Security Information in Proceedings Legislation Bill

on behalf of the Minister of Justice: I present a legislative statement on the Security Information in Proceedings Legislation Bill.

ASSISTANT SPEAKER (Hon Jenny Salesa): That legislative statement is published under the authority of the House and can be found on the Parliament website.

Hon PHIL TWYFORD: I move, That the Security Information in Proceedings Legislation Bill be now read a second time.

This bill forms part of the Government’s response to the Royal Commission of Inquiry into the terrorist attack on the Christchurch mosques. The bill touches on important constitutional matters, such as the fundamental rights of people to open justice and a fair trial, the respective roles of the judiciary and the executive, protecting national security, and the principles of open government and democratic accountability. This bill provides the courts with a clear and consistent process to manage national security information in both civil and criminal proceedings. Currently, there is no clear path for courts to take when national security information is relevant to a case. The courts need to establish a suitable process each time; this can be contentious, costly, and uncertain.

Our current general law does not provide enough assurance that security information can be adequately protected if it needs to be used in court proceedings. This creates domestic and international risks for New Zealand in terms of safety, security, and international relations. The lack of a clear process for protecting security information in court could lead to the Crown deciding not to bring proceedings or to settle a claim against it.

The current law also disadvantages the person who is affected by a decision of the executive that involves national security. The affected person may not fully know the reasons for the decision against them or the full details of a case against them. The lack of full disclosure puts the affected individual at considerable disadvantage if they want to challenge the executive’s actions or decisions. Under normal conditions, this would not be tolerated in our courts.

This bill will help to maintain public confidence in the operation and integrity of the justice system by providing a clear approach to protecting national security information while maintaining principles of fairness and natural justice. The bill will ensure that New Zealand’s framework for managing national security information is consistent with comparable jurisdictions where similar legislation is in place. These include Australia, Canada, and the United Kingdom.

I want to briefly highlight the key aspects of the bill that will ensure a fairer process for managing national security information in the courts. The bill will enable closed court substantive hearings but only where the risks of disclosing the national security information justify this departure from ordinary open processes. A closed procedure would take place in a secure court facility with only security-cleared personnel and the judge present. The court would be closed to the public and the media.

The non-Crown party will not be present, but safeguards in the bill will mitigate this disadvantage. The non-Crown party’s interests will be represented by a special advocate. Special advocates are highly experienced security-cleared lawyers who will act in the interest of the person who is not allowed to see the national security information that is alleged to be relevant in their case. The special advocate and the judge would have access to the national security information. The judge would be able to direct that a summary of the information is prepared for the affected person so that they can then instruct the special advocate.

In most cases, the judge will assess whether the information is national security information as claimed by the Crown. The judge will also decide how the information should be protected in the proceedings. The judge will have a range of options including providing redacted documents to the affected person. The judge may also exclude certain information.

In certain cases, the judge will not determine whether the information is national security information. This is where the Attorney-General and the Minister of Foreign Affairs certify that information as national security information. This process is intended to be reserved for information of particular sensitivity where certainty is needed to protect the country’s security interests and our foreign partner relationships. In these cases, the judge can only order that the case is heard in a closed court or that the information is excluded. However, even in these cases, the judge will be able to see the information that is covered by the certificate.

It’s important to stress that closed court processes will not be available in a substantive criminal trial. The bill retains the fundamental position that a defendant will always be present during a criminal trial. However, the bill does enable a new pre-trial process to enable national security information to be used and protected at a criminal trial.

The bill also replaces existing procedures in other legislation where national security information is used in decision making, like the Passports Act, the Terrorism Suppression Act, and the Overseas Investment Act, among others. This means there will be a consistent set of protections and procedures where national security information is relevant so that affected individuals have fundamental rights. The bill does not affect immigration proceedings, however as immigration will continue to retain its own scheme.

In conclusion, I want to thank the Justice Committee for their careful consideration of this bill. The bill received cross-party support at the select committee stage, and I thank all parties for their constructive participation in the consideration of the bill. I’m confident that this bill strikes the right balance between the need to protect security information and the need to ensure that the fundamental principles of justice are not unjustifiably limited. I commend this bill to the House.

大家好. The question is that the motion be agreed to.

Madam Speaker, thank you. I pick up where the Minister left off by noting that parties have unanimously supported the bill to this point, and National continues to offer its support to the Government in legislating in this space, which concerns not only fundamental human rights, so far as they relate to persons in a courtroom, but also in matters of national security. And I think one should not lightly depart from the convention that these matters are dealt with on a bipartisan nature. We’ve seen nothing that would indicate that we should.

So I start, as I say, by advising the Minister and his colleagues that we will continue to support the bill. At the conclusion of his remarks, the Minister also made a point of thanking the Justice Committee for its hard work in considering the bill. I would also like to acknowledge the submitters who took their time and lent considerable expertise, actually, to the question that the Justice Committee was considering. I’m not a permanent member of that committee, but I take an interest in this particular matter—it’s somewhat within my portfolio, for the Opposition, of courts matters—so I was pleased to be able to join colleagues from across the House on the Justice Committee for at least some of its consideration.

