Reviewing Use of Security Sensitive Information in the Courts

The Law Commission is reviewing the laws that determine how security sensitive information should be dealt with in court proceedings. The review will look at how to protect information that may prejudice New Zealand’s security.

It will also consider whether the current rules governing disclosure of such information in court, and the use of that information by the Crown or another party in the proceedings, need to be reformed.

The review will include consideration of the use of such information in administrative proceedings that determine individuals’ rights,such as those governing a person’s immigration status and eligibility for a New Zealand passport.

Sir Grant Hammond, the President of the Law Commission, said: “It is timely for New Zealand to look at the types of approaches that have been taken in allied jurisdictions which allow security sensitive information to be used in court under a carefully controlled process that involves disclosing it only to special security-cleared lawyers acting on behalf of a party.”

The issues covered by this review touch on important constitutional matters: the fundamental rights of citizens to open justice and a fair trial, the respective roles of the judiciary and the executive, protecting national security, and principles of open government and democratic accountability.

Geoff McLay, the Commissioner leading the project, said: “New Zealand takes very seriously the principles of natural justice and that parties should be aware of all information that is relevant to their case.”

This is reflected in the strict obligations placed on the Crown to give full discovery of relevant material to the other side in all court proceedings. However, in some circumstances the release of information may prejudice the national security or defence of New Zealand or our allies, make foreign nations and international organisations less likely to share important information with New Zealand in the future, and endanger public safety.

Commissioner McLay said: “The Commission’s objective in undertaking its review is to have laws that respect the requirements of a fair trial and natural justice while still protecting New Zealand.”

The Commission will undertake its review independently of government and other interested parties. Public consultation will also be a key component of the Commission’s process.

The public will have an opportunity to express their views on the issues in this important review when the Commission publishes an issues paper in mid-2015.

-ENDS-

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