Contents

Chapter 9
The special advocate regime and security issues

Security in the courts

9.34The courts already deal with cases that involve national security information on occasion, and under the approach we have recommended, they will continue to do so from time to time. The courts consequently need appropriate secure facilities to deal with and store secure material. We think it is important that the necessary facilities and services are available within the Ministry of Justice-administrated courts to ensure there is sufficient separation from the security and intelligence agencies.

9.35The terms of reference preclude the Commission from making recommendations with respect to purely operational matters, including funding and administrative arrangements to institute an appropriate system for protecting sensitive security information in proceedings. We do not therefore propose to make any recommendations in respect of facilities. However, we do observe that those we consulted in the United Kingdom and in other jurisdictions strongly emphasised the significance of secure court facilities in developing and maintaining confidence between the courts and the relevant security and intelligence agencies. It has helped build trust in the court to know that security information is stored and managed in a fully secure system.

9.36Using security-cleared court staff and implementing similar measures in secure facilities are likely to assist in developing greater confidence that national security information is well protected and secure when it is used in court proceedings. In our view, this should be done proactively so that there is always a certain level of capacity in the courts system as a whole to deal with material. One of the constant practical difficulties in this area is the length of time it can take to get personnel cleared.

Security and judges

9.37In the Issues Paper, we raised the question of whether cases involving national security information should be restricted to a small pool of judges or tribunal members who might perhaps have some specific training or support to hear these types of claims. A step further, which we did not propose, would be to consider whether some form of security clearance for such judges is justified.

9.38The existing legislative schemes in New Zealand that provide for closed procedures do not require judges, or Tribunal members in the immigration context, to have any form of security clearance. Instead, the approach taken, for example, in the Immigration Act, is to restrict the number of judges who may hear cases involving classified information. Proceedings before the Immigration and Protection Tribunal that involve classified information must be heard by the Chair of the Tribunal, who must be a District Court Judge, or by the Chair and one or two other members, who must also be District Court Judges.137 Proceedings in the courts involving classified information may only be heard by the Chief High Court Judge and up to two other judges nominated by the Chief High Court Judge.138

9.39For a number of important reasons, including retaining a proper separation between the branches of government and preserving the independence of judicial officers, we are not in favour of requiring judges hearing cases to be security-cleared. We do not think that the Crown should determine which judges will deal with cases involving national security information. It is not appropriate for one of the parties involved in litigation to be determining who the judge will be. We prefer the approach, such as that taken in the Immigration Act, where the relevant Head of the Bench nominates judges to hear such cases. There was little support from submitters for requiring judges to be security-cleared. For the same reason, we do not recommend legislation limiting the pool of judges or tribunal members who will potentially deal with cases involving national security information. However, as developed below, we do suggest that cases should be heard in the High Court, not the District Courts.

High Court Judges

9.40We recommend that all cases involving national security information should, with some specific exceptions, be heard in the High Court. This would, we believe, be an effective way of limiting the number of judges who may become involved with national security information. Restricting cases to the High Court will also assist with managing the security needs of such cases. For the purposes of developing experience in this particular area, the Chief High Court Judge might wish to consider nominating judges to hear these cases.

9.41While it would be a matter for the judiciary to determine, we consider that it would be beneficial for the judges who are likely to be involved in hearing such cases to have specific training around security issues, terminology and intelligence methodologies. Judges hearing cases will need to have access to specialist advisers who can give expert assistance on security issues.

9.42Many civil cases involving national security information are likely to be in the High Court anyway. Applications for judicial review are heard in the High Court. Also, appeals and reviews in cases under the closed regimes in the Passports Act, TICSA and the Terrorism Suppression Act where national security information forms part of the decision are heard in the High Court. Where civil proceedings involving national security information are brought in the District Court, they should be transferred to the High Court.

9.43In a case where the judge determines that it is appropriate because of the issues involved, there is already provision for the High Court to sit as a full court with two or more judges sitting constituting the court. The full court is reserved for cases of particular significance, and it is at the discretion of a judge to determine whether or not to constitute a full court.

Criminal proceedings in the District Court

9.44Pre-trial hearings on the question of disclosure of national security information under the Criminal Disclosure Act 2008 should be transferred from the District Court to the High Court. The Criminal Procedure Act 2011 will need to be amended to specifically provide for transfer where national security information is in issue.

