the use of “national security information” in court proceedings › cws › resources ›...

The Use of “National Security Information” in Court Proceedings

An Overview of the New Zealand Law Commission’s 2015 Report

Courts of Excellence, International Conference, Singapore, January 2016

Dr Lisa Yarwood

1. INTRODUCTION

1.1. There may be many reasons why a government could be legally permitted to restrict the evidence

otherwise given to a court and other parties to a proceeding such as evidential restrictions; but this

paper asks whether there should be circumstances where the court should in its decision-making process

be able to take National Security Information or “NSI” into account - even where the NSI is not disclosed

to the individual whose rights are under consideration.

1.2. It is an important democratic principle that courts operate openly and that parties whose rights are

affected by any determination of the court are entitled to know what is happening to them and the

reasons why. But imagine a scenario such as this:

1.2.1. X claims that the government must be relying on inaccurate and erroneous information to deny X’s

claim for political asylum. The government however claims that X has lied repeatedly on his asylum

claim and is not who he says he is - yet it cannot disclose the information it is relying upon to

substantiate these claims because to do so would make it obvious that the government is using a

secret form of code decryption technology. This could undermine the government’s ability to use

this technology in the future.

1.2.2. On the face of it the options are (a) not to disclose and potentially let a dangerous man in the

community or make a decision that will affect X’s liberty without giving him the opportunity to

know and challenge the information; (b) disclose and potentially compromise the government’s

future use of the technology and the benefits this may have or is there (c) an alternative – and it is

this alternative that I will consider here.

1.3. For the purposes of this discussion I rely on three working assumptions. These are: (1) that governments

must work closely with their allies for the purpose of intelligence gathering; (2) that the information

gathered and methods by which it is gathered may need to be kept secret; and (3) that there are times

when disclosing the information or methods by which the information was obtained may give risk to a

risk to national security. The issue for consideration here is what role can the court play in balancing the

interests of justice on the one hand and the interests of national security on the other?

1.4. In order to address this question I will cover the following: (1) what are the interests involved or in other

words what is meant by ‘the interests of justice’ and by ‘national security information’ in terms of

information that needs to be protected; (2) how is the broader issue of the role that the court can play

currently being addressed in different jurisdictions; (3) provide an overview of the status quo in New

Zealand and the recommendations made by the New Zealand Law Commission at the end of 2015 in

relation to this issue; and (4) offer some closing remarks on whether a new frontier has presented itself

for the judiciary.

2. THE RIGHTS INVOLVED

2.1. There are two potentially conflicting bundles of rights relevant to the issue of using NSI in court

proceedings.1 Firstly, natural justice rights and secondly the protection of those rights that are implicated

in maintaining national security. Before considering how the balance of these rights is approached (or

not) in various jurisdictions we look at what these interests look like in the context of this dilemma.

2.2. Natural Justice and Fair Trial Protections

2.2.1. The right to natural justice is recognised in the founding constitutional and core human rights

legislation of many countries and jurisdictions, for example Article 6(1) of the European Convention

of Human Rights provides that "in the determination of his civil rights and obligations or of any

criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by law". Other elucidations include the

Fifth Amendment to the United States Constitution, section 27 of the New Zealand Bill of Rights Act

1990 and section 7 of the Canadian Charter.

2.2.2. The extent to which natural justice protections can be impinged upon is often determined with

reference to whether this is sought to be done within a broader rule of law or human rights

framework. For example, the Special Rapporteur on Human Rights and Counter Terrorism believes

that justifying the exclusion of media and the public from court (because open justice is a key

element of natural justice) on the grounds of preventing prejudice to national security is only

possible if there are "adequate mechanisms for observation or review".2

2.2.3. Natural justice is comprised of two main principles being an unbiased decision maker (nemo iudex

in causa sua) and the opportunity to be heard (audi alteram partem).3 The specific elements of

natural justice that are relevant in this discussion are:

2.2.3.1. Open justice – open justice ensures there is a record of proceedings showing the rule of law is

applied, enables scrutiny of the process used (and assurance that procedural fairness is

1 It was likewise from this basis that the New Zealand Law Commission approached their review in the Issues Paper published in May 2015: New Zealand Law Commission The Crown and court: A review of the Crown Proceedings Act and national security information in proceedings NZLC R 135 (2015).

