Thursday, April 17, 2014

Against secret "justice" in NZ

Last year, in response to a series of court cases challenging its control orders or claiming compensation for human rights abuses by its intelligence services, the UK passed the Justice and Security Act 2013. The Act introduces a "Closed Material Procedure" into civil cases in the UK government, allowing the government to shield "sensitive" information from disclosure. Effectively, it means that if you sue the government for torturing you, it gets to hide all the evidence from you. Instead of your day in court, you get one-sided, secret "justice".

Now the Law Commission is considering introducing such a system in New Zealand:

The Law Commission has released A New Crown Civil Proceedings Act for New Zealand, its Issues Paper on reforming the Crown Proceedings Act 1950. The Issues Paper proposes a new statute to replace the Crown Proceedings Act 1950.


An important topic covered in the Issues Paper is the Crown’s ability to refuse to disclose certain information during litigation because of reasons of national security. The Commission is raising a number of options, including the possibility of court hearings in which material might be relied on by the Crown but not fully disclosed to the other side.

Sir Grant says “The Commission seeks views as to the appropriate way to balance the needs of justice that require all relevant material be revealed on the one hand, and on the other the legitimate national security concern that some things simply cannot be revealed.”

The issues paper is here; chapter 7 is the relevant section. While they present five options, ranging from repeal of s27 Crown Proceedings Act (which would give a consistent, though imperfect, regime under the Evidence Act), to full-on UK-style secret "justice", its clear that they're pushing for a solution more towards the latter end. At minimum they seem to favour an absolute, unreviewable ability for the crown to withhold documents on national security, defence, and international relations grounds - a privilege which overseas has been used to cover up government wrongdoing and deny justice to victims of torture.

We need to protect our courts from this toxic foreign invasion of secrecy, and prevent America's "war on terror" from fundamentally corrupting our justice system. Submissions on the issues paper are due by 1 August 2014; you can submit by email here.