Contents

Chapter 7
Administrative decisions

Introduction

7.1This chapter considers what should happen when the use of national security information in an administrative decision limits the right of the person affected to access information about how the decision was made, including for the purpose of challenging the decision in court.111 We have developed proposals that seek to protect national security information112 while also providing for a robust procedure that protects the rights of the affected party.

7.2Administrative decisions cover a diverse range of subject matter. For the purpose of the Report, we are concerned with what happens when:

(a) there is a decision that directly affects the rights of a person; and

(b) the nature of the decision is such that the affected person would ordinarily be entitled to receive the information on which the decision is based; and

(c) the information on which the decision is based includes national security information, that is, information that would prejudice national security interests if disclosed.

7.3Administrative decisions that directly affect a person’s rights are subject to sections 27(1) and 27(2) of the New Zealand Bill of Rights Act 1990 (NZBORA). Given the time pressures involved in some administrative decisions, the requirements of natural justice do not always require that persons be given the opportunity to challenge information prior to a decision being made.113 Instead, an affected person will be entitled to receive the relevant information after a decision is reached. The right to receive information used in administrative decisions is based on common law norms of fairness and natural justice (affirmed in section 27 of NZBORA) and given statutory expression under section 23 of the Official Information Act 1982114 and under Principle 6 of the Privacy Act 1993.

7.4Having received the information, the affected person is then able to challenge the decision through judicial review or an appeal if this is provided for in statute. This will provide scope for the decision to be independently tested by the courts. Depending on the nature of the court’s review, the information on which the decision was based might be subject to different degrees of scrutiny.

7.5There is therefore a tension where national security information is taken into account in administrative decisions. If disclosure of national security information could create major security risks, there will be good reason why it cannot be provided in full to the affected person, either following the initial decision or in the judicial review process. However, it is important that, despite the use of national security information, persons whose rights are affected by administrative decisions have the opportunity to challenge those decisions and to test the information relied upon.

111For the purpose of this chapter, the administrative decisions that we are concerned with are those made by a minister of the Crown or other official in the exercise of a public power that affects individual rights.
112In Chapter 5, we defined “national security information” 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.
113In our Issues Paper (Law Commission, above n 85, at [4.3]–[4.6]), we discussed how the context in which an administrative decision is made can affect the degree to which the requirements of natural justice might be derogated from or modified.
114David McGee “The OIA as a law tool” [2009] NZ L Rev 128.