2 “United Nations Official Document” <http://www.un.org/ga/search/view_doc.asp?symbol=A/63/223> at [30[.

3 Butler P and Butler A (2005), New Zealand Bill of Rights Act: A Commentary (Wellington).

achieved) and at the extreme can help protect against an unchecked abuse of power. Given

that the court’s primary function is to ensure that justice is achieved however, limitations on

the open justice principle may sometimes be required, for example the New Zealand Law

Commission give the example of steps taken to protect vulnerable witnesses.4 In the case of

this paper the question becomes whether the protection of NSI could justify limitation of

open justice or alternatively, whether steps can be taken to protect national security without

completely displacing open justice, such as redacting certain information or finding

alternative ways for evidence to be given or closing the court to non-security cleared parties.

2.2.3.2. The right to choose counsel - this helps create a relationship of trust and confidence and

ensure that counsellors are independent. As above the right to choose counsel has adapted

to the reality of legal practice so for example fiscal constraints mean that legal aid would

often be an exception to the right to choose counsel.5 One of the issues of the special

advocate6 regime is that the represented individual does not necessarily have the right to

choose their special advocate and their ability to communicate with the advocate is restricted

arguably undermining the efficacy with which counsel can effectively represent the party’s

interests (for example the special advocate cannot ask questions or clarify information having

seen the classified information).

2.2.3.3. Equality of arms – requires that all parties to proceedings should have equality both in terms

of appearing before the court and in terms of equality by the courts (which requires that all

parties have equal access to the evidence and knowledge of the charges).7 As with the open

justice principle and the right to choose counsel there are measures that may be less of a

limitation on the equality of arms principle and that might facilitate the protection of NSI, for

example using special advocates.8

2.3. In addition to understanding the nature of natural justice rights that may be impinged upon when NSI is a

factor in proceedings,9 it is likewise important to seek to understand the nature of NSI –in particular

4 New Zealand Law Commission The Use of National Security Information in Proceedings NZLC IP38 (2015) at [2.51].

5 Wolf v Panama (CCPR/C/44/D/289/1988 (1992).

6 Being trained and security cleared lawyers who have access to the non-disclosed information and who represent the interests of the affected party in relation to that information.

7 United Nations Human Rights Committee in General Comment No 32: Article 14: Right to equality before courts and tribunals and to a fair trial (CCPR/C/GC/32 (2007); United Nations Human Rights Committee Caladas v Uruguay A/38/40 (1983).

8 In the United States of America lawyers for defence in such cases continue to represent their client but obtain a security clearance and have ongoing consultation and representation of their clients. Amongst criticisms of the special advocate regime is the inability to truly represent the client given the limitations on communication so for example in civil proceedings how can settlement be truly negotiated without full knowledge by the defendant of the information being withheld. Another concern is payment for the special advocate and whether if the state was made to pay this could compromise independence.

9 Being where either NSI is not disclosed or is partially disclosed or an alternative such as a closed proceeding is used. If NSI is disclosed fully there is no issue.

whether its non-disclosure or protection would be adequate justification for impinging on the body of

rights that comprise natural justice.

2.3.1. One approach to understanding NSI in this context is to look at the various legislative definitions

that exist. In New Zealand for example the Official Information Act 1982, the Privacy Act 1993, the

Terrorism Suppression Act 2002 and the Immigration Act 2009, NSI describe NSI as information that

if disclosed could risk prejudice to the country's security, defense operations, international

relationships including information sharing relationships, the ability to prevent and prosecute

offences, the safety of any person both in the country or overseas and vital economic interests. In a

recent report, the European Parliament identified divergences in approach to defining NSI so some

European nations have adopted statutory definitions which include a wide range of matters such as

economic, ecological, territorial and political threats.10

These approaches are varied and have the

potential to encompass a significant amount of information so that permitting non-disclosure

simply on the basis that the information fell within one of these categories would seem

incompatible with the status afforded to natural justice, as noted earlier.