The general context of what we’re discussing, I think, is worth setting out, because the technical detail, important as it is, flows really from those big picture questions of what we’re considering. We’re considering, at a level, the difference between the competing rights of the State and an individual, and we’re also considering on a level weighing up security interests versus civil rights—namely the right of a person to have at least minimum standards of criminal procedure observed and accorded to them. And to the extent that we are also interested in the openness and transparency of the justice system, and justice—as has famously been observed—being not only done but seen to be done. To that extent, we’re also interested in the rights of society as a whole to know that there are robust procedures in a courtroom. So all these different competing interests do need to be weighed carefully.

I think that the Justice Committee did a good and thorough job of weighing them, but it’s also worth noting, of course, that when we’re talking about balancing rights where minimum standards of criminal procedure are concerned, those rights are generally considered irreducible as far as they go. So it’s not reasonable to make a trade-off and have a bit less of that safety of conviction, so to speak, when weighing these matters. So one has to take very seriously the fact that a person’s right to a fair trial mustn’t be reduced below that level.

The access to justice aspect of the bill and what the legislative intent is is really important. Access to justice in this country is significantly under threat at the moment. Not—I will state bluntly—through any design or deliberate action, I think, but the sheer difficulty of reaching court, having one’s matter, whether civil or criminal, heard in a timely fashion, and the cost involved. These are profound challenges to the rights of Kiwis to have access to justice in our time. And the access to justice issues should be seen as part of that overall mix; albeit that they concern, particularly, the ability of a person to be able to be represented by a lawyer or “advocate”, I think, to use the phrase in the legislation. In fact, a person who is subject to proceedings such as the bill covers actually will not necessarily be able to choose their own lawyers. That’s a bit of a departure from the usual way of things, and there are reasons for that. There are good reasons that are justifiable, and indeed justified, by the bill. And as the select committee has made clear in its consideration, its report, these things were, indeed, carefully weighed.

I do acknowledge that submissions were made that emphasised that it was important not to treat lightly a person’s right to be able to have good legal representation. And, of course, it’s to be hoped or—more than that, actually—expected and demanded that a person will have good legal representation, and there are certain mechanisms in the bill that are designed to ensure that. But we should all be diligent as lawmakers and policy makers and those who care about the rule of law to ensure that that is the case, as far as we can tell, and certainly to maintain an active interest in the matter and to monitor the way that the bill is being used going forward.

There’s a bit of a theme of alignment in the bill, and these themes, again, sort of ran through the select committee’s consideration. There’s, on a level, alignment between criminal and civil jurisdictions. Not strict or not exact alignment. And, of course, they are different types of matter that could come to a court, but whereas often one would think instinctively of a matter that involved national security as perhaps naturally leaning towards the criminal side of the ledger—and an obvious example might be terrorism or espionage—in fact, there might well be civil proceedings. There might be a dispute between a party in which it’s relevant that there is a national security aspect or question over the behaviour or conduct of one party. So it’s appropriate that civil and criminal proceedings are both covered in the bill and, to the extent that makes sense given that they’re different jurisdictions, similar philosophy is applied to those big questions, as I mentioned before, of allowing access to information, legal representation, and so on.

I think it’s helpful for courts not to have to rely on the very general principles that, as the Minister has read well, do otherwise have to be employed by courts. So we’ve got something on the statute book that will provide at least a measure of certainty; albeit in the individual circumstance of any case, they’ll have to apply it as best they can and make those judgments in both sense of the phrase as they go.

Finally to the Minister’s point, again, about comparable jurisdictions. I think this is a worthwhile point in the sense that the Minister made it but also in another one. And if we say, well, we should derive some comfort here at the bottom of the world and literally as an island and somewhat potentially insular in our way of thinking at times, to look beyond the horizon and say, “Well, are we doing things in the same way”—not that we should necessarily do things in the same way for the sake of it, but if comparable jurisdictions that have similar legal systems are doing a similar thing in their respective courtrooms, then that is probably as good a guide as any, at least as a starting point, that we’re on the right track. But also, given that often times these same nation states are our security partners—be it allies or friends or very, very good friends or friends with military benefits or however we might describe them—it makes sense that we have alignment there too, because it will mean that there’s a degree of trust and confidence for the sharing of information, maybe even transport of individuals in question, interoperability, intelligence, and so on. So it all makes sense from that point of view.

I will just note, because I’m interested in the operation of the Criminal Cases Review Commission, that the Justice Committee, I think probably as prompted by the excellent advisers to that body, thought it would be helpful to clarify whether the Criminal Cases Review Commission was in or out. The report of the Justice Committee says that whereas the bill is meant to apply to courts and tribunals, the slightly different beast that is the Criminal Cases Review Commission could be considered as either. Well, actually, specifically they said that it has a primary function of investigating and reviewing convictions and sentences and deciding whether to refer them to an appeal court and that it carries out that function in an investigative manner rather than a judicial one. I’m not sure that wording’s quite correct. If I’d thought about it at the time, I probably would have suggested a wording that talked about investigative versus adversarial approaches. The function is judicial either way, I think, but in any case the right decision, I think, was made by the committee, which is to say that for the sake of certainty the commission should be either in or out and it’s out, so the bill doesn’t apply to that.

