ABC Updates
18 February 2022
HEADS UP ON
LEGISLATION BEING SLIPPED THROUGH PARLIAMENT THAT IS LIKELY TO FURTHER
EXPAND SURVEILLANCE POWERS
On December 21, Gordon Campbell wrote on ‘Scoop’:
“With [so much] going on, it is hardly surprising that the Security
Information in Proceedings Legislation Bill slipped into Parliament in
late November, virtually unnoticed. This was unfortunate, because the
Bill quietly erodes the principles of natural justice in this country.
In essence, the Bill formalises a system whereby, in an expanding
range of courtroom situations, people will be unable to know, let
alone challenge, all the evidence being used to prosecute their case.
Security Information in Proceedings Legislation Bill Government Bill
A Law Commission’s report [(NZLC R135).2015] found that current
frameworks for dealing with national security information either in
court or in administrative decisions have developed in an ad hoc
manner. This approach lacks clarity and consistent protections for
both individuals and national security. Current settings provide
insufficient assurance to the Crown that national security information
can be adequately protected if it needs to be used in court
proceedings. This lack of assurance creates a risk for New Zealand
both domestically and internationally in matters relating to security
and international relations
Current settings may disadvantage non-Crown parties who may not know
the reason for a decision against them. The non-Crown party may not be
in a position to challenge the decisions or actions of the Crown.
These disadvantages have implications for fundamental procedural and
natural justice rights
The Bill adds to the Law Commission’s recommendations in 2 ways.
First, the Bill adds a second civil process in which the
Attorney-General and the Minister of Foreign Affairs certify that
information is security information and that it cannot be disclosed to
other parties in open court. Second, the Bill adds a closed pre-trial
criminal process in which the court determines whether the information
is security information, before deciding on next steps.
The main changes in the Bill are as follows:
• for civil proceedings,—
• a new legislative regime to cover the disclosure and management of
security information in civil proceedings:
• a ministerial certificate option, where the Attorney-General and the
Minister of Foreign Affairs sign a certificate guaranteeing the use of
court orders that ensure a higher degree of protection of security
information in appropriate circumstances:
• a standard closed court procedure that would be available to the
court in all civil cases. Where a special procedures order is made,
the court will appoint a security-cleared special advocate to
represent the non-Crown party:
• a discretion for the court to dispose of, or otherwise deal with, a
civil proceeding that cannot be fairly determined by any of the
options available to the court to manage the security information:
for criminal proceedings,—
• a standard pre-trial closed court procedure for disclosure that
would apply in all criminal cases that involve national security
information, where the court considers this is necessary to protect
information, which includes providing a security-cleared special
advocate to represent the non-Crown party:
• a new pre-trial admissibility hearing for the court to determine how
national security information should be protected at trial in criminal
proceedings:
• confirmation that the closed court procedure excluding the defendant
is not available at trial in criminal proceedings:
• for administrative decisions,—
• minor changes to align processes affecting the rights of individuals
whose cases involve security information within different
administrative schemes and to standardise provisions that allow for
the judicial review of and appeals against those administrative
decisions:
• replacing the court proceedings stage currently included in several
existing legislative schemes for managing security information in
administrative decision making with the new civil proceedings process
in the Bill, 2 Security Information in Proceedings Legislation Bill
Explanatory note which will apply to judicial review of, and appeals
against, those decisions
This Bill needs to be fully analysed and people informed about it.
ABC would be happy to hear your comments
Anti-Bases Campaign