2.3.2. A second approach would be to set aside the definition of a finite class of information and instead

question whether protection of the information in question would justify limiting natural justice –

or the relevant fair trial protection. Such an approach would instinctually suggest that certain

classes of information (such as where the risk related to an environmental threat rather than a

threat to citizen safety) may be less likely to meet such a threshold. In other words NSI would relate

not so much to the type of information (eg it related to defence matters); rather non-discloseable

NSI would be determined with reference to whether limitations on natural justice protections could

justifiably be imposed upon because there is a risk that disclosure of the information would

prejudice national security.11

2.3.3. A third approach is to consider the consequences of disclosure - whether disclosure of the

information in question could prejudice national security and in what way. For example if the

information relates to the methods of information gathering used by security agencies or disclosure

could put the life of a security agent into danger or the information might damage a crucial

information sharing relationship with another country then limitations on natural justice rights

might be considered justifiable.

2.3.4. A fourth approach would permit a broader definition of NSI but in terms of determining whether or

not information was to be disclosed in proceedings the court (or decision maker) would be required

10 Directorate–General for Internal Policies National Security and Secret Evidence in Legislation and Before the Courts: Exploring

the Challenges (European Parliament, September 2014) at 35.

11 See discussion at New Zealand Law Commission The Use of National Security Information in Proceedings NZLC IP38 (2015) at [6.8].

to consider the potential consequences if the information is not disclosed. This approach would

require any alternatives to non-disclosure to likewise be considered (including partial disclosure or

the use of closed proceedings and special advocates as considered below).

3. HOW DO JURISDICTIONS MAKE ALLOWANCE FOR THE USE OF NSI IN PROCEEDINGS?

3.1. As will be shown below, in a non-comprehensive way, a common approach to the issues in question

(rather than dealing with some sort of balancing exercise to determine whether the information should

be disclosed or not, weighing up the protection of NSI on the one hand and natural justice protections on

the other) is for national courts to employ a form of closed court procedure in order for the information

in question to be considered by the court without risking disclosure. The argument is that this presents a

workable compromise to offset any potential prejudice to natural justice protections.

3.1.1.1. Before turning to consider overseas approaches I note that a distinction must be drawn

between a closed procedure that is used in the pre-trial phase and a closed procedure that is

used during the substantive hearing. A closed procedure in the pre-trial stage would mean

that the court is considering whether the information is relevant to proceedings and how best

to protect that information. This approach is already taken in respect of other types of

confidential information or privileged information thus if a closed court procedure was used

with some form of special advocate to represent the interests of the party it could be

anticipated that any question of whether natural justice have been displaced (to the extent

this was unjustifiable) must be answered in the negative. In a substantive hearing however

the information would be relevant to the decision-maker’s determination and this would

amount to a significant departure from the ordinary court process so that the question really

becomes whether the presence of a special advocate would be sufficient to address natural

justice concerns. Arguably natural justice protections will be of even greater weight when the

substantive hearing is criminal in nature so that even if it is found that a special advocate in a

substantive hearing may provide adequate mitigation to justify limiting natural justice rights

in certain situations, this threshold must be higher to satisfy when the proceedings relate to

the liberty of an individual.12

12 Although this paper does not concern itself with administrative proceedings, I note that a parallel may be drawn between

criminal proceedings that may result in the imprisonment of an individual and proceedings related to for example immigration decisions. In such cases the decision-maker may be making a determination that would result in the individual being deported or allowed to stay in the relevant country. Accordingly a parallel could be drawn and the argument made that the substantive proceedings are of such significance that the associated natural justice protections are high enough to disallow a closed procedure and use of the special advocate.

3.2. Australia13

3.2.1. Australia has both common law public interest immunity or “PII”14

that excludes information from

use in the courts and the National Security Information (Criminal and Civil Proceedings) Act 2004.

The Act permits the Attorney-General to issue a non-disclosure certificate if the Attorney-General is

of the opinion that disclosing the information could prejudice national security or to make lesser

orders such as redacting information and requiring a summary of information or a statement of

facts.15

If a certificate is made the court will hold a hearing to determine whether or not to uphold

the certificate and any other orders given by the Attorney-General, with reference to the natural

justice rights of the relevant party. This hearing may at the relevant times be closed to the

defendant who would however have a right to be heard on the matter (the relevant lawyer would

require security clearance to view the information).