So I haven’t even got near the particular aspects of the way that the evidence could be determined prior to a trial, whether it’s, again, civil or criminal, but my time approaches the end. So I will say probably at this point that I will look forward, as I know you will look forward and everyone in the House will look forward to hearing what we will have to say about that. Well, actually, colleagues in the remainder of the debate might have things to say about that, and they’ll probably say it more sensibly than I would at this time of the week anyway, even several coffees in. So I’ll leave my remarks there, except to say we continue to support the bill for the reasons we’ve said and look forward to hearing the rest of the discussion about it.

你好, Mr Speaker. The Security Information in Proceedings Legislation Bill implements the majority of the work undertaken by the Law Commission back in 2015. The task that they undertook at that time was to review how national security information is treated in our courts, and particularly around how decisions are made dealing with that sensitive information. The question at the heart of that inquiry by the Law Commission was: what should happen when information relevant to legal proceedings—how is that treated when disclosing it might prejudice New Zealand’s national security? So, really, it’s one of the toughest issues to be able to balance up in how we map that out. The Law Commission found a number of inconsistencies in terms of how things have been operating and gaps in the current law, so this piece of legislation set out to try and close some of those gaps and give greater clarity in terms of the process—really, what we’re needing to do—hopefully, before it’s required.

The current law doesn’t provide enough assurance that national security information can be adequately protected if it needs to be used in those courtroom settings, and this potentially creates a national security risk for our country. The current law can also disadvantage effective people who may not know the reason for a decision against them. So the Law Commission recommended that legislation clear up this inconsistency, and, really, that’s done in the nature of having and maintaining fairness and natural justice. So those were the principles forefront in the minds of those in the Justice Committee when considering this legislation and how we can strengthen it further.

The bill set out to achieve those objectives, and it’s important that I set out right at the start that this forms part of a larger suite of measures that are designed to strengthen an end-to-end system and prevent and respond appropriately to terrorism. It also supports our Government’s wider response to the 15th March terror attack in Christchurch.

So the committee received 14 submissions in total, and we heard from three of those. A key feature of the bill is that the court should be able to order a closed procedure when dealing with national security information. It will be for the courts to decide how to manage national security information and where the risks of disclosing that information are sufficiently serious to justify withholding it or not. In cases where it is in the interest of justice to exclude that information from proceedings, it will be withheld completely. The closed procedure would take place within a secure court facility with only security-cleared personnel and the judge present, and the court would be closed to the public, media, and any non-Crown parties.

A key feature of this bill—I won’t go through all of it, because there is a lot in this bill, so I’m just going to highlight some key features of the bill and then quickly go over the changes that the select committee did as part of its process of looking at the bill. A main feature is the role of special advocates in closed procedure. Special advocates are security-cleared lawyers who act for people who are not allowed to see national security information in their case because the court has decided that disclosure to them will have a security risk. So the special advocate and the judge would have full access to that information, and the judge would be able to direct that a summary of that information is prepared to the affected person and their lawyer. So it, essentially, acts as a buffer in that sense to make sure that there’s a good access of information but it’s also protecting the interests of national security at the same time. Closed hearings and special advocates are already used by the courts, but this bill will create clear rules to be followed in all cases where the closed court procedures and special advocates are used.

As already mentioned, the bill does not provide for the use of closed procedures in substantive criminal trials. The bill retains the fundamental position that a defendant would always be present during a criminal trial. However, what the bill does do is provide a new pre-trial process that enables national security information to be used but protected at that criminal trial. The court would need to decide in a closed court pre-trial hearing whether admitting national security information in protected form is consistent with the defendant’s right for a fair trial.

To cut to where some of the interesting discussion happened, if you’re interested in this sort of thing, which I am, it was really revolving around clause 12(1) of the bill, that provides that “the Crown must give the authorised court access to any security information at issue in the specified proceeding[s].” That means that the Crown would also give any special advocate and any special adviser access to that security information at issue.

When the committee was taking a look at this, we considered clause 12(3), which as introduced would give the court discretion not to apply the requirements set out in 12(2) if the court decided that a special advocate or special adviser should not have access to that information. We raised some concerns around this area and recommended that clause 12(3) be amended to incorporate a threshold for the use of the discretion. The threshold would align with the existing powers and limitations already in place under the Evidence Act 2006, including the threshold for excluding evidence, in section 8 of that Act. This would clarify the circumstances in which the court may wish to rely on the discretion provided in clause 12(3).

I’d like to give special acknowledgment to my colleagues on the Justice Committee, Vanushi Walters, Arena Williams, Emily Henderson, and Willow-Jean Prime, who all worked and utilised their strong—

Hon Paul Goldsmith: Hey—hey!

GINNY ANDERSEN: Oh, and there were some National people who occasionally paid attention, like Mr Goldsmith. So I’d like to acknowledge that there are some really good, strong legal backgrounds that were utilised in making sure this bill is as good as it possibly could be.

Look, I’ll conclude by stating that this forms part of a wider range of end-to-end processes to make sure that New Zealand’s justice system is fit for purpose, particularly dealing with modern challenges such as terrorism and how we treat information in our courts to ensure that people get a fair trial but, at the same time, protect our national security. I commend it to the House.

