Contents

Chapter 7
Disclosure and public interest immunity

Current law

7.4The doctrine of public interest immunity has long existed at common law. It prevented discovery where discovery of that material was against the public interest. One view was that the assertion of public interest immunity was conclusive. However, the modern view is, perhaps, that the courts should retain some role in assessing whether the assertion has been correctly made.

7.5Currently two different provisions in the statute book relate to the assertion of public interest immunity: section 27 of the Crown Proceedings Act and section 70 of the Evidence Act 2006.

Legislation

Crown Proceedings Act 1950

7.6Broadly speaking, the Crown Proceedings Act enables the Prime Minister in the case of national security, or the Attorney-General in the case of the administration of justice, to issue a certificate that essentially prevents discovery being granted for particular documents. Section 27 reads:

(1) Subject to and in accordance with rules of court,—
(a) in any proceedings (other than criminal proceedings) to which the Crown is a party or third party, the Crown may be required by the court to answer interrogatories if the Crown could be required to do so if it were a private person of full age and capacity; and
(b) in any such proceedings as aforesaid the Crown may be required by the court to make discovery of documents and produce documents for inspection if the Crown could be required to do so if it were a private person of full age and capacity:
provided that this section shall be without prejudice to any rule of law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.
(2) Any order of the court made under the powers conferred by paragraph (a) of the last preceding subsection shall direct by what officer of the Crown the interrogatories are to be answered.
(3) Without prejudice to the proviso to subsection (1), any rules made for the purposes of this section shall be such as to secure that the existence of a document will not be disclosed if—
(a) the Prime Minister certifies that the disclosure of the existence of that document would be likely to prejudice—
(i) the security or defence of New Zealand or the international relations of the Government of New Zealand; or
(ii) any interest protected by section 7 of the Official Information Act 1982; or
(b) the Attorney-General certifies that the disclosure of the existence of that document would be likely to prejudice the prevention, investigation, or detection of offences.

7.7The issuing of a certificate under subsection (3) can be subject to challenge by judicial review.

7.8Subsections (1) and (2) were intended for the purpose of simply enabling discovery against the Crown. Subsection (3) was inserted from 1983 to provide for rules to be made regarding Prime Minister and Attorney-General certificates.73 The timing of this amendment coincided with the introduction of the Official Information Act. The intention of subsection (3), along with the rule 8.26 of the High Court Rules and its predecessors, was to preserve the understanding that, despite subsection (1), the Crown can claim the additional public interest privilege.

High Court Rules

7.9The High Court Rules direct that an order must be made to prevent disclosure under section 27 if certain certificates are provided by the executive. Rule 8.26 provides:

An order made under section 27(1) of the Crown Proceedings Act 1950 must be construed as not requiring disclosure of the existence of any document if—
(a) the Prime Minister certifies that the disclosure of the existence of that document would be likely to prejudice—
(i) the security or defence of New Zealand or the international relations of the Government of New Zealand; or
(ii) any interest protected by section 7 of the Official Information Act 1982; or
(b) the Attorney-General certifies that the disclosure of the existence of that document would be likely to prejudice the prevention, investigation, or detection of offences.
7.10The phrasing of this rule is somewhat unusual. It repeats the conditions of section 27(3) for the making of rules securing that the existence of a document will not be disclosed, but states that an order under section 27(1) “must be construed” in a certain way. The rule gives the appearance that it is directing how the statute is to be interpreted. The current wording of the rule was inserted in 1986 following the amendment to section 27 in 1983.74 However, the rule, including the direction about how an order under the statute shall be construed, has its origin in the 1952 Supreme Court (Crown Proceedings) Rules.75 It appears that this unorthodox framing of the rule has been maintained in the statute book since 1952.

