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 wrote to the Minister of Workplace Relations and Safety Michael Woodhouse on 21 August saying the provisions should not have been inserted at such a late stage of the legislative process.
Among the amendments recommended by the Transport and Industrial Relations select committee was a new clause 180A and Schedule 2A “to provide for the secure handling of classified information in legal proceedings”.
The letter noted that Schedule 2A contained provisions relating to classified security information in “any civil or criminal proceedings in a court (including public law and judicial review proceedings) that relate to the administration or enforcement” of the Health and Safety Reform Bill. The provisions allow for a “closed material procedure” involving special advocates.
The provisions, as reviewed by the Law Society at the time it sent the letter to Mr Woodhouse, allowed 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.
That was inconsistent with the fundamental right to a fair trial, the Law Society said.
The letter outlined the Law Society’s concerns about the insertion of Schedule 2A. It pointed to several issues around the Schedule and its approach to the handling of national security information in legal proceedings.
It also said that the absence of public consultation on the insertion of Schedule 2A was “undesirable, particularly where the provisions inserted – as here – directly affect very significant constitutional matters such as the fundamental right to a fair trial and open justice”.
It also said that the insertion of the provisions was “untimely”, given that the Law Commission was currently reviewing the use of classified security information in proceedings and would shortly be reporting on that to the government.
“The Law Society was unaware of a Supplementary Order Paper released by Mr Woodhouse on 19 August which proposed some changes to Schedule 2A. As a result our letter was written without reference to the changes,” New Zealand Law Society President Chris Moore said on 27 August.
“However, we have now reviewed the changes made to Schedule 2A. The impact of these is unclear in relation to the right to a fair trial, and the other concerns we raised in our letter remain.”
The Law Society considered it was important to release the letter “in the public interest,” Mr Moore said.
The letter is available on the Law Society website.