Thank you, Mr Speaker, and it’s my pleasure to speak on the second reading of the Security Information in Proceedings Legislation Bill, which the National Party is supporting, and, indeed, I understand the entire House has supported to this point. As Ginny Andersen, the previous member, indicated, it has been something that has come out in response to a royal commission’s report back in 2015.

If we cast our minds back to 2015, we can think of, in many respects, a different era. Yes, terrorism was still, of course, a major issue globally, particularly following 9/11, but had been around, sadly, for longer than that, but we in New Zealand hadn’t experienced it firsthand to the same degree. We of course have subsequently, very sadly, but also the global situation has changed in relation to national security quite substantially, with a major invasion within Europe for the first time since the Second World War. Of course, there was the situation in Crimea before, which people, in hindsight, didn’t pay enough attention to.

We are now living in a very different world, sadly, in the last few years, and, of course, there are ongoing tensions in our part of the world that we are concerned with, but it seems like a very distant time when the previous Prime Minister Helen Clark talked of the benign security environment in which we lived. That certainly doesn’t feel the case any more, so it’s absolutely appropriate that we should be always thinking about how we, as a country, prepare ourselves and ensure that our laws are appropriate, just as we do so in the broader context in terms of ensuring that our economy is strong so that we can best defend ourselves and that our relationships are strong so that we can best defend ourselves.

In that context, this bill is part of the tidying-up work that we need to ensure that our courts system has an appropriate framework in place to deal with national security information when it comes to the court or in administrative decisions. These rules and approaches and frameworks have developed in an ad hoc manner over the years before, and there was a certain lack of clarity and some inconsistency, both in regard to individuals and in regard to national security. So this bill sets out to address some of those issues in terms of an overarching legal framework to address these issues.

Previous speakers have dealt with the details of the bill, and there probably doesn’t appear to be a great advantage in my going on in great detail. But, just briefly, if I were to make the point that the bill establishes a new legislative framework to cover the disclosure and management of security information. First, in civil proceedings, where an application is made by any party—and it most probably will be the Crown—for information to be treated as security information, the court will be required to use a closed-court process and, in the preliminary hearing, closing the court proceedings to the public and the media and non-Crown parties. Now, of course we don’t want to be doing this as a general rule, and there needs to be a high threshold for this, and so that’s obviously the underlying situation in all these cases. The judge must be security-cleared, and the special advocate can have full access to the security information.

There are two different approaches: there’s the general track, and then what’s called the national security information (NSI) certificate track, which gives the ability for the Attorney-General and the Minister of Foreign Affairs to jointly issue an NSI certificate in cases as an alternative to the general track. When it comes to administrative decisions, there’s another set of proceedings, and also in the criminal side, again, there are other things.

So the issues that we dealt with as a committee—and I want to acknowledge the work of the chair of the committee, who worked hard in this area. There has been a general comity across the committee on some aspects, and, to be honest, there weren’t a huge number of submitters on this bill. I mean, three came and gave oral submissions. There were a few more written submissions, but it wasn’t controversial, particularly, in that sense. But there were one or two who were concerned with balancing the protection of security interests against our fundamental principles of open justice being a very important element. There were some who thought it didn’t strike that balance correctly, but most of us in the House—I think almost all—conclude that it does.

There was some discussion about the role of the special advocate, and I don’t need to go into the details there other than to say that, quite often, people look at Parliament and conclude that there is nothing but discord and conflict, but there are actually many times when we in the House come together across the aisle in the spirit of bipartisanship to deal with some broader issues—particularly in relation to our national security—and this is one of them. That happens surprisingly often. So it’s with those thoughts that I conclude.

你好, Mr Speaker, and thank you for the opportunity to take a call. Many people say that security is the first obligation of the State. That may well be true, but it’s certainly not a simple one. It presents a perennial task of assessing security risks but also the task of continuing to ask ourselves whether we have a fair balance in the law. Other speakers have referred to the 2015 Law Commission recommendations from which this bill makes proposals. The Law Commission, itself, recognised this challenge when they said in their report: “There is no doubt that, in some situations, the need to protect national security means that information cannot be dealt with in open courts. However, the protection of the rights to natural justice and open justice must be preserved, as far as possible, as these are values that lie at the heart of our democratic framework and way of life.” This was certainly a feature of our discussion at the Justice Committee.

I am going to extend a hand over to congratulate colleagues on the Opposition benches as well. I do think we had an extremely collegial approach to this bill—in particular, to Joseph Mooney, Chris Penk, and Nicole McKee, who had a number of conversations with us over the breaks because we were really determined to ensure that where we fell was on a fair balance. One of the issues we discussed was in relation to clause 12(1) and (2), which required the Crown to provide information to the authorised court but also to the special adviser who was there to represent the interests of the accused. What we discussed was clause 12(3), which created a new power to potentially withhold some of that information. The discussion we got into was whether a new power or a new threshold was being created by the insertion of clause 12(3). So the recommendation that came out from select committee was to be clear that clause 12(3) was only reaffirming the measures or the standards that are already in place in terms of the Evidence Act.

I won’t speak to the other aspects of the bill other than to say this is a great example of where we can have a really robust, collegial conversation about something that is of critical importance to New Zealand’s security. I commend this bill to the House.

