Thursday, April 13, 2017

Secret court hearings violate the right to justice

Over the past decade we've seen a push by governments around the world to allow them to present "classified information" (AKA the paranoid ravings of spies) to the courts in secret while denying the opposing parties the right to contest it, or even know what is being claimed. We saw this procedure used in the persecution of Ahmed Zaoui, and since then its been encoded in law in the Passports Act 1992, Immigration Act 2009 and even the Health and Safety at Work Act 2015. More generally, National wants to allow this procedure to be used in all civil and criminal trials, just in case the government wants to put its finger on the scales of justice.

Meanwhile, in a decision on judicial review of a passport cancellation, the High Court has just ruled that such provisions violate the Bill of Rights Act:

A statutory provision that material and potentially decisive evidence in a court proceeding is to be presented to the Court and considered in the absence of the party adversely affected is as flagrant a breach of the fundamental right recognised in s27 of NZBORA as could be contemplated...

The whole of our common law tradition, as bolstered by the rights and protections recognised by NZBORA, render the procedure under s29AB an anathema to the fundamental concepts of fairness. However, the reality is that Parliament has recognised the justification for the use of that procedure in defined circumstances.

And because Parliament is supreme, rather than the Bill of Rights Act, they get to get away with this violation.

In passing, the court also criticises the Attorney-General's apparent failure to warn Parliament of what it was doing, citing the lack of a s7 report on the provisions when they were passed. Which doesn't build confidence in Parliament as the guardian of our human rights. As with National's Anadarko Amendment and prisoner voting restrictions, it instead suggests that its time we took the job off them, and gave it to a body which can be trusted to do the job properly: the courts.