3.3. Canada

3.3.1. Canada likewise has common law PII, although this is subject to the trial judge,16

who is different to

the judge that made the non-disclosure determination, “undertakes an ongoing review of whether

or not the non-disclosure order continues to be compatible with natural justice protections. If the

13 Much of the information below in relation to the experience in Australia, Canada and the United Kingdom can be found in

more detail in New Zealand Law Commission The Use of National Security Information in Proceedings NZLC IP38 (2015) at Chapter 1, and on which this paper draws.

14 Although this paper is focusing on how NSI is used, it is important to give a brief explanation of the doctrine of public interest immunity (PII). At a very basic level the principle (although it differs in application depending on jurisdiction) allows a party to proceedings to seek a court order that information should not be presented before the courts or considered in the courts on the basis that to do so could prejudice the public interest. This doctrine is used in many commonwealth countries to ensure that certain information is not disclosed through its inclusion in court proceedings. There is the argument PII is, of itself and without further innovation, sufficient and that if disclosure of NSI risks prejudice to national security then the government in question has the choice to withhold the information and to discontinue proceedings against the party in question. This will not address however those instances where the information in question benefits or is in favour of the non-government party. Nor does the argument in favour of using PII to deal with NSI, acknowledge that there may be circumstances where the interests of justice require that the information be heard in court, albeit in a closed proceeding. Indeed it can be argued that the non-disclosure of potentially relevant information through invoking PII should be avoided as it goes against principles of accountability and transparency which many would consider key characteristics of a robust democracy. In such cases what is needed is a secure means by which information can be used in court proceedings without risking disclosure or compromising the national security interests in question. Other arguments against PII, and taken from various jurisdictions, include: (1) the lack of guidance for courts in assessing a PII claim in relation to the weighting between the rights of the individual on the one hand and public national security concerns on the other; - (2) the lack of guidance as to appropriate evidentiary standards; - (3) the lack of a mechanism to indicate a PII application may be forthcoming in proceedings resulting in surprising the non-government party potentially giving an advantage to the party claiming PII; and - (4) the lack of alternative or partial measures in place of full PII. The focus in this paper is on the role of the court and fundamentally PII does not permit the court to play a role beyond granting an order (or reviewing a governmental certificate) that prevents disclosure of the material. I am concerned with closed court proceedings, the use special advocates and other measures that would facilitate the use of NSI in court proceedings, rather than the approach of PII to simply prohibit its use. See Chapter 5 for full and further discussion - New Zealand Law Commission The Crown and court: A review of the Crown Proceedings Act and national security information in proceedings NZLC R 135 (2015).

15 Provision was made under the Act for use of evidence against an accused in a criminal trial without access of the accused or the accused’s counsel to that information.

16 See discussion at New Zealand Law Commission The Use of National Security Information in Proceedings NZLC IP38 (2015) at [6.29] to [6.31].

judge considers this not to be the case, there are a range of measures the judge can use to redress

the imbalance in favour of the other party, including a stay of proceedings”. 17

3.3.2. The Canadian Immigration and Refugee Protection Act 2001 provides for the use of security-cleared

advocates in immigration proceedings (although special advocates are also used in extradition

proceedings and PII proceedings). Special advocates are security cleared legal representatives that

review the information representing the interests of the non-government party. This work is done

with administrative and financial support from the Ministry of Justice.

3.3.3. In Canada special advocates are permitted limited communication with the party that they

represent as authorized by the court (while in the United Kingdom communication is limited

although in the employment court context there is communication but not about the substance of

the closed material itself) although in practice the extent of communication includes unlimited one

way correspondence from the represented party and their counsel to the special advocate and is

considered to be broad in scope.18

The court cannot overturn a non-disclosure order made by the

government on national security grounds although it can stay proceedings. Special advocates have

been successful in establishing over-claiming by the Canadian government and challenged evidence

as being obtained under torture. 19

3.4. United Kingdom

3.4.1. The UK also has PII. The courts must continue to monitor the necessity of non-disclosure on an

ongoing basis and accordingly the courts can reconsider a non-disclosure decision, which “allows

the court to continually monitor proceedings to ensure compliance with natural justice

protections”. 20

3.4.2. The Justice and Security Act 2013 outlines a closed material process for dealing with NSI in civil

courts allowing the UK government to defend itself in civil claims without disclosing information it

considers to pose a risk to national security and in the immigration context.