Thank you, Mr Speaker. Others have talked about the history of this bill and have pointed to the events of March 15, the terror attack—the gravest we’ve seen in living history here in New Zealand—and then others still have pointed to 9/11. I see the origin of this bill in New Zealand law coming out of the Ahmed Zaoui case, which was in the context of the war on terror, when one morning, New Zealanders—including myself as a young baby law grad interning at Amnesty International—woke up and found that there was an Algerian asylum seeker being held without charge or trial on national security secret information that he couldn’t access, and no lawyers and no judges could access. That went on for two years.

We realised that our then Labour Government—and it is nice to see a Labour Government bring this bill—had adopted national security legislation that allowed for that to happen because we were so keen to cooperate with our so-called allies who had gone into war post 9/11. We realised that the rule of law was slipping in our world in very close proximity to us all, but also across what we normally call the free world, and, in the wake of that, we saw Guantanamo Bay and we saw the Zaoui case being fought out here.

Eventually, it was the courts that freed Mr Zaoui. It was the courts that put in place a process which I think this bill attempts to legislate for, where there could be a special advocate—where there was a requirement that actually, if the executive says it has secret classified information, well, then it better give that level of security clearance to someone that can actually advocate for the accused person with such grave consequences.

Yes, the war on terror still wages on, and, yes, post - March 15th we’ve become a nation that’s a bit more aware of our own national security apparatus needing to be updated and futureproofed. But I do also want to remind us all that in New Zealand terms, the only terror group or entity that relates to March 15th in terms of being a white nationalist group or holding the ideologies that led to March 15th is still only that particular terrorist. So this bill is much more likely to be applied to those like Mr Zaoui, who was then classified as a terror threat as an Opposition MP in Algeria, and that was his only crime, as it turned out, once we saw that information. It wasn’t accusations of terror at all, even though our national security agencies had taken the word of the Algerian Government.

So this is why it’s so important to get this right, because national security information is something that’s shared across the globe and it doesn’t have the level of rule of law or due process that we might expect applied to it here. We can’t just replicate that hysteria or that unfairness here. We’re not necessarily, if we do that, even catching terrorists or stopping national security threats.

This bill tries to legislate for that process, and the Green Party didn’t vote for it at first, because we had some quite serious concerns, but we did agree to come back to it as a caucus after the select committee process, because we were hoping that once the Law Society and the Human Rights Commission—who I had engaged with on the bill initially, and I knew that they kind of did share some of those concerns—had been heard by the committee so that those concerns might be allayed and addressed. I do want to acknowledge the Justice Committee, because I know that they worked really, really hard on this. Some of those concerns were addressed, but, unfortunately, not all were.

I did note that Mr Goldsmith, in noting that there were only three oral submissions, then also noted that some of those submitters didn’t think that this bill struck the right balance in terms of upholding the rule of law or the kinds of human rights protections that it should, and that those—and I know, because I’ve seen those submissions—breaches were not justified or that they could be addressed in other procedural safeguards, but that wasn’t adopted. He said that some believed it’s the Law Society and the Human Rights Commission we’re talking about. But it’s the independent agencies that we entrust to tell us, as a House of Representatives, when we are breaching some of those processes—in particular, in the case of the Law Society, the people that have the practical application of this work in our justice system and can give us solutions. So it was disappointing to see the departmental report not really address those concerns and sort of brush them off.

Some of the concerns we still hold, and, importantly, to start with, the definition of “national security information” is so broad—and others have made this point—that it actually has the potential to catch a lot that doesn’t need to be caught. So the bill, in our view, falls short of the intention, which is to have a really well-defined standard for what does qualify as national security information that needs to be protected in a process like this.

In terms of the special advocate, there’s still an incredible imbalance there, where even though there’s a requirement that they be present—and I keep reading this again because I find it so bizarre that this breach would be provided for still. The Crown has a general exemption from providing access to national security information to the court or the special advocate, even though that person and the judge involved will have full security clearance if the court decides that’s OK. There’s just absolutely no reason for that to be provided for in this bill, and courts are most likely to rely in a situation like that, in a proceeding like that, on the word of who we call national security experts.

So this is a huge hole. If the national security agency says it doesn’t want to or doesn’t think it should have to provide the information, even to security-cleared counsel, then it just won’t. There’s just no justification for that provision being in a bill like this when all of the other processes have been put in place, including the security clearance.

The cost of the special advocate may be borne by the non-Crown party—with equality of arms being such an essential part of fair and due process, there’s no justification for this being there. We know that the special advocates will likely be QCs, so it’s quite high cost to even have access to a special advocate provided for in this bill.

The Crown must be notified every time the special advocate has a communication with the non-Crown party whom they represent. I quote this from a submitter: there’s a massive technical disadvantage that’s been created, where special advocates have to give the subject matter of their communication and the fact of their communication with their client—or the person they, in an arm’s length way, represent—to the Crown. There’s no real point or national security issue that would justify that.

So there are holes. There’s an attempt—and I hope that in future we come back again to this—but the bill in its current form still allows vast types and information of a certain nature that is not necessarily security-sensitive information to be included in classified, opaque processes. It still allows for no counsel that has the job of representing the accused person to have access to it, and it creates a cost that’s beyond justification on that person. So it is not a fair trial in the sense that we would expect in any other part of our jurisdiction.

