Contents

Chapter 7
Administrative decisions

Suggestions for reform: initial stage of decision-making

7.18We consider that there are three key areas for reform that can be applied to all administrative decisions at the initial decision-making stage where the decision affects rights protected under NZBORA.

7.19The first is to require a summary of information to be provided after a decision is made if the complete information is being withheld for security reasons. We note that, for decisions under TICSA, the summary will only be required for smaller network operators who do not have security-cleared employees able to receive the full information. This reform would not need to apply to decisions under the Immigration Act given that a summary is already provided for under that Act if “classified information” is to be relied on.

7.20The second reform is to require that an affected person be informed of their right to complain to the Inspector-General of Intelligence and Security. As the Immigration Act precludes the right of complaint, this would not apply to decisions made under that Act. We consider that, given the ability under TICSA for network operators to have decisions reviewed by an independent panel,119 it is also unnecessary to notify affected network operators of the availability of Inspector-General review.

7.21Finally, we also suggest that the Inspector-General be notified of administrative decisions that affect individual rights where information that informs the decision is prepared by the security and intelligence agencies. Unlike the other two reforms, this would apply to decisions under the Immigration Act.

7.22We consider that these requirements of provision of summary and notification of review avenues are necessary to minimise the degree of prejudice to the affected party that results from the national security information being withheld.

Provision of summarised information

7.23If a person would be entitled to receive information taken into account in a decision that affects their rights but for the fact that the information must be withheld for security reasons, the person should be entitled to receive instead a summary of the information.

7.24The purpose of the summary is to provide the affected person with straightforward and prompt access to the information about why the decision was made. This is necessary as a matter of principle, based on natural justice and the rights of a person to access information relevant to themselves.

7.25Under the current law, there is a general expectation that persons whose rights are affected by administrative decisions should have access to information about those decisions. Section 23 of the Official Information Act creates a right of access by a person to reasons for decisions affecting that person. This right is expressly subject to the non-disclosure grounds in section 6(a)–(d) of the Official Information Act, which include matters of national security. In addition, Principle 6 of the Privacy Act establishes the right for people to access information about themselves held by government agencies. However, under section 27 of that Act, an agency may refuse to disclose information that would prejudice national security. In their submission on this review, the Privacy Commission said that Principle 6 is a:

... foundational right which has been described by the Court of Appeal as being of “constitutional significance”. It is the one privacy principle that creates a legal and enforceable right as against public sector agencies. It is also one of the two privacy principles where a breach amounts to an “interference with privacy” regardless of the level of harm sustained by the affected individual. [footnotes omitted]

7.26In our view, the provision of a summary of information is a necessary protection where information cannot be disclosed in full. We are concerned that, in some areas, the level of information provided to affected persons is not sufficient for them to be able to assess whether there may be grounds for challenge. We acknowledge that national security interests can justify limiting the right to access information, yet we consider that, in order to be a proportionate limit, the right should still be given effect as far as possible, such as through a summary. Because administrative decision-making generally relies on review and does not give the affected person an opportunity to challenge information before it is taken into account, it becomes imperative for the information to be provided after the decision. When full disclosure may create a security risk, a summary is the next-best alternative. Without a summary of information, the person has no way of knowing what information was used against them and whether this information is balanced and reliable.

7.27We acknowledge that creating a summary may be difficult. It may require careful selection of material, and inevitably, there will be gaps, as sensitive information will be excluded or communicated in general terms. Because of this difficulty, we do not suggest any criteria or standard for the summary. However, as we develop further in the next section, the Inspector-General has the power to review and suggest amendments to the summary if, in their view, further information could be included without creating undue security risks.

