Schedule 4 Provisions relating to classified security information

s 162

1 Application of this schedule

(1)

This schedule applies to any criminal or civil proceedings (including public law and judicial review proceedings) that relate to the administration or enforcement of this Act, if—

(a)

all parties to the proceedings have access to classified security information that is to be produced or referred to in the proceedings; or

(b)

the defendant in proceedings intends to produce or refer to classified security information.

(2)

Nothing in this schedule limits the duties of a prosecutor to disclose information under the Criminal Disclosure Act 2008.

2 Interpretation

In this schedule,—

classified security information has the meaning given in clause 3

non-Crown defendant means a person, other than the Crown or a Crown organisation, who is a defendant in any proceedings that relate to the administration or enforcement of this Act

security, intelligence, or law enforcement agency means—

(a)

the New Zealand Defence Force:

(b)

the Government Communications Security Bureau:

(c)

the New Zealand Police:

(d)

the New Zealand Security Intelligence Service

(e)
[Repealed]

special advocate means a person appointed under clause 6

specified agency means—

(a)

the New Zealand Defence Force:

(b)

the New Zealand Police:

(c)
[Repealed]

(d)

a public service agency as defined in section 5 of the Public Service Act 2020.

Schedule 4 clause 2 security, intelligence, or law enforcement agency paragraph (d): amended, on 28 September 2017, by section 335 of the Intelligence and Security Act 2017 (2017 No 10).

Schedule 4 clause 2 security, intelligence, or law enforcement agency paragraph (e): repealed, on 28 September 2017, by section 335 of the Intelligence and Security Act 2017 (2017 No 10).

Schedule 4 clause 2 specified agency paragraph (c): repealed, on 28 September 2017, by section 335 of the Intelligence and Security Act 2017 (2017 No 10).

Schedule 4 clause 2 specified agency paragraph (d): replaced, on 7 August 2020, by section 135 of the Public Service Act 2020 (2020 No 40).

3 Meaning of classified security information

(1)

In this schedule, classified security information means information—

(a)

that is relevant to proceedings that relate to the administration or enforcement of this Act; and

(b)

that is held by a specified agency; and

(c)

that the head of the specified agency certifies in writing cannot be disclosed except to the extent provided in clause 4 because, in the opinion of the head of the specified agency,—

(i)

the information is information of a kind specified in subclause (2); and

(ii)

disclosure of the information would be disclosure of a kind specified in subclause (3).

(2)

Information falls within subclause (1)(c)(i) if it—

(a)

might lead to the identification of, or provide details of, the source of the information, the nature, content, or scope of the information, or the nature or type of the assistance or operational methods available to a security, intelligence, or law enforcement agency; or

(b)

is about particular operations that have been undertaken, or are being or are proposed to be undertaken, in pursuance of any of the functions of a security, intelligence, or law enforcement agency; or

(c)

has been provided to the specified agency by the Government of another country or by an agency of a Government of another country or by an international organisation, and is information that cannot be disclosed by the agency because the Government or agency or organisation by which the information has been provided will not consent to the disclosure.

(3)

Disclosure of information falls within subclause (1)(c)(ii) if the disclosure would be likely—

(a)

to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or

(b)

to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the Government of another country or any agency of such a Government, or by any international organisation; or

(c)

to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial; or

(d)

to endanger the safety of any person.

Compare: 2013 No 91 s 102(1)–(3)

4 Obligation to provide court with access to classified security information

(1)

A specified agency must, after proceedings are commenced, provide the court with access to the classified security information that is relevant to those proceedings.

(2)

The court must keep confidential and must not disclose any information provided as classified security information, even if it considers that the information does not meet the criteria set out in clause 3(2) and (3), unless the head of the specified agency that holds the information consents to its release.

(3)

Subclause (2) applies both during and after completion of the proceedings.

Compare: 2013 No 91 s 103

5 Court orders

(1)

The court may, in order to comply with clause 4(2), make 1 or more of the following orders:

(a)

an order forbidding publication of any report or account of the whole or any part of the evidence adduced or the submissions made in the proceedings:

(b)

an order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of any witness or witnesses:

(c)

an order forbidding the publication of classified security information or information about classified security information:

(d)

an order excluding any person from the whole or any part of the court’s proceedings, including—

(i)

any party or any party’s representative; or

(ii)

staff of the court.

(2)

An order made under subclause (1)—

(a)

may be made for a limited period or permanently; and

(b)

if it is made for a limited period, may be renewed for a further period or periods by the court; and

(c)

if it is made permanently, may be reviewed by the court at any time.

Compare: 2013 No 91 s 104

6 Appointment of special advocate

(1)

This clause applies if a non-Crown defendant cannot properly defend proceedings without being able to consider classified security information and the non-Crown defendant does not hold an appropriate security clearance to see that information.

(2)

The court may, on the application of the non-Crown defendant, appoint a barrister or solicitor as a special advocate to represent the non-Crown defendant’s interests on the terms that the court may direct if the court is satisfied that it is necessary to do so in order to facilitate either or both of the following:

(a)

the non-Crown defendant’s proper defence of the proceedings:

(b)

a fair hearing.

(3)

The court must, before appointing a person as a special advocate, be satisfied that the person—

(a)

holds an appropriate security clearance that allows the person to see information that is or may be classified security information; and

(b)

is suitably qualified and experienced to fulfil the role of a special advocate.

