Chapter 7
Disclosure and public interest immunity

Options for reform

7.70It is undesirable for New Zealand to retain two partially conflicting provisions concerning the critical issue of what information the government has to discover. Moreover, there is a legitimate question as to whether either the purported conclusiveness of government certificates under section 27 or the reliance on judicial discretion in section 70 is the appropriate policy.

7.71Three general approaches could be taken to reform in this area. The first and narrowest is to make certain the hierarchy between section 27 and section 70 and, in doing so, make it clear whether the courts can overrule a decision of the Crown to withhold information. The second approach is to replace section 27, and possibly section 70, with a more comprehensive public interest immunity process that addresses the grounds for withholding sensitive information, the respective roles of the executive and the courts, a possible role for special advocates and the ability to disclose information in part or summary. The third approach is to introduce a new process for allowing the use of sensitive information in civil proceedings. This is separate to the question of how public interest immunity should be addressed and so the third approach could be taken in addition to the first or second approaches.

Clarification of hierarchy between section 27 and section 70

Option A: Clarify conclusiveness of certificate but make no other change

7.72One option is to clarify the conclusive status of a certificate under section 27 of the Crown Proceedings Act for the purposes of a judge’s determination under section 70 of the Evidence Act, but to make no further changes in this area. This would mean that the court could not look behind the decision of the Prime Minister or Attorney-General to issue a certificate and the information would be withheld automatically.

7.73While this is a simple approach, there would be no direct way of challenging the decision. It removes the judicial oversight from the process when the courts may be best placed to balance the competing interests at stake. Some might argue that this is appropriate in the areas of national security, but it may be too blunt an approach in many cases where more subtlety would be appropriate.

Option B: Repeal section 27(3) entirely leaving only section 70

7.74Another option is to repeal section 27(3) of the Crown Proceedings Act to remove the certification process altogether. A decision about whether information should be withheld from civil proceedings because of public interest immunity would be made by a judge under section 70 of the Evidence Act. The decision would be made on the basis of whether the judge considers that the public interest in the information being disclosed is outweighed by the public interest in withholding the information

7.75This was the Commission’s preferred approach during the initial review of evidence law in 1999. The Commission considered that the ordinary principles of discovery should apply to sensitive information and that it should be for the court to decide whether disclosure should occur.

7.76However, there is a strong case that in the area of national security a government needs to be able to be more certain of protecting against disclosure and that the Prime Minister should continue to be able to issue certificates for withholding information on national security grounds. It is also arguable whether section 70 is sufficient as it stands at the moment to resolve all of the issues that could arise in this area. Potentially some matters that fall under section 27 would not fall under section 70.

Option C: Amend section 70

7.77In addition to option B, it would be possible to broaden section 70 of the Evidence Act so that it covers the withholding of information on wider grounds. This could be done to address the gap that is likely to result from a repeal of section 27(3) of the Crown Proceedings Act. It particularly relates to matters that are subject to the Attorney-General’s certificate: the prevention, investigation or detection of offences.

7.78This option would address the concern about a gap in the ability of the Crown to seek to withhold information relating to the administration of justice if there is no longer the ability to use Attorney-General’s certificates. The matters that a court would need to consider in deciding whether discovery should be made under section 70 in relation to the prevention, investigation, or detection of offences are matters that courts are commonly required to consider and determine. Therefore, it would seem to be appropriate that the courts should be able to consider these matters under section 70.

A more comprehensive public interest immunity frameworkTop

Option D: New statutory process for public interest immunity

7.79A more comprehensive approach might involve a security certificate preventing disclosure of information to the opposing party, but setting out a procedure for appointment of a security-cleared special advocate who can examine the contents of the information and act in the interests of the party who does not have full access to it. This would reduce potential unfairness to that party. While this might apply more broadly, it is perhaps most appropriate in situations involving national security.

7.80This option could be broader. Along the lines of the Canadian or Australian approach, legislation could clearly set out the process by which the Crown would request public interest immunity and the court would consider it. It could involve notification to the Prime Minister or Attorney-General if it is likely that sensitive information would be disclosed, the Crown making a preliminary decision whether it wants the information withheld, and any decision to withhold being submitted to a court for determination. The grounds upon which a decision to withhold may be made would be set out in statute. These could be a balancing test like that currently under section 70 of the Evidence Act or something that gives greater weight to national security, as is the case in the Australian scheme.

7.81In order to adopt such an approach, it would be necessary to decide:

7.82The more elaborate process is only really needed if it is decided that the court is to have a role in determining these matters. It would be a more structured and formalised process than what occurs now, which would provide greater clarity for those involved.