The experts on human rights and rule of law agree that there is much work to be done that hasn’t been done in this bill, and even though I think the committee tried its best, it doesn’t meet the standard that we would expect in upholding our human rights - based system and guarding against the kind of slippery slope that we saw with the war on terror, where we gave up on our rights en masse with the hysteria of terrorism. So I don’t commend the bill to the House.

Thank you, Mr Speaker. I stand in support of the second reading of this, the Security Information in Proceedings Legislation Bill, on behalf of the ACT Party, noting that this bill has come about in response to the royal commission recommendation made back in 2015, where this bill is being made to support our national security interests while at the same time ensuring access to natural justice.

I’d like to begin by thanking the officials and colleagues across the Justice Committee for their work on this bill, especially as it comes back to the House still with, mostly, support across the House.

This bill will create a new stand-alone Act that will implement a policy on how we are to use security information through court proceedings and in decision-making situations. I note at this stage that security information relates to both national security and classified security information.

Finding the balance between protection of security information and a defendant’s right to access information being used against them absolutely needed a solid framework around it. ACT expects that this bill can provide that while still protecting our national security interests.

The effect of this bill means that where security information is devolved in civil proceedings, there will be frameworks around how that is done. This includes being able to use a ministerial certificate option which will guarantee the protection of that information where it is needed. Creating security-approved special advocates trusted to receive security information on behalf of the non-Crown entity has also been established.

It will allow the courts to close hearings and civil proceedings so that information can be securely addressed and will allow security-cleared special advocates access to that information when they represent the non-Crown party. To do this, we do need to replace some of the court proceeding stages within a civil hearing process throughout other pieces of legislation to ensure consistency in how that information is handled, especially in regard to administrative decision-making.

The bill will standardise pre-trial court hearings for disclosure of information in all criminal proceedings where national security information will be used, and it will allow pre-trial hearings that will determine how security information will be protected at trial within those criminal proceedings.

We worked through clause 12, as my colleagues across the House have mentioned, of this bill, with officials. Again, I acknowledge officials’ advice and the work that was done on this. Clause 12 is around the obligation to give the court and a special advocate and special advisers access to security information. There was concern that the Crown could make determinations on whether or not advocates or advisers should be given access to information. The concern being that those affected by court proceedings may still not be allowed access to information for which decisions about them are ultimately made.

Officials advised us that, in their opinion, it was unlikely that the clause could be used, but it was still there, and that meant it could exclude participants from access. Officials gave us an example of where a piece of security information could be irrelevant to the particular case being heard, and therefore there would be no need to share that information with a special advocate, and that this clause would allow a judge to look at that information first and then make the decision as to whether or not the special advocate should have access to it through discovery, based on relevance, of course, to the case.

As a committee, though, we still had concerns around whether this clause created a broader discretionary power that could limit essential information to non-Crown parties, even though it was not the intention of the bill for this to occur. We agreed that the clause should be amended to include a threshold for the use of discretion that could prevent access to security information to either the non-Crown Party or their special advocate or adviser, that the threshold would align with existing powers and limitations that are already in the Evidence Act 2006, and that the Evidence Act has a clause about general exclusion where it says that if a judge feels that the value of the evidence is outweighed by the risk, that the evidence will either unfairly prejudice a proceeding or needlessly prolong it, then they can exclude it, and that in determining this, they must take into account the right of the defendant to offer an effective defence.

There was some clarity needed around clause 29 of the bill as well. The new framework would apply to civil proceedings, including those that already have procedures in place for dealing with security information. This bill here is about dealing with court proceedings and some tribunal hearings where they act just like a court, where there are reviews held to deal with reviewing convictions and sentences and whether they are or should be referred to the appeal court. We determined that the body that hears those cases, the Criminal Cases Review Commission, carry out their business in an investigative manner rather than a judicial one. So we consider then that the Criminal Cases Review Commission process would not constitute a proceeding before a tribunal, as the bill was hoping. We agreed, therefore, to adding an extra paragraph to clause 4 to give a definition of a civil proceeding so that it would exclude an investigation under the Criminal Cases Review Commission Act 2019, unless they applied to the District Court for an order excluding them from the definition of civil proceeding in the bill.

Maintaining civil liberties so that access to information can be achieved for fair hearings while securing national security information is very important and we are in support of a law that extends those civil liberties to all. ACT supports this bill.

A very short call from me. One point that I would like to make is in response to the idea, from the Green member, that we haven’t struck the right balance here. I come back to the idea that she introduced around the importance of the rule of law when we consider the balancing act that Parliament has to make in these security decisions. I think the starting point for me, and one that I considered with my fellow members of the Justice Committee—who you’ve heard, today, did an excellent job in hearing those submissions and discussing these ideas—was that the first principle of the rule of law is that it is open and accountable, that the Government tells people what the rules are and then they are able to follow them. That wasn’t the case before this legislation was introduced.

The bill provides a framework for dealing with national security information in civil and criminal proceedings, which did not exist before, where Crown disclosure was up to the Crown. It’s important that we put rules around when the Crown must make disclosures, and the balance here is fair. Particularly, the committee honed in on clause 12 to make sure that principles within the Evidence Act in New Zealand might apply in some situations with disclosure to special advocates, whereby evidence that was obtained overseas about something would be introduced in a New Zealand court with the same sort of rigour about evidence gathered here.