7.28As we mention above, the Immigration Act currently requires that a summary be prepared where “classified information” is used. The provisions in sections 37 – 39 of the Immigration Act go further than our proposed reforms, as they require the summary of information to be provided to the affected person for comment before a decision is made. We consider that this requirement should not be applied across the board due to possible time pressures in some administrative decisions. Under our proposed reforms, the Passports Act, the Terrorism Suppression Act and TICSA will all need to be amended to introduce provisions requiring a summary of information to be provided.120 We suggest that section 39 of the Immigration Act could be a useful model for reform. This section requires that reasons must be given when a prejudicial decision is made on the basis of “classified information” and must “contain the information required under section 23 of the Official Information Act 1982 as if the reasons were given in response to a request to which that section applies”.

7.29Under the Immigration Act, the summary is agreed between the chief executive of the relevant agency and the Minister or the refugee and protection officer concerned. We suggest a similar approach could be used in other areas of administrative law. In particular, it will usually be necessary for security and intelligence agencies to have a role in preparing the summary.

7.30Finally, we note that there is also a practical case in favour of requiring a summary of non-disclosed information. As discussed above, in principle, the summary better enables the affected party to challenge the decision. In practice, however, the provision of comprehensive summaries should ensure that affected parties do not waste time and money pursuing fruitless review or initiating review proceedings as a means of getting the information about their case. This is an especially desirable outcome given that review mechanisms where national security information is taken into account will be more complicated than in an ordinary case.

Review by Inspector-General of Intelligence and SecurityTop

7.31The second element of our reforms directed at the initial decision-making stage relates to the ability of the Inspector-General of Intelligence and Security to review the use of security information in certain administrative decisions.

7.32Except in respect of decisions where section 42 of the Immigration Act limits the right,121 a person already has a right of complaint to the Inspector-General about how the security and intelligence agencies act when providing information to a decision-maker where rights are being determined. Section 11(b) of the Inspector-General of Intelligence and Security Act 1996 provides that one of the functions of the Inspector-General is to inquire into complaints by any New Zealand person that they have been “adversely affected by any act, omission, practice, policy, or procedure of an intelligence and security agency”. This is broad enough to include complaints about the way in which the security and intelligence agencies have presented information to a decision-maker resulting in a decision that adversely affected the person, for example, if the information was not balanced.

7.33Under this review model, the role of the Inspector-General is to scrutinise the information prepared by the intelligence and security agencies and presented to the decision-maker and the conduct of the agency in doing so. The Inspector General’s role is not to review the actions of the decision-maker. That is the role of the courts in a judicial review or an appeal. It is, however, fitting for the Inspector-General to supervise how the security and intelligence agencies gather and assemble information for decision-makers to take into account when determining a person’s rights.

7.34We have considered whether the review should be automatic rather than available only on the request of the affected party. We have decided that an automatic review is not necessary but that, when a person is notified of the decision affecting their rights, they should also be told that they have a right to complain to the Inspector-General. Drawing a person’s attention to their right of complaint will provide an additional measure of accountability for the agencies presenting the secure information to decision-makers and additional protection for the affected person.

7.35The review by the Inspector-General will be able to consider whether the security information is:

(a) properly classified as secure information;

(b) balanced and complete such that information advantageous to the affected person is included where relevant and any appropriate qualifiers that might influence the decision-maker’s views on reliability are included; and

(c) provided to the affected person through a summary that contains as much detail as possible, subject to the need to protect the secure information.

7.36The Inspector-General would be able to issue any recommendations consistent with the powers under the Inspector-General of Intelligence and Security Act, including recommending that more information be disclosed in a revised summary, recommending that the decision-maker be notified if revisions are required to the information initially presented to the decision-maker and issuing an unclassified version of a report of their findings to the affected person.

7.37The Department of Internal Affairs administers the Passports Act. In their submission, they noted that an independent review role is important and should include the ability to make recommendations for the handling of similar cases in future.

