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.
7.4Having 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.