Wood Michael; Dean JacquiSECURITY INFORMATION IN PROCEEDINGS LEGISLATION BILLFirst ReadingHon MICHAEL WOOD (Deputy Leader of the House) 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 MICHAEL WOOD: I move That the Security Information in Proceedings Legislation Bill be now read a first time. I nominate the Justice Committee to consider the bill.This is an important piece of legislation that covers a number of quite challenging areas. The bill as is put to the House will create a more workable and coherent approach to the use of national security information in both court and administrative proceedings. The bill stems from a Law Commission set of recommendations from its 2015 review and implements the majority of those recommendations which relate to how national security information is treated by the courts and also in administrative decision-making.The question that lay at the heart of the Law Commission's review at that time was this one: what should happen when information is relevant to legal proceedings but in disclosing it we might have a deleterious effect on national security interests. This is a very challenging issue and it has arisen from time to time in our legal history and there needs to be a way of addressing that. What the Law Commission found is that we have a number of gaps and inconsistencies in our current framework in how we deal with these issues.The current law doesn't provide enough assurance that national security information can be adequately protected if it does transpire that it needs to be used in court proceedings. That potentially creates security risks for New Zealand. On the other hand the current law can also disadvantage affected people who might not know the reason for the decision that has been made against them. This is something of a quandary. The Law Commission recommended legislation to clear up inconsistency in the law and to give all of the parties involved a clear process that protects national security information while at the same time maintaining fairness and natural justice. The bill that's before the House aims to achieve both of those objectives.The bill covers civil proceedings including judicial review of administrative decisions and also criminal proceedings. A key feature of the bill is that the court should be able to order a closed procedure when dealing with national security information in civil cases. It will—and I think this is important—be up to the court to decide how to manage national security information and whether the risks of disclosing that information are sufficiently serious to justify withholding it so there is a serious attempt to achieve comity here and to allow the courts to have appropriate jurisdiction over managing these tensions. In cases where it's in the interests of justice to exclude that information from proceedings it will then be held completely but in cases where the information should still be taken into account the court would then have the ability to be able to use closed procedure. The 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 to the media and to other non-Crown parties.Another key feature of the bill is the use of special advocates in closed procedures. Now special advocates are security-cleared lawyers who act for people who are not allowed to see the national security information in question in their case because the court has determined that disclosure of that information would have a security risk.Safeguards in the bill will mitigate the absence of this for the affected person. The special advocate and the judge would have fuller access to the information and the judge would be able to direct that a summary of the information is prepared for the affected person and their lawyer so that they're able to understand the key issues and to provide meaningful responses. The special advocate would have input into the summary and the judge would have the final say on the summary contents. So again we see a reference to the important role of the court and the judge in managing these proceedings. Closed hearings and special advocates are already used by the courts. The bill will create clearer rules to be followed in all cases where closed court procedures and special advocates are used.The bill does not provide for the use of closed procedures in substantive criminal trials. The bill retains a fundamental position that a defendant would always be present during a criminal trial. However the bill does provide a new pre-trial process to enable national security information to be used but protected at a criminal trial. The court would decide in that closed court pre-trial hearing whether admitting national security information in a protected form—for example in a summary document as previously discussed—is consistent with the defendant's right to a fair trial. So again there's a clear process here to try and balance up the complex rights and responsibilities that are at play.This process would be limited to serious offences where there is a high public interest in a conviction. The bill does depart from the Law Commission's recommendations in one important respect. There are specific issues around disclosing particularly sensitive security information that the bill must address. In rare cases extra certainty is needed to protect our security and that's both international and domestic security and foreign partner relationships. The bill provides for a ministerial certification option to protect particularly sensitive national security information. This process will require a certificate to be presented by the court signed by both the Attorney-General and the Minister of Foreign Affairs. Once a court receives such a certificate it can either exclude the information or conduct a closed court procedure. No other options are available—that is the case can't be heard in an open court.To ensure that these cases only transpire in very rare cases the Crown would be required to consider the non-certificate track first. So it's a fall-back only if the non-certificate track is deemed not to be appropriate given the nature of the information.The bill replaces existing tailored schemes where national security information is used in decision making like the Passports Act the Terrorism Suppression Act and the Telecommunications (Interception Capability and Security) Act among others. This means that there will now be a consistent set of protections and procedures so that affected individuals have fundamental rights—for example to a special advocate a summary of the information and to remove requirements for a court to make a decision on information that the affected person doesn't have access to.Immigration decisions sit within a unique context involving a high number of decisions regarding non - New Zealanders that often have to be made relatively quickly in collaboration sometimes with foreign partners. Other jurisdictions also have separate arrangements for dealing with immigration issues of this kind—for example Australia Canada and the United Kingdom. I'm satisfied that the current immigration scheme contains sufficient protections for affected individuals. The Law Commission did consider the Immigration Act regime to be the most robust and protective of the affected person's rights out of the existing schemes.In conclusion the issues covered by this bill touch on some very important constitutional and rights 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. I'm confident that the Government in putting together this bill has struck the right balance between those considerations acknowledging considerable complexities. I look forward to the Justice Committee's consideration of the bill. I commend this bill to the House.ASSISTANT SPEAKER (Hon Jacqui Dean): The question is that the motion be agreed to.