Chapter 7
Administrative decisions

Why is reform needed?

7.6We take as a starting point that there will be some areas of administrative decision-making where information gathered by security and intelligence agencies needs to be used to inform a decision that affects a person’s rights. In some cases, the disclosure of the information will raise security risks. An example would be the cancellation of a passport under the Passports Act 1992 based on information received from intelligence partners that demonstrates the person in question plans to travel to another country and undertake terrorist activities. In cases such as these, there is a tension between two key interests. The Crown should be able to rely on national security information for legitimate purposes, but the affected person should be able to test that the information has been properly relied upon in the particular case.

7.7As discussed in the Issues Paper National Security Information in Proceedings (IP 38), several statutory regimes have established closed hearing procedures that apply where the relevant court or tribunal hears an appeal or review of a decision involving national security information. The Issues Paper discussed closed procedures where national security information is involved under the Immigration Act 2009, the Passport Act, the Terrorism Suppression Act 2002, the Telecommunications (Interception Capability and Security) Act 2013 (TICSA) and the Customs and Excise Act 1996.115 We compared the core elements of the different procedures under these regimes and identified a number of inconsistencies.
7.8The inconsistencies go to major aspects of the procedure, including who decides whether a closed procedure should be used, who determines if the information meets the definition required, the terminology used, whether summaries are produced and the availability and appointment of special advocates.116 The Immigration Act procedure is, in our view, the most robust and includes several features designed to protect the interests of the non-Crown party, including a requirement that information not be taken into account by the Immigration and Protection Tribunal unless it has been provided in summary form to the affected person. However, other statutes have not adopted as many procedural protections, and the Immigration Act procedures have not yet been tested in the Tribunal or in the High Court.
7.9While some variation in procedure might be justified due to the different legislative contexts, it is undesirable for core decision-making elements and features such as the appointment and roles of special advocates to be different across various regimes. In addition, the lack of judicial control over the procedure provided for in some of the statutes is potentially concerning. None of these statutes allow the court to order that information be disclosed when other public interests outweigh the national security interests.117 The Terrorism Suppression Act and the Passports Act both provide for closed hearings but do not explicitly allow for the appointment of special advocates. In addition, under both these statutes and TICSA, the court appears to have little or no power to require further information to be disclosed in a summary to the affected person.118 Regardless, the court must determine the proceedings on the basis of all the information available to it. TICSA provides for representatives of network operators subject to that Act to be security-cleared, but the special advocate is not able to communicate with these representatives after viewing the security information except with leave of the court. We are particularly concerned with the Passports Act and the Terrorism Suppression Act, under which we consider that there is a real risk that the courts will be unable to ensure proceedings can be fairly heard.

7.10To be able to bring a meaningful challenge to an administrative decision, the affected person needs to first have access to enough information about the decision so that they can properly assess whether there are grounds for challenge. Notably, sections 37 – 39 of the Immigration Act provide that, where classified information is relied upon, a summary of allegations and reasons for the prejudicial decision must be provided. This protection is not present in the other statutes that provide for the reliance on national security information in administrative decisions.

7.11We consider that there is a clear need to reform these various schemes and introduce greater cohesion and a more principled approach to protecting national security information that is taken into account in administrative decisions while also allowing the decision to be challenged by the affected party. In our view, there is scope to improve these processes to give better effect to the natural justice protections under section 27 of NZBORA and provide more robust mechanisms for the affected person to receive a fair hearing while still ensuring that national security information is protected.

7.12Submitters generally favoured greater alignment between different areas of administrative review. The Chief Ombudsman, Dame Beverley Wakem, supported giving the courts greater power to require more information to be disclosed in the summary of national security information. The New Zealand Law Society considered that inconsistencies amongst existing statutory regimes suggests there is some value in developing a single statutory regime applicable to administrative and civil contexts. The Privacy Commissioner stated that “a standardised process would best reflect and balance the various public interests involved, and is preferable to introducing variant approaches for each statutory regime or new context in which national security information can be relevant to decision-makers”. The New Zealand Security and Intelligence Service and the Government Communications Security Bureau, in their joint submission, also considered there were advantages in greater consistency though noted in discussions with us that there are some areas where particular differences are justified, for example, TICSA protects the interests of network operators when national security information is used by allowing them to have employees security-cleared.

115We understand that the relevant provisions of the Customs and Excise Act were never used and will be repealed in the near future. We do not therefore propose to comment further on the Customs and Excise Act procedure.
116Law Commission, above n 85, at [4.27] onwards.
117In contrast, under the Criminal Disclosure Act 2008, the court may order disclosure if the interests in favour of disclosure outweigh the interests protected by withholding the information.
118In our Issues Paper, we noted the particular inconsistency between the Passports Act and Terrorism Suppression Act on the one hand and the Telecommunications (Interception Capability and Security) Act 2013 [TICSA] on the other with respect to the court’s role in approving a summary of the information. While the first two statues provide that the court must approve a summary prepared by the Attorney-General (unless the summary would itself disclose the relevant information), TICSA provides that the court may approve the summary. See Law Commission, above n 85, at [4.45].