Court use of security-sensitive information under review

International law professor Alexander Gillespie.

International law professor Alexander Gillespie.

Proposed changes to the law that could bring a veil of secrecy over court proceedings need to be carefully considered so civil liberties are not eroded, a top legal expert says.

Alexander Gillespie, a professor of international law based at Waikato University, said the discussion paper released by the Law Commission would not necessarily result in withholding information that New Zealanders had a right to be informed of.

The commission released its Issues Paper, National Security Information in Proceedings document on Monday. It raised the option of a new law for using security-cleared special advocates where national security information was relevant to a case before a court or tribunal.

The commission is seeking feedback on how such information that could potentially prejudice New Zealand's security should be dealt with in court proceedings and whether the current rules governing the protection or disclosure and use of security sensitive information in court hearings in New Zealand should be changed.

Gillespie said there was often a big gap between the standards deemed necessary for justice and the standards required for security.

"We have had 800 years of law that ensure that the rights of people and standards like the balance of probabilities and reasonable doubt are applied. It is very easy to lose part of those protections," he said.

"All of those rights that you have can just disappear. What is needed is a code of conduct or a robust process to ensure they are retained ... you have to keep watch on the watchmen.

"Everyone agrees that we need national security, but for civil liberties to survive you can't just use it carte blanche."

Commission president Sir Grant Hammond said the review was an opportunity to create a robust regime that upheld the important rights of natural justice while also protecting information related to national security interests.

"We take as a starting point the absolute necessity of ensuring that justice is done and is seen to be done. However, New Zealand intelligence agencies operate in a global context and must be alert to security threats," Hammond said.

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"If the disclosure of security information in proceedings is likely to raise security risks, it is essential that mechanisms be available to protect this information." 

The commission was also considering the role of public interest immunity, under which information could be withheld from proceedings. The issues paper built on the earlier Issues Paper, A New Crown Civil Proceedings Act for New Zealand, released by the commission last year. It asked how information could be protected in cases where it is so relevant that robust decision-making requires it to be taken into account.  

New Zealand already has some legislation providing for the use of special advocates in some contexts. There are however inconsistencies between the different schemes, such as the Immigration Act 2009 and in the Terrorism Suppression Act 2007.

International developments in this area of law also suggest that it is timely for New Zealand to consider whether there are ways to better reconcile the important interests at stake: fair decision-making processes on one hand, and the protection of information on the other hand.

Hammond said in addition to considering what mechanisms should be used to protect information, the commission was asking questions of how national security information should be defined and who should make the decision that information must be protected.  

"Should the Government have the ultimate power to prevent disclosure and decide security information is too sensitive to give to the other parties in a court case, or should the courts determine this question and decide when mechanisms to exclude or protect information should be used? These are complex issues that touch on important constitutional matters including the respective role of the judiciary and the Government." 

The public are invited to submit on this important area of law. Submissions are open until June 30.

The commission intends to publish final recommendations for reform by the end of this year.

 - Stuff

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