Security Information in Proceedings Legislation Bill

Members, we come now to the Security Information in Proceedings Legislation Bill. We start with Part 1, which is the debate on clauses 3 to 7 and Schedule 1, the preliminary provisions. The question is that Part 1 stand part.

Thank you very much, Madam Chair. There’s a certain familiarity to how proceedings are taking place, and I appeal across the Chamber to anyone who feels like helping me out. No doubt the Minister herself, the Hon Kiritapu Allan, will give good contributions as well, so I don’t want it to be too one-sided an affair, that’s all. I know that there are valiant members of the Justice Committee, and another one is about to take her seat, Dr Emily Henderson, who will be very interested in having a discussion and debate about this bill.

We made it clear at the time of the first reading that we agreed with its intent. We did, of course, want to know that the detail was going to work. We had the opportunity in the select committee process to interrogate the detail and to work through that. At the second reading, we made it clear that we supported the changes that were made. We had some good discussions with Labour colleagues who I’m trying to bait into taking calls to join in. There’s nothing wrong with others doing that as well, so I’d look in the direction of my friends from other parties who are also on the Justice Committee; I’m not regularly a member of that, but I was able to join that committee for the purpose of looking at this bill. So I’ve been made aware of a certain amount in that process, and I’d be quite curious to know the Minister’s thinking, just to get it on the record as much as anything in the committee of the whole House kind of a way.

So National security interests—the idea that the security interests of New Zealand and, actually, further afield, which we’ll get into, are important. This is a concept that’s central to the idea that we need security information and proceedings legislation in the first place. We’re acknowledging a situation where the usual rules don’t quite apply. Which is to say that whereas justice should always be as open as possible and the flow of information should be as free as possible, nevertheless, there are situations in which it’s necessary for purposes of national security interests—to use that phrase as defined in Part 1—to consider how the information flow needs to be managed, and the openness of the justice has to be, you know, constrained to some extent. That’s a challenging thing to say aloud, but, nevertheless, the intent, I think, is an entirely reasonable one.

We think the detail’s about right. But, having said that, these are very serious human rights that are involved when we talk about the right to a fair trial and related matters as set out in the New Zealand Bill of Rights Act, for example. So we don’t take lightly the fact that we are limiting people’s rights; we try to do that in a reasonable way, indeed, a “justifiable limitation” if we want to use rights-balancing kind of language.

Anyway, that all brings me to national security interests, which are at the heart of the need to do something at all in this space, and so I see the “security or defence of New Zealand;” is listed as one of the meanings or sub-meanings of national security interests. We’ve got “international relations of the Government of New Zealand;”, we’ve got “security or defence” of “the self-governing State of the Cook Islands;”, “the self-governing State of Niue;”, or “Tokelau;”, or “the Ross Dependency;”, and so on. So, actually, it’s pretty broad. But the one that intrigued me a little bit was “the entrusting of information to the Government of New Zealand on a basis of confidence” by the Government of any country, an agency of a Government of any country, or any international organisation. And that’s defined within the Official Information Act, fondly referred to, of course, as the OIA.

So I’m wondering if there’s any situation that the Minister can think about where perhaps there might be security issues involved but that she would envisage would be outside the ambit of the legislation. It seems pretty broad, this kind of definition, and probably rightly so, but if there’s any scenario that she would say, “Well, actually this kind of thing isn’t included”, that would be helpful. And, particularly, I suppose, it’s worth referring to clause 7 within the bill, which says the “Act does not apply to proceedings under [the] Immigration Act 2009”. I’ve just read the heading, but the clause is basically the same. What’s the rationale for having proceedings under the Immigration Act set aside from the ambit of this legislation?

Thank you, Madam Chair. I appreciate the member Chris Penk’s contribution and thoughtfulness as we go through this bill.

So with respect to the wide definition of “national security information”, clause 4 adopts the definition of “national security information” that was recommended by the Law Commission. So that definition there, it identifies a specific interest that may be prejudiced by the disclosure of national security information, and these interests are: New Zealand security; defence operations; international relationships, including information-sharing relationships; and economic interests, including interests related to international trade.

With respect to the breadth of the interest protected by the definition, I think it just illustrates the difficulties of defining the scope of “national security interests” with any specific and particular precision. So the disclosure of national security information in the proceedings could have implications for New Zealand’s obligations to its intelligence-sharing partners. A disclosure of substantive information may not in and of itself pose a security risk, but it could inadvertently lead to the uncovering of intelligence-gathering tools and techniques—for example, the identification of an undercover intelligence officer or agent or informer whose safety would then be put at risk. So part of the difficulty is that there may be degrees of threat to national security, and degrees of importance of national security interests.

With respect to immigration and the queries raised about why this bill doesn’t expressly apply to the Immigration Act, the reason is that—well, there is a sound rationale to treat immigration decisions differently from other decisions involving national security interests. Each of our Five Eyes partners has a specific scheme for dealing with national security interests and immigration cases. So this is despite Australia, Canada, and the United Kingdom having a central national security information statute.

Immigration decisions are high-volume areas where decisions are made necessarily rather swiftly and in very close collaboration with foreign partners. So controlling our inward flows across our borders represents quite a unique challenge, particularly the need to rely on sensitive information sourced from overseas partners.

Immigration, as well, is an area where the executive has the prerogative to exercise significant discretion about who can and who cannot enter into, or stay in, New Zealand. So our international partners require assurances that information that they share with us would not be disclosed. The current immigration scheme explicitly prevents the court from disclosing national security information, which is an appropriate setting in the immigration context. In the immigration sphere, protecting our borders from people who present a high risk, and quickly providing certainty and finality have been the critical determiners there.

Just finally, I’ll note that it was observed by the Law Commission that the current immigration scheme contains sufficient protections for non-Crown parties, including the provision of special advocates.

So, overall, I think I’m satisfied that the right balance has been struck with respect to a separate national security interest scheme for immigration at this time.