Contents

Chapter 7
Disclosure and public interest immunity

Principles

Competing interests

7.26At the heart of consideration of public interest immunity are several potentially competing principles and factors. The starting point of this consideration must be the axiomatic requirement of justice that litigants must have an opportunity to present their case, which includes the opportunity to place evidence before the court.87 Parties to litigation have the right to bring all relevant evidence before the court.88 This principle represents both a private interest and a public interest, as not only does the proper administration of justice affect an individual litigant’s rights and interests, but it affects the confidence reposed by the public in the justice system.89

7.27However, the commitment to having all relevant evidence available at court proceedings is restricted by the doctrine of public interest immunity. It has long been acknowledged that in some cases relevant and important evidence needs to be kept secret where the public interest requires it. Because these two interests lead to opposing conclusions regarding whether evidence should be available in court proceedings, it has traditionally been the court’s duty where a public interest immunity claim is raised to balance the public interest considerations involved in order to determine the claim.

7.28It is considered that the government represents the public interest and so will bring an objection to discovery or disclosure of information where the public interest is imperilled. There are numerous public interests that governments have sought to protect through public interest immunity. Common grounds put forward in support of public interest immunity claims are that disclosure would:90

7.29If such information were disclosed, it could hinder the ability of Cabinet to debate freely and be fully informed while remaining collectively responsible for decisions, damage New Zealand’s international reputation, prejudice police investigations or harm informers. Some of these interests more self-evidently demand protection, whereas others are of a character where it is important to weigh the strength of the interest against those that would be curtailed by allowing the public interest immunity claim.

National security

7.30Claims of public interest immunity based on the need to protect national security, defence or international relations are something of a special category. The claims might relate to the contents of a particular piece of information, but may also relate to the mere existence of information. There can be a concern that even disclosing the existence of information, or the capability through which it has been collected, creates risks for New Zealand or its security relationships. A particular concern may be that, because New Zealand is heavily dependent on national security information being passed on to it by its allies, those allies could be reluctant to pass on information in the future without guarantees that it will not be made available in court proceedings. Courts have generally viewed claims to national security as non-justiciable, or barely justiciable, or as requiring judicial deference to exercises of ministerial discretion.91 The rationale is that these matters are considered to be firmly within the knowledge, expertise and judgement of the executive. Often what is at risk through disclosure in court proceedings is of relative significance to the country. In Konia v Morley, the Court of Appeal stated that in some classes of cases a minister’s statement that public interest immunity is required should be treated as decisive, such as when the safety of the state or diplomatic relations with another state would be put at risk.92
7.31When the matter was considered in Choudry v Attorney-General, the Court of Appeal made it clear that claims based on national security are not conclusive merely because of the grounds claimed,93 but that deference to a minister’s certification in these cases is particularly strong and only rarely would the court decline to grant immunity.94 The Court did note, however, that a wide spectrum of interests may fall under the “national security” umbrella, and that not all risks to national security call for equal treatment.95 Consequently, even in cases where public interest immunity is claimed on the basis of national security, it is likely that the court will give serious consideration to the claim by ensuring the nature of the interest is fully understood, and possibly by examining the documents and applying a balancing of interests test before public interest immunity is granted.96

The balancing exerciseTop

7.32The balancing exercise carried out by the courts in public interest immunity claims has been an opportunity to weigh competing interests to ensure public interest immunity is only used in appropriate circumstances. Lord Reid made the following helpful statement regarding the process required of the court in the House of Lord’s judgment in Conway v Rimmer:97

It is universally recognised that here there are two kinds of public interest which may clash. There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done. There are many cases where the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it. … But there are many other cases where the possible injury to the public service is much less and there one would think that it would be proper to balance the public interests involved.

7.33Cooke J’s statement in Brightwell v Accident Compensation Corporation provides further insight into the balancing process in the New Zealand context:98

What is always essential is to examine closely the issues and ambience of the particular case in order to decide, bearing in mind that a Ministerial objection is never to be set aside lightly, whether or not there is good reason for upholding it in all the circumstances. … The Courts have nonetheless moved to the position that clear and convincing grounds must be shown before they should allow an objection on such a ground to prevent a party from getting at the truth.

7.34The interests that weigh against withholding sensitive information that is the subject of a public interest immunity claim are significant to the legal system and structure of the government. The courts do not lightly override them. Declining to allow evidence to be discovered may well affect a litigant’s chance of success or even their ability to bring a case at all, and puts into question the right to natural justice.

7.35It should be noted that neither of the above cases involved issues of national security, for which the balancing exercise arguably requires greater weight to be placed on the interest in withholding the information than would have been the case in the exercise described by Lord Reid and Cooke J. However, as the Canadian Federal Court of Appeal acknowledge in this statement about the interaction of competing public interests, the public interest in national security is to be balanced against other public interests, including the fundamental principles underlying the administration of justice:99

It is the very essence of any judicial system deserving of public confidence that, above all else, every litigant be given a fair chance and be seen to have been given it. Justice may not be done, and it is most unlikely that it will be seen to have been done, if a party, even by reason of compelling public interest, is prevented from fully making out its case or answering the opposing case.

