7.43Persons whose rights are affected by the decisions of a public authority have the right to bring judicial review proceedings. As discussed above, if there is no opportunity for a person subject to a decision to make representations to the decision-maker at the initial stage, judicial review becomes the primary way to ensure that the right to natural justice is met. It is an important check on administrative decision-making, giving affected persons recourse to the courts to determine whether the decision reached is reasonable.
7.44Judicial review proceedings can be seen as a subset of general civil proceedings and are governed by the rules of evidence under the Evidence Act 2006. However, the current approach to judicial review of administrative decisions where national security information is taken into account varies considerably depending on the statute under which the decision was made. We discuss this more fully in our Issues Paper National Security Information in Proceedings (IP 38) in Chapter 4.
7.46We propose that the procedural provisions setting out how closed procedures should operate across different areas of administrative appeal and review should be replaced with the system that we recommend in Chapters 5 and 6 above. It is our view that the inconsistencies in the current range of closed procedures are difficult to justify, and it would be significantly better to have a single process that applies across the different areas. We think that this process, as outlined in the previous chapters, will better protect fair hearing rights while also protecting information when disclosure is likely to create security risks. This section will explain why we prefer this approach, and how it will apply in practice.
7.47As mentioned above, administrative decisions sometimes need to be made under urgency, and at times, the stakes may be very high. Even with good faith being exercised by all involved, it is inevitable that mistakes will sometimes be made. At the initial decision-making stage, we have noted the importance of enabling officials to make decisions based on the best evidence, and we have stated that it may be reasonable and indeed necessary to rely on national security information. The difficulty is in providing for a robust review procedure that accommodates the need to protect security interests that may be prejudiced if the information is disclosed.
7.48For persons involved, the rights may be hugely significant. Removing a passport, for example, prevents a person from exercising their right to freely leave New Zealand under section 18(3) of NZBORA. While that right is subject to justifiable limitations, there should be proper recourse to test the reasonableness of such a decision. However, it is also important that the Crown be able to defend the reasonableness of the decision without risking prejudice to national security.
7.49In an application for judicial review or appeal of an administrative decision where national security is taken into account, there will almost inevitably be relevant information that the Crown seeks to withhold from the affected person on security grounds. However, it is our view that this does not in itself justify the automatic use of a closed procedure as is currently the case under the Immigration Act, Passports Act, TICSA, Terrorism Suppression Act and Health and Safety at Work Act. Instead, we suggest that the general civil model remains the best option to protect the affected person’s right to a fair trial while also ensuring that national security information is not publicly disclosed.
7.50Under our proposed model for civil proceedings, the Crown will be able to withhold information that would otherwise be discoverable if the disclosure of that information may prejudice national security interests. The other party will have received a summary after the decision was made and will also be able to challenge the Crown’s claim not to disclose. If there is a challenge, the judge may view the information and may appoint a special advocate to present arguments on behalf of the person seeking disclosure. A further summary may be prepared at this stage under the supervision of the court and taking into account submissions of the special advocate. If the information is found to be of the sort that cannot be disclosed because doing so may prejudice security interests but the exclusion of the information would cause prejudice to the proceedings, the judge may order that a closed procedure should be used for the substantive hearing. This means that the information will not be given to the person directly affected or to their lawyer but will instead be provided to a security-cleared special advocate appointed to represent their interests.
7.51The current approach (with automatic adoption of closed procedures) allows the Crown to have the benefit of using the national security information without disclosing it to the affected person. This could be unfair to the non-Crown party, who should be able to present arguments for full disclosure. We suggest that the final decision on disclosure should be made by the judge with regard to the degree of prejudice to the parties and the nature of the security interests. Under section 27(3) of NZBORA, there is a right to bring civil proceedings against the Crown and defend proceedings brought, and these proceedings must be heard according to law in the same way as proceedings between any two ordinary parties. In our view, equality of arms requires that the default position of equal access to material being put before a judge be strongly affirmed and departures from this – whether exclusion of material or a closed procedure – be reserved for cases where it is necessary. In particular, where the material assists the Crown, we consider that it is important for the Crown to separately present the case for protection of information in proceedings (that the material not be given to the affected party) and use of information in proceedings (that the information be taken into account by the judge in determining the case).
7.52Under our model, the judge will need to consider first whether national security interests justify withholding information from a party who would otherwise be entitled to receive it and, second, whether the information should still be used in the proceedings despite being withheld from the party. In relation to the first question, we would expect that the judge would give significant weight to the view of the Crown, given their expertise in areas of national security. However, in relation to the second question, the interests of justice require that the judge consider the Crown’s position and the position of the non-Crown party and the degree of prejudice to each if the information is either excluded from the proceedings or admitted in a closed hearing that the non-Crown party does not attend. The public interest in open justice should also be taken into account. The High Court and the Immigration and Protection Tribunal would have the ability to make orders for protection that do not go so far as full exclusion, for example, redacting material that identifies particular sources or means of surveillance but allowing the substantive allegations to be released in open proceedings.
7.53In some cases, the use of closed procedures may be the best way of ensuring that the information is protected and the case can be heard fairly. We envisage that a closed procedure would be used where there would be significant security risks of disclosing the information to the affected party and where the proceedings cannot be fairly determined without examining the secure materials. In such a case, the use of a closed procedure may provide the only way to meaningfully review the decision.
7.54We have considered the alternative of retaining the automatic use of a closed procedure in areas where this is the status quo. We have reached the view that this approach has several disadvantages. In particular, our consultation and research has led us to the view that, in order to properly protect the fair hearing rights of the non-Crown party, a special advocate should be able to present arguments for the disclosure of information. The Crown should have to justify use of a closed procedure in a given case. Requiring closed procedures for a class of cases under a particular statute does not give due recognition for the important rights at stake, including under section 27 of NZBORA, and the importance of open justice in our legal system.
7.55A further rationale for a single approach is that this will assist in the development of case law given the likely rarity of cases that raise these issues. It will avoid the ongoing fragmentary introduction of closed hearing provisions in new legislation. As yet, none of the existing statutory schemes have been tested. We are of the view that there is no advantage in retaining disparate approaches when the key issue of how best to reconcile fair trial rights and protection of information applies in a range of areas. We see our suggested model outlined in Chapter 5 and 6 as a template that should be applied whenever this issue arises. Any departures from our approach, for example, under the Immigration Act to reflect the jurisdiction of the specialist Tribunal or under TICSA to reflect the role of security-cleared employees of affected operators, should be limited to matters that can be applied consistently with the overall policy approach we suggest.