3.5. Europe – in continental Europe there are a variety of approaches to dealing with information that if

disclosed could prejudice national security, which were canvassed in a report by the European

Parliament’s Committee on Civil Liberties, Justice and Home Affairs in 201421

. The PII approach (which

17 New Zealand Law Commission The Use of National Security Information in Proceedings NZLC IP38 (2015) at [1.33]. If the

Federal Court judge decided to allow disclosure this can be overridden by the Attorney-General issuing a non-disclosure certificate providing an executive override: Canada Evidence Act RSC 1985.

18 Canada (Citizenship and Immigration) v Harkat 2014 SCC 37; [2014] 2 SCR 33 at [66]–[73].

19 New Zealand Law Commission The Use of National Security Information in Proceedings NZLC IP38 (2015) at [4.77] referring to Kent Roach “Secret Evidence and Its Alternatives” in Aniceto Masferrer (ed) Post 9/11 and the State of Permanent Legal Emergency (Springer, Dordrecht, 2012) at 165.

20 New Zealand Law Commission The Use of National Security Information in Proceedings NZLC IP38 (2015) at [1.33] and referring to the decision of the House of Lords in R v H and C [2004] UKHL 3.

21 Policy Department C: Citizens’ Rights and Constitutional Affairs National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges (European Parliament, September 2014).

prevents disclosure but which does not remove the information as part of the court record) noted above

is not a feature.

3.5.1. In France, Spain and Italy the use of secret information is not permitted in a court room as it is

considered to undermine the principle of ‘equality of arms’ between the parties to a proceeding

because not all parties could access and challenge the information. This situation results in the

executive holding greater powers to classify information as secret without necessarily

acknowledging and weighing up the various interests involved.22

3.5.2. In France the judiciary can seek to have information declassified in order for it to be admitted to the

courts for consideration. The Commission Consultative Sur le Secret de la Défense Nationale

(CCSDN) is comprised of two judges and three government ministers/advisers (three of which are

nominated by the President). The CCSDN provides non-binding recommendations to the

government on whether information should be declassified. Given that France has an advanced

system of reciprocal agreements protecting classified information and preventing declassification

the efficacy of the CCSDN is arguably limited.

3.5.3. In Spain pursuant to the rules of fair trials laid out in the Act on Criminal Procedure and Article 24 of

the Spanish Constitution the lawyers for all parties in proceedings must be able to examine all

evidence presented in the courts, however declassification of documents is undertaken by the

Council of Ministers and Assembly of State Chiefs (thus the executive branch of government).

Similarly the activities of the Spanish National Centre for Intelligence are deemed classified and

oversight is restricted to the Parliament and Ombudsmen. In Spain measures are used to

circumvent non-disclosure by introducing ‘second hand’ intelligence.23

3.5.4. Germany is another example of where ‘second hand’ evidence is used because the use of secret

evidence is forbidden pursuant to Article 103 of the German Constitution.24

Second hand evidence

allows the court to hear evidence relayed by an anonymous informer or intelligence officer who

would for example describe a classified document.25

3.5.5. In the Netherlands the Intelligence Security and Services Act 2002 allows the claimant in a case to

agree to the judge reviewing evidence that the government had claimed should be excluded on

national security grounds. If the judge determines that the claim of a strong interest in protecting

national security is justified the evidence can still be admitted to the court if the claimant agrees to

its only being viewed by the court (and not the claimant).

22 Policy Department C: Citizens’ Rights and Constitutional Affairs, above.

23 Policy Department C: Citizens’ Rights and Constitutional Affairs, above.

24 Federal Constitutional Court, 26.5.1981, 2 BvR 215/81.

25 In Sweden, in the Ali Berzengi and Ferman Abdullah cases, second hand evidence was given orally by FBI representatives with the rationale that the Court could “trust international legal assistance” (Stockholms tingsrätt (2005-05-12), ”Dom i mål B 2965-04”).