7.83A further step could be taken in allowing the court to decide that the information should be released in part or in summary form, or in closed proceedings. This would be a step towards allowing sensitive information to be used in civil proceedings in a restricted way, where the information may otherwise have been withheld completely.

Option E: A special process for cases involving national security

7.84It is possible for claims for public interest immunity involving national security, defence or international relations to be distinguished from claims on other grounds because of the increased sensitivity and the special knowledge and expertise required to exercise judgement in these matters. Some would argue that a Crown objection to the release of material on these grounds should be conclusive or near conclusive, and should not be justiciable.

7.85A less wide-ranging approach than the previous option would be to allow public interest immunity claims generally to be considered under section 70 of the Evidence Act (option B), but to establish a new framework for the particularly sensitive cases of national security, defence or international relations. Arguably these claims require that particular deference is shown to the government’s wishes and therefore that the matter should not come before a court. However, given the desirability for accountability of government and protection of the right to justice, an alternative mechanism for reviewing the exercise of public interest immunity in those cases could be established.

7.86One option is to give the Inspector-General of Intelligence and Security the power to review complaints about the exercise of public interest immunity. Under the Inspector-General of Intelligence and Security Act 1996, the Inspector-General’s purpose is to assist ministers responsible for intelligence and security agencies with their oversight and to provide an independent reviewer of complaints.124
7.87If the Inspector-General were given a role of reviewing complaints about the use of public interest immunity, then there is likely to be a need to add to the statutory functions of the Inspector-General.125 While reviewing these complaints may well be within the expertise and knowledge of the Inspector-General, a question is raised about the constitutional appropriateness of the Inspector-General reviewing actions of a minister. The Inspector-General’s current functions involve him or her reviewing the actions of an intelligence and security agency at the Minister’s request or on his or her own motion, and reporting on these matters to the Minister.

A new process for using sensitive information in civil proceedingsTop

Option F: Closed material procedure permitting admission of classified evidence

7.88Although there is currently no pressing need for it in New Zealand, the consideration of the statutory context of public interest immunity presents an opportunity to look at introducing a new statutory scheme to allow sensitive information to be used in a protected way in civil proceedings. This goes beyond the law of public interest immunity as it potentially allows proceedings to continue to make use of sensitive information, whereas under public interest immunity this information would be completely excluded. To allow this to happen, statutory protections would be needed for how those court proceedings could operate. For instance, court proceedings involving sensitive information would not be able to be open to the public and may not be open to the litigant. Allowing the use of sensitive information in court proceedings, therefore, could come at the expense of elements of open justice and natural justice. However, arguably the mechanism could be set up in a way that ensures a fair hearing, consistent with natural justice.

7.89This scheme could be based on the United Kingdom’s Justice and Security Act 2013, which sets out a framework for the judge to allow elements of a civil case to be heard in closed proceedings, in addition to the open proceedings. The scheme involves security-cleared special advocates who can view the sensitive material and represent the interests of the party that does not have access to the information. The court must consider requiring a summary of the material to be provided to all excluded parties where it is possible to do so without damaging national security.

7.90The United Kingdom Act has been controversial, particularly because the need for it arose in the context of claims against the government for its alleged role in the extraordinary rendition and subsequent torture of individuals. The Justice and Security Act is seen by some as undermining the right to a fair trial and principles of open justice and natural justice because the litigant is excluded from the proceedings.126

7.91New Zealand does not have a similar context of individuals suing the government for such egregious human rights violations that are intrinsically linked to sensitive national security matters. Because there is no pressing desire for such processes at the moment, it may be that it is not considered appropriate or necessary to take the step of expanding the use of closed procedures in New Zealand. On the other hand, it may be useful to consider this issue in the context of the Crown Proceedings Act review in the current environment where there is no immediate pressure to introduce mechanisms allowing the use of sensitive information in court proceedings.

7.92Modifications to the United Kingdom scheme have been suggested, which would soften some aspects of it. For instance, limitations on the scheme’s use have been proposed such as requiring that the procedure can only be used as a last resort, and enhancing the right of review regarding the decision to use a closed material procedure. The development of such a general closed materials procedure would also require a degree of investment in an infrastructure for security clearing and supporting advocates.

124Inspector-General of Intelligence and Security Act 1996, s 4.
125As currently set out in the Inspector-General of Intelligence and Security Act 1996, s 11.
126John Jackson “Justice, Security and the Right to a Fair Trial: Is the Use of Secret Evidence Ever Fair?” [2013] Public Law 720.