The New Zealand Law Society has expressed its significant concerns at the last-minute addition to the Health and Safety Reform Bill of provisions for a closed material procedure for court proceedings where national security is involved.
The Law Society has written to the Minister of Workplace Relations and Safety, saying the provisions should not have been inserted at this late stage of the legislative process.
The provisions will allow a person to be tried and convicted of a criminal offence without seeing all the information relied on by the Crown and without the right to be present (or to have their representative present) during all the proceedings. This is inconsistent with the fundamental right to a fair trial, the Law Society says.
"We recommend removal of the provisions from the Bill, to await the outcome of an inquiry the Law Commission is carrying out on National Security Information in Proceedings," Law Society President Chris Moore says.
"The Law Commission has already identified significant issues about the matters covered by the provisions which have been inserted in the Bill, and it does not appear that these have been taken into account.
"The processes inserted by Schedule 2A directly impact on very significant constitutional rights. Because Schedule 2A was not in the Bill when introduced, it has not been subject to the Bill of Rights vetting process and will miss public consultation and input."
Mr Moore says it appears that the Government's advisers believed there would be relatively few circumstances where secure handling of classified information would be needed as part of any health and safety investigation or legal proceedings where national security is involved.
"However, Schedule 2A has a very wide definition of 'classified security information'. The Law Commission – which, it is important to stress, has been actively researching this very matter – has identified some major human rights issues in this matter.
"The Law Society has also advised the Minister that Schedule 2A attempts to remove the power of the courts to review a determination that certain information is 'classified security information'. All New Zealanders should be very worried when the powers of our courts to review any decision made by civil servants are curtailed, as could happen here."
The Law Society says that if the provisions are to be retained in the legislation, they should be more narrowly cast "at a minimum" and it strongly urges that the outcome of the Law Commission review be awaited.