7.38We also suggest that the Inspector-General should be notified whenever an administrative decision is made in reliance on national security material and affects individual rights. Under section 11(1)(c), the Inspector-General may, on his or her own motion, inquire “into any matter where it appears that a New Zealand person has been or may be adversely affected by any act, omission, practice, policy, or procedure of an intelligence and security agency into the activities of the security and intelligence agencies”. This is an important safeguard. The ability for the Inspector-General to initiate a review is relevant to our decision that automatic review of the use of security material in administrative decisions is not needed. Having discussed this with the Inspector-General and the Deputy Inspector-General, we reached the conclusion that notification is sufficient to protect the interests in question. We consider that requiring agencies to notify the Inspector-General when such decisions are made will better enable the Inspector-General to perform an oversight function and will help ensure that reliance on secure information in administrative decisions receives sufficient scrutiny.

7.39The requirement to notify the affected person of a right of review by the Inspector-General would not apply to decisions under the Immigration Act or TICSA, consistent with the current schemes of those Acts, which provide alternative review mechanisms and, in the case of the Immigration Act, precludes complaints to the Inspector-General. The requirement to notify the Inspector-General when this information is used would, however, apply to decisions under these two Acts to enable the Inspector-General to remain informed of activities in this area and therefore promote effective oversight.

7.40There are two key reasons for requiring notification to both the affected person and the Inspector-General generally in administrative decisions (with the exception of legislative schemes that provide for alternative reviews). First, receiving a summary is not the same as receiving all the information. A summary is more limited and provides less scope for the person to independently assess the information. This suggests that a form of independent assessment more accessible than the High Court may be needed to ensure that the affected person’s right to natural justice is upheld and enable them to decide whether to formally challenge the decision in the courts. This form of assessment currently exists, but many affected persons may not be aware of it. Second, when decision-makers (including ministerial decision-makers) rely on information provided by the security and intelligence agencies, there is less scope to test that information compared with information provided by departmental officials. The ability of the Inspector-General to initiate a review provides oversight and can promote a more rigorous approach to using national security information in administrative decisions.

7.41This reform is particularly important for decisions made under the Passports Act and the Terrorism Suppression Act, which provide for a challenge in the High Court but which, unlike the Immigration Act and TICSA, do not have any lower-level review available.

7.42We note that there is currently provision in section 26 of the Inspector-General of Intelligence and Security Act for information to be withheld from the Inspector-General if the Prime Minister issues a certificate. We would expect this to be used only in truly exceptional cases and do not suggest changing this provision. If the Inspector-General’s ability to review information is constrained by a section 26 certificate, it will become necessary for an affected party wishing to challenge a decision to have recourse to the courts.

Recommendations

R19 If a person would be entitled to receive information about a decision that affects their rights but the information must be withheld for security reasons, the person should instead receive a summary of the information agreed by the chief executive of the relevant agency and the decision-maker.
R20 When an administrative decision is made that gives rise to the right of complaint to the Inspector-General of Intelligence and Security, the person affected must be notified of their right to make a complaint and have the actions of the security and intelligence agencies reviewed by the Inspector-General.
R21 When security and intelligence agencies provide information used in an administrative decision that affects the rights of an individual, the Inspector-General must be provided with a copy of the information given to a decision-maker and a record of the decision made.
R22 The decision-maker may decide to reconsider the decision if the Inspector-General makes a finding that the information was not reliable or balanced.
R23The Passports Act 1992, the Terrorism Suppression Act 2002, the Telecommunications (Interception Capability and Security) Act 2013 and the Immigration Act 2009 should be amended where necessary to give effect to the recommendations above.
119See s 39 of TICSA, which allows for an independent review panel to be appointed by the Minister, and s 56, which allows for review by the Commissioner of Security Warrants.
120As noted above, under TICSA, this will only be necessary where there are no security-cleared employees of the network operator able to receive the information in full.
121Section 42 states: “No complaint may be made to the Inspector-General of Intelligence and Security about any situation or set of circumstances relating to an act, omission, practice, policy, or procedure done, omitted, or maintained (as the case may be) in connection with a decision under this Act involving classified information (including a determination in proceedings involving classified information).”