I think this bill is a good one—and I thank my Justice Committee colleagues; the chair, Ginny Andersen; and also the Opposition members, particularly the ACT member for her vibrant contributions to these discussions—and I commend it to the House.

I would like to join in the congratulations of the select committee members of each other. I was not part of the Justice Committee, but I am very happy too to celebrate them working in a responsible, adult, and in the “best interests of New Zealand and New Zealanders” way—particularly the contributions I’ve heard this afternoon from the Labour, National, and ACT parties. I take on board some of the comments that the Green Party’s advocate, Golriz Ghahraman, has made today, but I would say that the world we live in is not a perfect world and not everybody cares about Aotearoa New Zealand or our rights or responsibilities, and that some of the information that our security agencies receive is information that doesn’t necessarily come from our security agencies or from New Zealand. And we need to have a level of, and degree of, trust between ourselves and—I would correct her—our friends with whom we share intelligence-gathering relationships. Those relationships should not be taken lightly, because for a small country like ours with a very tiny population and very little leverage in the world other than goodwill, it is really important that we understand that we benefit hugely by being part of such relationships. Otherwise we would have to try at immense cost and with very limited outcomes to try and replicate that to have anything like the degree of security that we can now.

I’m fortunate to have been in a position over the years in Government of having to deal with a few of the issues raised, and I do know that there will be information behind certain court proceedings that will possibly never come out because it’s just too sensitive. And why is it sensitive? Well, sometimes people’s lives are actually at risk; sometimes methods of people living in countries where they are not free, and I don’t like to criticise the member from the Green Party because I personally like her and she’s a fellow lawyer, but, really, to question freedom in New Zealand—New Zealand is a liberal democracy, and this is not something that we should take lightly. We should be celebrating that, and we should be happy to encourage other liberal democracies to feel like that too. Don’t take it lightly. People die in other countries because they don’t agree with the Government. People lose their lives because of that. We have to value it, and I think it’s precious. Remember too, we are working today in a war memorial. There’s a reason that people like my father went off to war. There’s a reason that they did that, and many of them lost their lives. Why is that? Because they valued freedom. Don’t take it for granted.

And I’m looking at the individual freedoms, and that’s what we’re also talking about here. Yes, the State has a duty to let someone know what it is that they are accused of. Yes, absolutely. This is not a Star Chamber type regime we’re talking about. It is really important people know who’s accusing them and what they’re accused of. But let’s not be naive. We do have a history of people who have meant very ill will to this country. It’s not only the appalling situation we saw of the massacres in Christchurch; it’s not only that one. And that was an appalling situation—the worst of all. But there are other situations—some of which have never been made public. There were some situations that myself and probably also the Minister Andrew Little will be aware of—certain situations where harm has quite definitely been stopped because of the information that never ends up in a court. But the action was stopped, the harm was stopped, people’s lives were saved, and we can’t talk about those instances publicly. But let’s not be naive. The world is not as we want it.

This legislation is good legislation. It is attempting to give some balance to the rights and responsibilities around that information in the court proceedings. But it’s also legislation that, I think, will help to give our friends, when it comes to security, some confidence that they can continue to share with us the information that we should receive. So we commend this bill to the House. The National Party is supporting it.

Thank you, Mr Speaker. I think this is the first time I have been able to take a call under your particular watch, so again I congratulate Mr Speaker on his promotion.

But the other reason why I bring you into this debate, Mr Speaker, is that today is Thursday, 29 September, and it’s Police Remembrance Day. A number of us in the House are wearing the blue huia pin in reflection of Police Remembrance Day. It’s also the feast day of archangel Michael who’s the patron saint of police. So I acknowledge all the police in New Zealand, Australia, and the Pacific who have been killed in criminal acts while performing their official duties and those members of the police who have passed in the last 12 months.

The reason why I bring you into this debate, Mr Speaker, is because you, yourself, having been a previous police officer—even the member who has just spoken, the Hon Judith Collins, who was a former Minister of Justice and Minister of Police, and myself having worked for a period in the police portfolio—we all probably have very personal accounts of classified information, very sensitive classified information depending on what our classification is. But our understanding of how important this information is needs to be balanced, again, against the fundamental rights for the public in relation to trials. I wasn’t a member of this select committee, but I’ve really enjoyed listening to the debates in the House today. So I want to be able to acknowledge not just the security services but also police who are subject to information of national security.

As the Minister said today, this bill touches on those important constitutional matters, and it’s about balancing that. It’s about balancing the protection of information for our national security, but also providing a fair trial, people’s ability to open justice, the respective roles of the judiciary and the executive, and to protect, again, our national security interests.

I agree with the words of the Minister in his speech on behalf of the Minister of Justice, I agree again with the words that were given by the chair of the Justice Committee, who led the analysis of the bill, and I would like to commend this bill to the House.

Thank you, Mr Speaker. It’s a pleasure to take a short call on this Security Information in Proceedings Legislation Bill. I join colleagues around the House in supporting this bill.

I was also not a member of the deliberations of the Justice Committee on this particular bill, but I do sometimes attend the Justice Committee when a permanent member is not available. I know from my experience the careful work that they usually put into their work when I am present, and it also appears from comments in the House that this is what has occurred in this case.