Evidence Act 2006

7.11Section 70 of the Evidence Act gives judges a power to determine whether particular information that relates to “matters of state” must be disclosed. It provides:

(1) A Judge may direct that a communication or information that relates to matters of State must not be disclosed in a proceeding if the Judge considers that the public interest in the communication or information being disclosed in the proceeding is outweighed by the public interest in withholding the communication or information.
(2) A communication or information that relates to matters of State includes a communication or information—
(a) in respect of which the reason advanced in support of an application for a direction under this section is one of those set out in sections 6 and 7 of the Official Information Act 1982; or
(b) that is official information as defined in section 2(1) of the Official Information Act 1982 and in respect of which the reason advanced in support of the application for a direction under this section is one of those set out in section 9(2)(b) to (k) of that Act.
(3) A Judge may give a direction under this section that a communication or information not be disclosed whether or not the communication or information is privileged by another provision of this subpart or would, except for a limitation or restriction imposed by this subpart, be privileged.

7.12This section has wider application than section 27(3) of the Crown Proceedings Act. It applies, for instance, to all litigation, including criminal litigation, whereas section 27 applies only to civil proceedings and discovery. Section 70 does not require a ministerial certificate to apply. It requires the court to undertake a balancing exercise to see whether public interest in disclosing the information outweighs the public interest in withholding it.

Common law public interest immunityTop

7.13Public interest immunity has existed in the common law for many years.76 It is uncertain to what extent common law public interest immunity continues to exist in tandem with the statutory forms in the Crown Proceedings Act and Evidence Act. The proviso to section 27(1) of the Crown Proceedings Act does appear to assume the existence of a rule of law of public interest immunity separate from statute. The Crown Proceedings Act does not affect claims for public interest immunity made by someone other than the Crown, so the common law could well apply in these cases. However, arguably section 70 of the Evidence Act may override common law public interest immunity as a cause of action.
7.14Common law public interest immunity does continue to have relevance to how public interest immunity is currently applied by the courts. The common law public interest immunity doctrine recognises that sometimes the public interest in non-disclosure of information regarding the state outweighs the public and private interests in the proper administration of justice.77 The immunity is a rule of evidence that restricts the disclosure of otherwise relevant evidence in legal proceedings where its disclosure would be against the public interest. It is a question of balancing the competing public interests in withholding information and the right of a litigant to be able to bring all relevant evidence before a court.
7.15 Under the common law, claims to public interest immunity have been made based on either the class to which information belongs or the content of the information. In claims based on the class of information, it is merely the fact that they belong to a sensitive category of information that is material, regardless of the actual contents of the particular information.78 In recent decades the courts have shown a greater willingness than in earlier times to inspect the contents of documents even where they belong to a sensitive class, such as Cabinet papers, on the basis that not every document in the class is automatically immune from disclosure.79

Role of the court

7.16Public interest immunity is generally claimed by the Crown, usually because the Crown is a party to litigation. It is the duty of the court, however, to enforce public interest immunity, whether it is claimed or not.80 The court has jurisdiction to inspect documents that are the subject of a public interest immunity claim. However, the court will not lightly disregard a ministerial certificate.81
7.17It is the duty of the court to prevent the use of information, even where there is no intervention from any minister, if possible serious injury to the national interest is apparent.82 The court has a role in safeguarding genuine public interests, but, as is discussed below, it must balance the competing interests involved.

Issues with current lawTop

7.18As the law currently stands, it is unclear how section 70 of the Evidence Act and section 27 of the Crown Proceedings Act relate to each other. The lack of clarity in the current law is unsatisfactory. It is also not entirely clear how section 27 interacts with common law public interest immunity.

Conclusiveness of a certificate issued under section 27(3)

7.19Under section 70(1), in considering whether material should be disclosed, the judge is to consider whether “the public interest in the communication or information being disclosed in the proceeding is outweighed by the public interest in withholding the communication or information”. It is uncertain whether the issuing of a certificate under section 27 in respect of that communication or information has conclusive status for the purposes of the judge considering an order under section 70. This would mean that the judge is not able to look behind the certificate to consider the merits of the disclosure. If the certificate is not considered conclusive, it would simply be evidence weighing against disclosure, although it would likely be strong evidence.

