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.
7.10To 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.