7.40In deciding whether to amend section 27, to simply repeal it, or to replace it with an entirely new approach to public interest immunity, several issues of significance will need to be settled.
7.41At present section 27 of the Crown Proceedings Act gives an apparently conclusive right to the Crown to prevent disclosure of documents on public interest immunity grounds (although, as discussed above, it is unclear whether this is affected by section 70 of the Evidence Act). Consideration of whether section 27 should remain in the law is effectively consideration of whether claims for non-disclosure of sensitive information should be able to be conclusively settled by the executive alone or whether such claims should come before a court for judicial decision.
The Commission does not consider that this special exemption from the ordinary requirements of discovery is justified. The provision is not consistent with the general principle that the court, not the Crown, is ultimately responsible for determining whether a claim to public interest immunity should be upheld.
7.43The Commission considered that section 70 of the Evidence Act obviated the need for section 27 and that the better approach was for the courts to decide these matters. Despite the Commission’s recommendation, section 27 was not repealed when the 2006 Evidence Act was enacted. Questions remain about whether there are any advantages in retaining section 27, and whether there would be any gaps left by its repeal. A repeal of section 27 would raise both practical issues and more fundamental issues of approach.
7.44From a practical viewpoint, it has been suggested that the repeal of section 27 would be disadvantageous because of potential gaps for documents that are not covered by section 70. The “public interest” protected in section 27 (the security or defence of New Zealand, international relations, any interest protected by section 7 of the Official Information Act 1982 and the prevention, investigation or detection of offences) may well be broader than the “matters of state” protected under section 70. In particular, matters relating to the prevention, investigation or detection of offences are likely not to involve “matters of state”. If section 27 were repealed, and with it Rule 8.26 of the High Court Rules, without the introduction of anything to fill the gaps, problems may be caused for the Crown in seeking to protect certain information from disclosure. If it was considered that the law was best served by relying solely on the Evidence Act process for public interest immunity, the issue of the gap caused by the repeal of section 27 could be remedied by amending section 70 of the Evidence Act to expand its application.
7.45However, repealing section 27 may not be the best policy approach to addressing claims regarding disclosure of sensitive Crown information. While it is appropriate and in line with case law for many public interest immunity claims to be decided by a court, there are concerns that the courts should not be deciding issues of national security or defence. The real question of principle is whether sensitive Crown information should be subject to judicial consideration (as it would be if section 70 were pre-eminent) or whether the Crown should be able to conclusively decide that disclosure should not be made.
7.46Section 27(3) of the Crown Proceedings Act refers to two types of certificate: one issued by the Prime Minister and one by the Attorney-General. If section 27(3) is retained, there is a question of whether jurisdiction for the issuing of both types of certificate should continue to be located in the Crown Proceedings Act. The two types of certificate relate to quite different subject matters. Certificates by the Prime Minister relate to New Zealand’s security, defence and international relations, while the Attorney-General’s certificates relate to the administration of justice (prevention, investigation and detection of offences).
7.47One suggestion is that the provision for the issue of certificates by the Attorney-General, at least, could be located more appropriately in section 70. This would mean that it would be subject to a judicial discretion about whether it should be disclosed, despite the certificate. These kinds of requests will raise issues with which courts ought to be familiar, and which they are well placed to evaluate. Unlike material relating to national security, which requires appropriate security clearances to view, there is no concern over judges examining material in the sphere of criminal offences, as this is well within the ambit of what judges are required to consider in the ordinary course of judicial business.
7.48It may be helpful to have a more comprehensive legislative framework for public interest immunity. Such a framework could outline the applicable procedure for assessing and challenging claims of public interest immunity, and could define roles and terms more clearly. For instance, public interest immunity could apply to information (as opposed to documents). It would also be possible to more clearly define the roles of the executive and the courts in deciding whether disclosure of sensitive information is possible, and to set out how the decision is to be made.
7.49This approach would allow the concern that public interest immunity does not allow for the adequate consideration of the needs of the other party to the litigation to be addressed. That party may be disadvantaged by not having the opportunity to argue that there is a case for sensitive information to be disclosed. Their interest clearly must be balanced against the need to ensure protection of the sensitive information. One way legislation could address this is through allowing the appointment of special counsel to view the material and represent the interests of the individual or entity concerned when there is a claim for public interest immunity. The Act could codify a process involving the appointment of a security-cleared special advocate.
7.51An even broader regime that more widely addresses the use of classified information in civil proceedings could also be considered. A claim for public interest immunity is a rather blunt instrument. It has the effect of preventing the disclosure of sensitive information and thereby excluding the information from a proceeding. This can prevent the proceeding from being able to be heard at all. Ways of allowing this information to be used despite its classified nature have been introduced overseas, for instance by allowing the partial disclosure or disclosure of a summary of the information or by providing for closed court hearings. Special advocates may also prove useful in the context of closed court hearings in order to represent the other parties’ interests. We will discuss these options in more detail in our summary of overseas approaches below.
7.52A consideration of this even broader new regime for protected information could be seen as extending beyond the bounds of the Crown Proceedings Act review. It would no longer be a question of public interest immunity and the role of executive certificates, but would be a more expansive consideration of how protected information can be used in civil proceedings. These matters do raise controversy because they pit considerations of fair hearing and natural justice against national security and matters of state. The Commission needs to address these issues. Contemporary cases, such as Dotcom, illustrate that a clear legal procedure of this nature could be useful.