4. THE NEW ZEALAND EXPERIENCE

4.1. New Zealand, as with other Commonwealth countries is subject to common law PII. The approach taken

by the courts in responding to a PII application will in theory be governed by the 1999 precedent in

Choudry v Attorney General, where the Court of Appeal deferred to the government’s assertion of

sensitivity of information without going behind the certificate to assess the information.26

Caution has

been expressed, including by the Law Commission, that the approach taken may not be followed.27

The

Law Commission considered the uncertainty as to how the courts would approach a PII assertion today

raises the possibility that a court could adopt the Choudry approach with the risk of an injustice to the

non-government party or an ad hoc approach (under the inherent jurisdiction and consent of the parties)

being used which then risks disclosure of material “without the protections of the closed procedures”.28

These concerns underpinned the Law Commission’s recommendations outlined below.29

4.2. There have been two notable instances of the use (or attempted use) of NSI in the courts in New

Zealand.30

First, is the case of Mr Ahmed Zaoui.31

This related to challenging a security risk certificate

issued by the Director of the NZ Security Intelligence Service which meant Mr Zaoui was detained,

despite having been granted refugee status, on the grounds he was a risk to national security. Two

special advocates were used to represent Mr Zaoui’s interests including during a hearing to review the

security certificate, however this procedure was not fully tested as the security certificate was

withdrawn. This case pre-empted statutory change under the Immigration Act 2009 to provide more

guidance in establishing and using closed material proceedings in immigration and refugee cases.

Second, the Dotcom cases related to challenges to the lawfulness of a search of Mr Kim Dotcom’s home

and Police in reliance on interception of communications by the Government Communications Security

26 Choudry v Attorney-General (No 1) [1999] 2 NZLR 582 (CA) and Choudry v Attorney-General (No 2) [1999] 3 NZLR 399 (CA).

27 New Zealand Law Commission The Crown and court: A review of the Crown Proceedings Act and national security information in proceedings NZLC R 135 (2015) at [5.8].


29 In New Zealand there are several statutory provisions that allow evidence to be withheld on the basis that disclosure would prejudice national security: Section 16(g) of the Criminal Disclosure Act 2008 subject to section 30(1)(b) which permits the court to order disclosure where if “the interests in favour of disclosure outweigh the reasons for withholding” ((New Zealand Law Commission The Use of National Security Information in Proceedings NZLC IP38 (2015) at [1.19]); sections 69 and 70 of the Evidence Act 2006 subject to the defendant’s fair trial rights being protected as per section 27(1) New Zealand Bill of Rights Act 1990; and section 27 Crown Proceedings Act 1950 is a statutory form of PII. The statutory framework is unclear in terms of how these sections overlap, whether section 52(4) Evidence Act 2006 provides the courts a broad discretion and “whether common law public interest immunity continues” (New Zealand Law Commission The Use of National Security Information in Proceedings NZLC IP38 (2015) at [5.5]) .

30 There is a third case in which the Employment Court considered it had the authority to appoint a special advocate in the employment context but this was settled: Zhou v Chief Executive of the Department of Labour [2010] NZEmpC 162, [2010] ERNZ 400.

31 Zaoui v Attorney-General [2004] 2 NZLR 339 (HC); Zaoui v Attorney-General [2005] 1 NZLR 577 (CA) Zaoui v Attorney-General (No2) [2005] NZSC 38, [2006] 1 NZLR 289.

Bureau. This was in the broader context of attempts by the United States to extradite Mr Dotcom to face

charges relating to his internet business affairs. A closed procedure was used with the consent of the

parties pursuant to the inherent powers and case management powers of the High Court.32

This

procedure was employed at the discovery and disclosure stage and allowed a special advocate to be used

to assist the court and protect the interest of the defendants.33

4.3. Thus the status quo in New Zealand in civil proceedings is that the government may rely on PII to have

information excluded but there is no express statutory authority for use of NSI without disclosure –

except to the extent that the courts have used their inherent powers and party consent arrangements to

undertake closed proceedings on a case by case basis.34

The New Zealand Law Commission noted that

there are issues in relying on the courts inherent powers citing Al Rawi v Security Service, where the

