Law Commission on Use of Security Sensitive Information in the Courts project
The Law Commission is seeking feedback on how information that may prejudice New Zealand’s security should be dealt with
in court proceedings. Should the current rules governing the protection or disclosure and use of security sensitive
information in court hearings in New Zealand be changed?
Today the Law Commission released its Issues Paper, National Security Information in Proceedings, which raises the option of a new law for using security-cleared special advocates where national security information
is relevant to a case before a court or tribunal. Sir Grant Hammond, the Law Commission President, said that this review
is an opportunity to create a robust regime that upholds the important rights of natural justice while also protecting
information related to national security interests.
“We take as a starting point the absolute necessity of ensuring that justice is done and is seen to be done. However,
New Zealand intelligence agencies operate in a global context and must be alert to security threats. If the disclosure
of security information in proceedings is likely to raise security risks, it is essential that mechanisms be available
to protect this information.”
The Law Commission is also considering the role of public interest immunity, under which information can be withheld
from proceedings. The Issues Paper released today builds on the earlier Issues Paper, A New Crown Civil Proceedings Act for New Zealand, released by the Law Commission last year. The Commission asks how information can be protected in cases where it is so
relevant that robust decision-making requires it to be taken into account.
New Zealand already has some legislation providing for the use of special advocates in some contexts. There are however
inconsistencies between the different schemes, for example that in the Immigration Act 2009 and in the Terrorism
Suppression Act 2007. International developments in this area of law also suggest that it is timely for New Zealand to
consider whether there are ways to better reconcile the important interests at stake: fair decision-making processes on
one hand, and the protection of information on the other hand.
Sir Grant Hammond said that in addition to considering what mechanisms should be used to protect information, the
Commission is also asking the important questions of how national
security information should be defined and who should make the decision that information must be protected.
“Should the Government have the ultimate power to prevent disclosure and decide security information is too sensitive to
give to the other parties in a court case, or should the courts determine this question and decide when mechanisms to
exclude or protect information should be used? These are complex issues that touch on important constitutional matters
including the respective role of the judiciary and the Government.”
The public are invited to submit on this important area of law. Submissions are open until 30 June 2015. The Law
Commission intends to publish final recommendations for reform by the end of this year.