(4)

The court may make directions as to the terms of the appointment, and on the matters referred to in clauses 9 and 10(3).

(5)

The specified agency that holds the classified security information must meet the actual and reasonable costs of a special advocate on a basis—

(a)

agreed between the special advocate and the head of the specified agency; or

(b)

determined by the court (in default of agreement).

Compare: 2013 No 91 s 105

7 Nomination of person for appointment

(1)

Each of the following may nominate a barrister or solicitor to be appointed as the special advocate:

(a)

the specified agency:

(b)

the non-Crown defendant.

(2)

The court may appoint a person nominated under subclause (1) or another person.

Compare: 2013 No 91 s 106

8 Role of special advocates

(1)

The role of a special advocate is to represent a non-Crown defendant.

(2)

In particular, a special advocate may—

(a)

prepare the non-Crown defendant’s defence:

(b)

examine and cross-examine witnesses:

(c)

make oral and written submissions to the court:

(d)

assist in the settlement of the proceedings.

(3)

At all times, a special advocate must act in accordance with his or her duties as an officer of the High Court.

(4)

A special advocate must keep confidential and must not disclose classified security information, except as expressly provided or authorised under this Act.

Compare: 2013 No 91 s 107

9 Court may provide access to classified security information to special advocate

(1)

A special advocate may apply to the court for access to the classified security information.

(2)

The court may provide access to the classified security information to the special advocate on the terms that the court may direct.

Compare: 2013 No 91 s 108

10 Communication between special advocate and other persons

(1)

A special advocate may communicate with a non-Crown defendant or the non-Crown defendant’s representative on an unlimited basis until the special advocate has been provided with access to the classified security information.

(2)

After a special advocate has been given access to the classified security information, he or she must not communicate with any person about any matter connected with the classified security information except in accordance with this clause.

(3)

A special advocate who, after having been given access to the classified security information, wishes to communicate with the non-Crown defendant or the non-Crown defendant’s representative, or any other person not referred to in subclause (4), may do so on the terms that the court may direct.

(4)

A special advocate may, without the approval of the court, communicate about any matter connected with the classified security information with—

(a)

the court:

(b)

the head of the specified agency that holds the classified security information, or the specified agency’s security-cleared representative.

Compare: 2013 No 91 s 109

11 Protection of special advocates from liability

(1)

To the extent that a special advocate is acting in accordance with the requirements of this Act, he or she is not guilty of—

(a)

misconduct within the meaning of section 7 or 9 of the Lawyers and Conveyancers Act 2006; or

(b)

unsatisfactory conduct within the meaning of section 12 of that Act.

(2)

This schedule applies despite the requirements of any practice rules made and approved under the Lawyers and Conveyancers Act 2006.

(3)

No person is personally liable for any act done or omitted to be done in good faith, in his or her capacity as a special advocate, in accordance with the requirements or provisions of this Act.

Compare: 2013 No 91 s 110

12 Other matters relating to procedure in proceedings involving classified security information

(1)

The court must determine the proceedings on the basis of information available to it (whether or not that information has been disclosed to or responded to by all parties to the proceedings).

(2)

If information presented, or proposed to be presented, in the proceedings includes classified security information,—

(a)

except where proceedings are before the Court of Appeal or the Supreme Court, the proceedings must be heard and determined by the Chief High Court Judge, or by 1 or more Judges nominated by the Chief High Court Judge, or both; and

(b)

the court must, on a request by the Attorney-General and if satisfied that it is necessary to do so for the protection of all or part of the classified security information, receive or hear the relevant part or all of the classified security information in the absence of all or any of—

(i)

a party other than the specified agency; and

(ii)

the barristers or solicitors (if any) representing that party; and

(iii)

journalists; and

(iv)

members of the public.

(3)

Without limiting subclause (2),—

(a)

the court may approve a summary of the classified security information that is presented by the Attorney-General except to the extent that a summary of any particular part of the information would itself involve disclosure that would be likely to prejudice the interests referred to in clause 3(3); and

(b)

on being approved by the court, a copy of the summary must be given to every party referred to in subclause (2)(b)(i).

(4)

Subclauses (1) to (3) apply despite any enactment or rule of law to the contrary.

Compare: 2013 No 91 s 111

13 Nothing in this schedule limits other rules of law that authorise or require withholding of document, etc

Nothing in this schedule limits section 27 of the Crown Proceedings Act 1950 or any rule of law that authorises or requires the withholding of a document or the refusal to answer a question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.

Compare: 2013 No 91 s 112

14 Ancillary general practices and procedures to protect classified security information

(1)

Any general practices and procedures that may be necessary to implement the procedures specified in this schedule and to ensure that classified security information is protected in all proceedings to which this schedule applies must be agreed between the Chief Justice and the Attorney-General as soon as practicable after the commencement of this clause, and revised from time to time.

(2)

General practices and procedures may be agreed under subclause (1) on the following matters:

(a)

measures relating to the physical protection of the information during all proceedings to which this schedule relates:

(b)

the manner in which the information may be provided to the court:

(c)

measures to preserve the integrity of the information until any appeals are withdrawn or finally determined.

(3)

Subclause (2) does not limit subclause (1).

Compare: 2013 No 91 s 113