United Kingdom Supreme Court recognized that “the inherent power of the courts to regulate their own

procedures were still subject to limitations” and given that a closed procedure would be a departure

from fair trial and natural justice protections, it ‘’was an area for Parliament, rather than the courts, to

develop”.35

4.4. Given the lack of clarity described above as to how NSI could or could not be used in proceedings in New

Zealand it was felt that there was the need for a review of the area and questioning whether a specific

statutory regime was required. The New Zealand Law Commission was asked in late 2014 by the Minister

of Justice to undertake “to undertake a first principles review of the protection of classified and sensitive

national security information…and as appropriate, make recommendations for reform. This review looks

at the protection, disclosure, exclusion and use of relevant classified and sensitive national security

information in such proceedings” 36

– this followed from an earlier review by the Law Commission of the

Crown Proceedings Act 1950. The review was to “seek to understand and simplify the way national

security information is treated in the context of court proceedings and administrative decisions so as to

ensure both natural justice and national security are protected”. 37

4.5. In its Issues Paper, released in May 2015, and discussing many of the issues raised here, the Commission

invited submissions on three questions: 38

32 Dotcom v Attorney-General CIV 2012-404-001928.

33 A section 70 Evidence Act application was subsequently made by the Crown during proceedings to withhold certain information and continue the special advocate regime.

34 Pursuant to sections 240 to 271 of the Immigration Act 2009 a closed proceeding and special advocates can be used in the context of the Immigration and Protection Tribunal (and appropriate higher courts). The author understands this process has never been used.

35 New Zealand Law Commission The Use of National Security Information in Proceedings NZLC IP38 (2015) at [5.20] referencing Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC).



38 New Zealand Law Commission The Use of National Security Information in Proceedings NZLC IP38 (2015) at [1.41] and [2.43].

4.5.1. What information can be withheld or otherwise treated differently and when.

4.5.2. Who ought to decide what information is treated differently for example a judge, a government

minister, the attorney general or the intelligence agencies.

4.5.3. How should the information be treated - for example withheld, redacted or referred to a special

advocate.

4.6. The Commission considered that its review fundamentally related to “the separation of powers and the

respective roles of the independent judiciary and the executive”. The Commission noted that while

“traditionally the courts have afforded considerable deference to a claim by the Crown (or Government)

that disclosure of material will prejudice national interests such as security, defence and international

relations…recent trends in favor of open justice and more extensive judicial supervision leave the current

position under New Zealand law uncertain”. Accordingly feedback was sought on several options relating

to the role of the judiciary in determining claims of NSI that cannot be disclosed. The options were:39

4.6.1. The courts would be required to accept and act upon a government assertion that the information

in question was not to be disclosed on the grounds of a risk to national security.

4.6.2. The courts could examine a government assertion that the information in question was not to be

disclosed and if found not to be valid the courts could order disclosure.

4.6.3. Any direction by the court to disclose the information would be subject to an executive override, by

way of issuing a public interest immunity certificate and in particular the Law Commission asked

submitters whether “the executive override approach might generate a degree of mutual deference

between the judicial and executive branches of government”.40

4.7. Over a period two months in 2015 the Law Commission sought and received feedbacks on the proposals

made in its Issues Paper, where in the Foreword, the President of the Law Commission, Sir Grant

Hammond stated that it was “timely for New Zealand to consider how, as a society, we [the country]

wish to balance these interests of protecting national security and upholding the right to natural justice

and what roles we [as a country] consider the Crown and the judiciary should play”.41

The submissions

received came from a range of public and government stakeholders and, as can be imagined, were

diverse in the views expressed.42

4.8. Law Commission final recommendations:


40 New Zealand Law Commission The Crown and court: A review of the Crown Proceedings Act and national security information in proceedings NZLC R 135 (2015) at 142. See also New Zealand Law Commission National Security Information in Proceedings NZLC IP 38 (2015), at [6.19].

41 New Zealand Law Commission National Security Information in Proceedings NZLC IP 38 (2015), Foreword.

42 Please contact author if you wish to receive a summary of submissions.

4.8.1. In its final report the Law Commission recommended a broad definition of NSI being “information

that, if disclosed, would be likely to prejudice the security or defence of New Zealand; or prejudice

the international relations of the government of New Zealand; or prejudice the entrusting of

information to the government of New Zealand on a basis of confidence by the government of any

other country or any agency of such a government or any international organisation”.43

4.8.2. This definition requires the courts to consider the potential prejudice if information was disclosed -

thus the fact that information comes within the definition is not itself conclusive, nor does it mean

that information of that type can never be disclosed - rather the court must consider the nature of

the information and the seriousness of the prejudice relating to use or nondisclosure. 44