Exceptions for specialist courts and tribunals

9.45Where proceedings would otherwise be in specialist courts, it runs counter to the rationale for establishing specialist courts to transfer cases for decision elsewhere. We therefore think that exceptions should be made to the recommendation that all proceedings involving national security information are dealt with by the High Court for specialist courts and tribunals. However, with the exception of the Immigration and Protection Tribunal, the other specialist courts that may have to grapple with national security information may face some logistical difficulties in managing such cases.

9.46These other specialist courts will need access to secure facilities also if they are to hear cases involving national security information. Some administrative arrangements could be put in place allowing them to use the facilities available for the High Court.

Immigration and Protection Tribunal
9.47In the area of immigration, the Immigration and Protection Tribunal has been established with the potential to manage cases involving national security information and other types of sensitive information. The current arrangements can simply continue. Proceedings before the Immigration and Protection Tribunal that involve classified information must currently be heard by the Chair of the Tribunal, who must be a District Court Judge, or by the Chair and one or two other members of the tribunal, who must also be District Court Judges.139 We understand that, currently, there is only one District Court Judge, who is the Chair of the Tribunal. Unless that situation is going to change, consideration should be given to amending the Immigration Act so that it does not require the other one or two members of the Tribunal nominated by the Chair to also be District Court Judges.
Employment Court
9.48The case of Zhou140 illustrates how national security information may be relevant to proceedings before the Employment Court. Employment cases involving national security information should be determined by the Employment Court. That Court has exclusive jurisdiction under the Employment Relations Act 2000, so it is inappropriate to transfer proceedings to the High Court. The Employment Relations Act allows for the removal of some cases from the Employment Relations Authority into the Employment Court.141 However, this should perhaps be amended to include an explicit provision requiring the Authority to transfer a case on the grounds that it involves, or is likely to involve, national security information to ensure that such cases are caught at an early stage. We also think that the Act should be amended to provide that employment proceedings involving national security information will be heard by the Chief Employment Court Judge or by any other Employment Court Judge nominated by the Chief Employment Court Judge.
Human Rights Review Tribunal

9.49There is also a reasonable likelihood that national security information may be dealt with in proceedings before the Human Rights Review Tribunal. First, information privacy requests involving national security information may come before the Human Rights Review Tribunal. Although access to information complaints involving the security and intelligence agencies cannot progress to the Tribunal, complaints against other agencies such as the Police or the New Zealand Customs Service may do so. The Privacy Commissioner may refer a case to the Tribunal where an agency refuses to release personal information to an individual requester on national security grounds despite the Commissioner making a finding that particular information should be released to a requester. In addition, the person who requested the information may also apply to the Tribunal. There is potential also for other types of human rights proceedings to involve national security information.

9.50The Human Rights Review Tribunal has been established with a specific specialist jurisdiction and should hear proceedings that fall within its jurisdiction. However, we suggest that there may be some logistical and practical issues with the Tribunal managing national security information in a way that ensures its security. There are similar practical issues in respect of the Employment Court. An enhanced level of security is needed, and this requires access to secure facilities. As already noted, administrative arrangements could be put in place to use secure facilities available in the High Court.

9.51The Human Rights Act 1993 makes provision for the removal of proceedings to the High Court on public interest grounds.142 Given the logistical issues, the Crown may well seek to transfer any case involving national security information into the High Court.
Other courts and tribunals

9.52Although national security information could possibly be relevant to civil proceedings before other courts and tribunals, we are not aware of cases where this has arisen and consider it unnecessary to make legislative provision.

Recommendations

R40Subject to the following specific exceptions, all cases involving national security information should be heard in the High Court:
(a) The Immigration and Protection Tribunal should continue to hear cases involving national security information and other types of sensitive information.
(b) Employment Court proceedings involving national security information should be heard by the Chief Employment Court Judge or by any other Employment Court Judges nominated by the Chief Employment Court Judge for that purpose.
(c) Proceedings involving national security information in the Human Rights Review Tribunal should continue to be heard there. Provision already exists for removing proceedings to the High Court on public interest grounds.
R41The relevant court or tribunal hearing any case involving national security information should have the power to appoint a special adviser for the purposes of giving advice on any aspect of national security in any proceedings before it.
137Immigration Act 2009, s 240.
138Section 252.
139Immigration Act, s 240.
140Zhou v Chief Executive of the Department of Labour [2010] NZEmpC 162, [2010] ERNZ 400.
141Employment Relations Act 2000, s 189.
142Human Rights Act 1993, s 122A.