This bill comes against a background of a 2015 report of the Law Commission and also the royal commission of inquiry into the Christchurch terror attacks—so really important pieces of work that form the background of this work. It addresses a tension, which is the importance of an availability of information when you have civil and criminal trials but also the importance of national security information.

The aim of this bill, really, is to produce a clear regime to allow both of these important matters to be considered and to be treated as sensitively and fairly as possible. It does it in a few ways. I agree with the comments that other speakers have made in relation to the Law Commission recommendations. I just want to note a few aspects of it before I conclude.

The bill will address both civil and criminal matters, and they have slightly different ways that both of these are addressed through—civil matters having a ministerial certificate regime and also a standard closed court procedure, and in the criminal matter, pre-trial closed court procedure with special advocates and also pre-trial admissibility hearings. There is also provision within the bill for administrative decisions. So in short, I commend this bill to the House.

I’m delighted to inform the House that this speech, which I don’t even know what I’m going to say, is unclassified. I can also confirm—I can also confirm—that I was on the Justice Committee, but not for much of the time, but I’m happy to put that on public record. But, jokes aside, can I follow up with what Barbara Edmonds was acknowledging, just all those who’ve served in the police, on this Police Remembrance Day—I think it’s wonderful that St Michael the archangel was acknowledged, that is the patron day—so for all those who have served, including my father, but all those who’ve paid the ultimate price in service of this realm.

That actually does fit, somewhat, into this bill around security information proceedings. It’s an attempt by this Parliament—and, I think, a correct attempt—to balance competing rights. One is the transparency and accessibility to justice, but, on the other side, to ensure that the principles of justice are maintained against threat actors, be they State or non-State, across the world.

I think we’ve got the balance right. I want to stress, though, because, actually—and this is, by the way, not a reflection on the Government of the day—I think this is actually a really good bill. I think the select committee and, again, to acknowledge Ginny Andersen, as the chair of that committee, has done an excellent job. But I think this is one that we, as a Parliament, will want to keep an eye on because we are tinkering in two very delicate spaces: access, transparency, and justice; and national security on the other side.

I cannot claim to have sat officially on intelligence committees, but I will happily admit to the House that I’ve spent more time in sensitive compartmented information facilities (SCIFs) than I would care to have thought in this time—and not always in this country. But I have remained loyal to this country, I want to make that really clear, too—I’m just not jumping into SCIFs in, you know, random countries.

But why I say this is, actually, issues of intelligence are exceptionally important. I think, in the context—I know this is a justice bill, but I do see the Hon Andrew Little here, who looks after our intelligence committees—our intelligence officers, both domestic and international, do an exceptionally incredible job. Why I think that, and why I support this bill, is that information, in itself, needs to be protected or treated carefully. Really importantly, the people who collect it, who analyse it, need to be protected.

I apologise if it’s already been raised in the House today, but sometimes the information that is to be shared is not secret simply because of the nature of it, it’s how we got it, how we obtained it, that is so vitally important. I would encourage my Green Party colleagues to understand that—I think, thoughtful contributions, I don’t want to take away from that, but it’s really important, at times, that intelligence is not just simply the writing on the paper, the piece of knowledge; it’s how was this obtained. Good New Zealanders and good people around the globe, often in very difficult circumstances, put their lives on the line. Again, just to acknowledge the work that our New Zealand Security Intelligence Service, Government Security Communications Bureau, and signals intelligence and others undertake.

The other is, obviously, how we treat this information carefully, particularly with the respect of our allies—I know others have spoken about it. I think, again, the bill has this balanced correctly. I’m pleased to see there’s a provision to still allow some information not to be shared. It probably won’t surprise the House or those listening at home that New Zealand doesn’t gather all its own intelligence—we share intelligence, we talk to our friends and allies. We have to take a little bit of responsibility for how we use that information. Put really simply or crudely, if we just start—even in this new court process—sharing information that our allies would prefer we did not, that’s going to have consequences for us, and not just in the judicial process but for our national security. But I do actually have confidence—even on this side of the House—that those Government Ministers responsible in this space understand that and will have engaged deeply and rightly with our colleagues overseas so that they understand—they understand—what we are doing.

The bill, as it proceeds, particularly around the appointment of special advocates—again, it’s emphasising lawyers being the key role; they’ve already got to get their security clearances. I’ll be interested to see how this manifests practically. Again, this is not a challenge to the law. Obviously, we will need to have some lawyers. I think someone erroneously mentioned QCs—they’re now KCs; outrageous—are likely to be the ones called. But, long and short, what is going to be the designated agency, how will these people be identified and—I would suggest—be security cleared in advance? Again, I possibly have missed the section—I know this is third reading—but to make sure that those advocates, I would think, keep their identity and roles secret too.

So I’m just going to leave it there. I think that will indulge the House as a gift to finish up, if the Speaker gives me a nod, otherwise I’ll keep going. Excellent. We’d love to commend this bill to the House.

I commend this bill to the House.

The House stands adjourned until 2 p.m. on Tuesday, 18 October 2022. Thank you, all staff and members, for your efforts this sitting block.

The House adjourned at 4.57 p.m.