4.8.3. The Law Commission did not consider that the use of closed proceedings or special advocates in

substantive criminal proceedings was appropriate.45

4.8.4. In relation to civil proceedings the Commission recommended that it would be during the normal

discovery process that the government would be required to identify that there was information

that it did not wish to be disclosed as potentially prejudicing national security. It would then be

open to the non-government party to seek a preliminary hearing which: 46

4.8.4.1. would be closed; and

4.8.4.2. during which that party would be represented by security cleared special advocates; and

4.8.4.3. during which the court would consider whether the information would:

4.8.4.3.1. firstly, fall within the definition of NSI; and

4.8.4.3.2. secondly, whether any prejudice to national security would justify nondisclosure when

balanced against the interests of the other party; and (in such cases)

4.8.4.3.3. thirdly, whether the information should be excluded from the substantive hearing or

whether it could be used during the substantive hearing. In order for the court to

consider that a closed procedure could be used in the substantive hearing the court

would need to be satisfied that the NSI was sufficiently relevant to proceedings so that

it was in the interests of justice to use a closed procedure rather than exclude the

information. Where the information in question was beneficial to the government’s

case, the threshold would be much higher on the basis that the government was not

only seeking to withhold information but to use it against the other party. The Law

43 New Zealand Law Commission The Crown and court: A review of the Crown Proceedings Act and national security information

in proceedings NZLC R 135 (2015) at [5.47].



46 New Zealand Law Commission The Crown and court: A review of the Crown Proceedings Act and national security information in proceedings NZLC R 135 (2015) at [5.49] to [5.51].

Commission considered that a closed procedure would more likely to be in the

interests of justice when exclusion of the information would prejudice the non-

government party.

4.8.5. Finally, the Law Commission considered that given that the “judiciary has a constitutional role of

supervising the use of executive power” an executive override would have “undesirable

implications for the constitutional relationship between the courts and the [government]”.47

The

Commission was “not convinced that an executive override is actually necessary to ensure that

information that the [government] genuinely must not disclose, is not disclosed”.48

5. CONCLUSION - A NEW FRONTIER FOR THE JUDICIARY?

5.1. The New Zealand Law Society in reporting on the publication of the Law Commission’s Final Report

considered that the Law Commission’s “objective is to ensure that judges have the tools to properly

consider the interests for and against disclosure of such information”.49

To this end the

Commission recommended “clearer guidance for judges who deal with cases involving national

security information”. The Commission recommended the use of closed proceedi ngs (for civil and

administrative trials and also in challenging search warrants where the government claims the

information on which the warrant was granted should be withheld as being NSI) and special

advocates.50

It has yet to be seen whether the current New Zealand Government will take up the

recommendations of the Law Commission but if they do so then New Zealand will join a growing

trend amongst Commonwealth countries of using these tools to address one of the most

challenging issues facing the courts today – how to balance the interests of the individual against

the interests of the public, as captured under the banner of national security. The approach

recommended by the New Zealand Law Commission seeks to have the judiciary fulfill an important

role in terms of ensuring the nature of the interests in question is correctly identified and

considered. Time will tell whether this is a role the New Zealand judiciary is able and willing to

fulfil this task.

5.2. The New Zealand Law Commission’s report has been issued at a time when there is a review of the

Justice and Security Act pending in the United Kingdom and interest in Australia being shown as to

potential changes in the way classified material is dealt with. Thus with time we will also see the

47 New Zealand Law Commission The Crown and court: A review of the Crown Proceedings Act and national security information

in proceedings NZLC R 135 (2015) at 144.

48 New Zealand Law Commission The Crown and court: A review of the Crown Proceedings Act and national security information in proceedings NZLC R 135 (2015) at 144.

49 https://www.lawsociety.org.nz/news-and-communications/latest-news/news/disclosure-of-national-security-information-in-legal-proceedings-considered.

50 New Zealand Law Commission The Crown and court: A review of the Crown Proceedings Act and national security information in proceedings NZLC R 135 (2015) at [5.60] to [5.61] and Chapters 5 and 9 generally.

extent to which other judiciaries are enabled to and accept the challenge of dealing with the issues

discussed today.

the use of “national security information” in court proceedings › cws › resources ›...

Documents