7.36The New Zealand Bill of Rights Act 1990 protects the “right to the observance of the principles of natural justice” and the “right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals”.100 The exercise of public interest immunity could well be a prima facie breach of both of these aspects of the right to justice, as the Crown is effectively given an advantage that is not available to others to the detriment of the individual litigant. Consequently, the courts have a responsibility to ensure that public interest immunity only applies where it is necessary and justified.
7.37Public interest immunity claims can also have an impact on the principle of the accountability of government. The impact on the accountability of government is another factor that the courts often must weigh in determining public interest immunity claims. Those who exercise public power are held accountable for their exercise of it. At times this accountability is only available through the courts exercising the judiciary’s constitutional role of supervising the use of executive power. The invocation of public interest immunity can prevent litigants from being able to bring proceedings against the Crown or from having the full truth exposed, thereby restricting the ability to hold the Crown to account.101 It is important that immunity is not used by the Crown for improper motives or to shield itself from criticism or embarrassment. As stated by the Supreme Court of Canada in Carey v Ontario, “[t]he purpose of secrecy in government is to promote its proper functioning, not to facilitate improper conduct by the government”.102

Changing societal values

7.38Case law in New Zealand on public interest immunity has been affected by the contemporary movement towards more open government. The Court of Appeal in Fletcher Timber noted that this had found statutory expression in the Official Information Act 1982.103 In Choudry v Attorney-General (Choudry) , this was described as being “part of the growth of greater controls over public power developed in recent decades by Parliament and the Courts”.104 These “evolving public attitudes”105 have led to greater scrutiny of public interest immunity claims and greater likelihood that the courts will look behind ministerial certificates. The Court of Appeal also noted in Choudry that section 27(3) of the Crown Proceedings Act was narrowed at the time of the introduction of the Official Information Act to give it a focus consistent with the new policy of openness, but that it was significant that the Crown retained an apparent power of veto regarding the release of documents.106 The Court did not comment on whether it considered that common law privilege existed outside of the provision.
7.39National security continues to have been approached with caution by the courts. Internationally in the 21st century the law regarding the secrecy of national security has taken on new significance following the events of 11 September 2001, the ensuing “war on terror” and its aftermath. Heightened concern to protect against terrorism has led to some governments taking a more restrictive approach to the ability to challenge claims for the protection of sensitive information. At the same time, some courts and commentators have evidenced a concern that states may avoid accountability for human rights violations that have occurred in this period by using public interest immunity to keep sensitive information out of court proceedings where such proceedings are the only effective remedy for these violations.107
87AAS Zuckerman “Public Interest Immunity – A Matter of Prime Judicial Responsibility” (1994) 57 MLR 703 at 703.
88Glasgow Corporation v Central Land Board [1956] SC 1 (HL) at 18−19; Conway v Rimmer, above n 79.
89Zuckerman, above n 87, at 703.
90A Hoel, J Kummrow and K Miller “Public Interest Immunity” (paper presented to the Victorian Government Solicitor’s Office Seminar “Access to Information: Public Interest Immunity, Legal Professional Privilege and Freedom of Information”, Melbourne, October 2012).
91Choudry v Attorney-General, above n 83, at 403.
92Konia v Morley, above n 84, at 461. In this case, relating to police conduct, the Court found that it was not one where the minister’s statement should be treated as decisive: “instead it is one where two aspects of the public interest have to be weighed one against the other”.
93Choudry v Attorney-General [1999] 2 NZLR 582 (CA). The Court considered that this had been the position since Corbett v Social Security Commission [1962] NZLR 878 (CA) in New Zealand and Conway v Rimmer, above n 79, in England.
94Choudry v Attorney-General, above n 93, at 593.
95At 595.
96In Choudry v Attorney-General, above n 93, the Court of Appeal found that the Prime Minister’s certificate lacked sufficient detail to allow it to properly determine the claim for public interest immunity and gave the Crown the opportunity to reconsider the matter and swear new affidavits. When it considered the matter again on the basis of a further certificate from the Prime Minister, the majority of the Court found that it was unable, responsibly, to go behind a ministerial certificate claiming public interest immunity on the basis of national security (Choudry v Attorney-General, above n 83).
97Conway v Rimmer, above n 79, at 940.
98Brightwell v Accident Compensation Corporation, above n 81, at 139.
99Gold v Canada [1986] 2 FC 129 at 135. See Jasminka Kalajdzic “Litigating State Secrets: A Comparative Study of National Security Privilege in Canadian, US and English Civil Cases” (2010) 41 Ottawa L Rev 289.
100New Zealand Bill of Rights Act 1990, s 27.
101Thomas J emphasised this point in his dissenting judgment in Choudry v Attorney-General, above n 83, at 411. He considered that because of the very nature of national security, the Security Intelligence Service cannot be held accountable by anybody other than the courts and it is the responsibility of the courts to perform a supervisory function to ensure that the Service is answerable in a society which places high value on the accountability of public servants.
102Carey v Ontario [1986] 2 SCR 637 at 673. The first prominent judgment in the United States addressing public interest immunity on national security grounds, or state secrets privilege, as it is known there, was United States v Reynolds 345 US 1 (1953). The case involved a tort claim by the widows of civilian observers killed when a military aircraft crashed while testing secret electronic equipment. The Supreme Court found that the privilege claim relating to the accident report and statements of surviving crew members was valid and that the plaintiffs could only continue the claim on the basis of other evidence. However, decades later when the accident report was declassified, it was determined that “[t]here were no national security or military secrets; there was, on the other hand, compelling evidence of the government’s negligence”. See United States State Secrets Protection Act of 2008: Hearing of JR 5607 Before the Subcommittee on the Constitution, Civil Rights and Civil Liberties 110th Cong (Washington DC, United States Government Printing Office, 2009) at 41.
103Fletcher Timber Ltd v Attorney-General, above n 78, at 296.
104Choudry v Attorney-General, above n 83, at 403.
105Fletcher Timber Ltd v Attorney-General, above n 78, at 296.
106Choudry v Attorney-General, above n 83, at 404.
107 Kalajdzic, above n 99, at 316–7; Martin Scheinin Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism A/HRC/10/3 (2009); and Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin), [2009] 1 WLR 2653 at [26].