7.20The courts have not been called upon to settle this question. There are doubts about whether the two sections have equal weight or whether either one should prevail over the other. On one hand the Court of Appeal has referred to the Crown’s power as “an apparently conclusive power of veto” when discussing section 27(3).83
7.21On the other hand, a number of court decisions on public interest immunity generally have nonetheless indicated that the courts will look behind a Crown objection to the release of material on public interest grounds, although there may be some classes of material for which the courts will give considerable deference to ministerial certificates. Traditionally, it has been held in both the United Kingdom and New Zealand that it is for the court to decide whether a claim to public interest immunity is properly made.84 It is not clear whether the courts would take this approach when applying section 27(3).
7.22In Tipene v Apperley,85 the Court of Appeal stated that for some documents a minister’s certificate regarding public interest immunity should be decisive, such as diplomatic or defence papers, because the courts are not in a position to form judgements as to the prejudice to the public interest. It also stated there are other situations where the courts will balance the public interest to decide whether documents should be produced. That case involved a statement made to the police regarding the commission of an offence, and it was found that the court would consider the release of this type of information.
7.23In Fletcher Timber Ltd v Attorney-General (Fletcher Timber), the Court of Appeal held that a certificate claiming Crown privilege should state precisely the grounds of objection so that the court can evaluate the competing interests. In the absence of particularity or specificity a decision might often have to be made in favour of disclosure.86 The Court made observations on the contemporary movement towards open government. It found that while a minister’s conclusion that documents ought not to be produced always will be respected by the Courts, it can never become a substitute for informed judicial decision and so the certificate is not conclusive.

Textual issues

7.24A concern has been noted about the reference to the “existence” of a document in section 27(3) rather than to the content of a document. It is often not just the existence of the document that the Crown wishes to keep confidential, but some or all of its content. On one reading of section 27(3), if a party already knows of the existence of a document it is not possible for the Crown to certify that it should not be disclosed. It seems unlikely that this was the intention of the provision.

7.25A further issue with section 27 is its need for modernisation. It refers to disclosure of a “document”. Document is now an outdated term and would not cover all of the forms of information that would be desirable for the provision to cover. Section 70 of the Evidence Act refers to “communication or information”, which is a more helpful term.

73Crown Proceedings Amendment Act 1982, s 2(2).
74Judicature Amendment Act (No 2) 1985, sch 1.
75Supreme Court (Crown Proceedings) Rules 1952, r 24 inserting r 167C of the Code of Civil Procedure.
76It was formerly referred to as “Crown privilege”, but this is now considered an inaccurate description of its effect because public interest immunity is determined by a court pursuant to an evaluative process rather than simply being claimed as a privilege by a party (Duncan v Cammell Laird & Co Ltd [1942] AC 624 (HL) at 641: “Crown privilege is not a happy expression”).
77Hamish Stewart “Public Interest Immunity after Bill C-36” (2003) 47 Criminal Law Quarterly 249 at 250.
78Fletcher Timber Ltd v Attorney-General [1984] 1 NZLR 290 (CA).
79Elston v State Services Commission [1979] 1 NZLR 193 (SC); Conway v Rimmer [1968] AC 910 (HL).
80Gisborne Fire Board v Lunken [1936] NZLR 894 (CA); Duncan v Cammell Laird & Co Ltd, above n 76, at 642.
81Brightwell v Accident Compensation Corporation [1985] 1 NZLR 132 (CA) at 157; Choudry v Attorney-General [1999] 2 NZLR 582 (CA); Choudry v Attorney-General [1999] 3 NZLR 399 (CA).
82Conway v Rimmer, above n 79, at 952.
83Choudry v Attorney-General [1999] 3 NZLR 399 (CA) at 404.
84Conway v Rimmer, above n 79; Konia v Morley [1976] 1 NZLR 455 (CA); Fletcher Timber Ltd v Attorney-General, above n 78.
85Tipene v Apperley [1978] 1 NZLR 761 (CA). 
86Fletcher Timber Ltd v Attorney-General, above n 78.