Balancing National Security and Human Rights in New Zealand: Confidential Information, Terrorist Designations and the Right to Natural Justice

Abstract

The real threat to the life of the nation… comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve”. In the aftermath of September 11, courts have grappled with applying legislation that permits serious intrusions on individual liberties on grounds of reasonable suspicion in terrorist-related activity. In 2009 in Secretary of State for the Home Department v AF (AF) the House of Lords was confronted with the issue of whether to accede to a request by suspected terrorists for the disclosure to them of information that would allegedly place the United Kingdom’s security at risk. The House found that notwithstanding the risk that this would allegedly cause the innocent public, a person must be provided with sufficient information to enable him or her to effectively challenge the allegations against him or her in all cases. This article will consider the implications of the result in AF for the use of classified information in the designation of terrorist entities in New Zealand. The Terrorism Suppression Act 2002 (the TSA) will be interpreted against the New Zealand Bill of Rights Act 1990 (the BORA) and in particular the right to natural justice fortified in s 27. It will be argued that a lacuna in the New Zealand legislation leaves room for the reading down of relevant provisions of the TSA to include the requirement for a core, irreducible minimum of disclosure that is sufficient to enable an affected person effectively to challenge the allegations against him or her. In the course of this, latent difficulties in the application of human rights law to anti-terrorism laws will arise. This article will seek to strike a balance between an appropriate level of judicial deference to executive policy and the over-claiming of national security. It will be demonstrated that it is better to err on the side of justice for the accused.