Telecommunications Interception Bill ‘secret evidence’ provisions concerning

The Telecommunications (Interception Capability and Security) Bill contains inadequate safeguards and risks breaching defendants’ rights to natural justice in enforcement proceedings, the New Zealand Law Society says.

Law Society spokesperson Jason McHerron told Parliament’s Law and Order Select Committee today that changes are needed to the provisions of the bill designed to keep classified security information confidential.

The bill imposes obligations on telecommunication network operators to assist the Government on network security matters that may raise a risk to New Zealand’s national security or economic wellbeing.

The bill is intimately connected to the Government Communications Security Bureau and Related Legislation Amendment Bill, which is currently being considered by the Intelligence and Security Committee.

Mr McHerron told the committee that the Law Society has expressed concerns about whether the “intrusive” objectives of the GCSB Amendment Bill have been adequately justified, and will be addressing the Intelligence and Security Committee next week about those concerns.

Under the Telecommunications Bill, serious non-compliance with lawful interception and network security obligations will be dealt with in High Court enforcement proceedings.

At the Attorney-General’s request, the court can receive classified security information in the absence of the defendant or defendant’s lawyers. Instead, a special advocate will be appointed for the defendant.

Mr McHerron says the Law Society believes this part of the bill is vague and overly general, the threshold for receiving secret evidence is too low, and the role of the special advocate is not as well defined as it should be.

“The use of secret evidence in court proceedings is inherently unfair, and more safeguards need to be put in place to ensure the provisions to protect classified information impair defendants’ right to natural justice – a right affirmed by s 27(1) of the New Zealand Bill of Rights Act 1990 – as little as possible,” he says.

The Law Society says the process of the selection of a special advocate and its role should be further defined, as well as the process for such persons obtaining the necessary security clearance.

Other issues surrounding the appointment of a special advocate include whether the defendant has a choice in who will represent them and the extent of communication that is allowable between the special advocate and defendant.

ENDS

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