provides the government with the assurance that, ultimately, it can prevent the disclosure of information it considers will threaten an important national interest if disclosed. It is a mechanism designed to avoid harm to important interests but can result in unfairness to non-Crown parties. If it is relied on by the Crown, it prevents non-Crown parties from accessing information that might potentially be relevant to their case. This arguably causes disadvantage to them due to the lack of judicial oversight into the decision to exclude information and the inability of the non-Crown party to argue or have someone argue on their behalf that the information should, in fact, be disclosed.
6.12We have been careful to ensure that any proposed approach provides the necessary assurance to the government that information can still be protected while using a procedure that adheres to the principles of open justice and natural justice and maintains public confidence in the judicial system.
6.15In the absence of legislative guidance, New Zealand courts have fashioned procedures on a case-by-case basis by relying on the consent of the parties and on the inherent or general case management powers of the court. The procedure adopted by the High Court in Dotcom is one such example.
6.17This kind of case-by-case approach has the potential to compromise predictability, fairness and public confidence in the court system. Members of the public and people embarking on legal challenges against the government should know in advance what kind of process will be followed where national security information is relevant to their case. Our concern is compounded by the rarity of such cases in New Zealand courts and the scope for the evolution of the common law in between cases.
145. I would accept the submission made by Ms Rose that the following principles correctly state the approach to PII as it has stood until now:
ii) Disclosure of documents which ought otherwise to be disclosed under CPR Part 31 may only be refused if the court concludes that the public interest which demands that the evidence be withheld outweighs the public interest in the administration of justice. iii) In making that decision, the court may inspect the documents: Science Research Council v Nassé at pp 1089-1090. This must necessarily be done in an ex parte process from which the party seeking disclosure may properly be excluded. Otherwise the very purpose of the application for PII would be defeated: see the Court of Appeal judgment at para 40.
149. [Repeating Crown counsel’s description of the certification process] After the minister has signed a PII certificate, the balance between the relevant public interests must be made by the judge. In a simple case he will hear argument on both sides and reach a conclusion, often having looked at the documents. There will be no need for special advocates. The position may be very different in a case of complexity, especially a case of great complexity such as this was or would have been but for the settlement. The judge may need assistance in order [to] carry out the balance. Such assistance will not of course be available from counsel for the non-state parties because they will not have seen the documents.