Using classified information generally

Classified information in a general sense refers to official information that has a New Zealand government classification. Official information is classified according to the degree of harm that could result from its unauthorised disclosure. When official information has a classification, specified standards for its handling and protection must be followed. Classified information may include information which has been classified by a government other than New Zealand's. In this chapter, "classified information" is given a more specialised and restricted meaning (see paragraphs 695 and 696).

Classified information is subject to the same rules of disclosure as any other official information. Provisions under the Privacy Act 1993 and the Official Information Act 1982 (the OIA) allow information, including classified information, to be withheld from a person in some cases. These Acts do not govern whether classified information may be used in decision-making. On the basis of fairness and transparency, the Department does not use non-disclosed classified information in standard immigration decision-making.

Using classified security information

Part 4A of the Immigration Act 1987 (the 1987 Act) has its own natural justice arrangements that allow for non-disclosed classified security information to be used in cases where an individual is a threat to security, public order or public interest, and where the appropriate response is to detain and deport. Part 4A is outside the scope of this review and will be addressed at a later date. This chapter focuses on the question of whether classified information, including classified security information, should be able to be used in cases where Part 4A does not apply.

Proposals

It is proposed that:

EITHER, OPTION A:

1. classified information may be used in immigration and protection decision-making with safeguards including non-classified summaries of information, special advocates, and appeals determined by a panel of up to three Judges on the Immigration and Protection Tribunal (the tribunal), as set out in detail below

OR, OPTION B:

1. the status quo be retained, that is, the Department does not use non-disclosed classified information in standard immigration decision-making

OR, OPTION C:

1. decisions on the use of classified information in decision-making be deferred to the review of Part 4A of the 1987 Act.

In addition to Option A, B or C, I propose that:

EITHER

1. officials report back on the review of Part 4A following the conclusion of Mr Zaoui's case,

OR

1. officials report back on Part 4A prior to finalising the draft Bill for introduction to Parliament in April 2007.

Status quo

As noted above, the 1987 Act has no provisions for the use of classified information in decision-making other than Part 4A. This means that the Department does not use non-disclosed classified information in standard immigration decision-making.

Discussion paper and submissions

The discussion paper proposed options that would allow for classified information to be used in immigration and protection decision-making without disclosure to the person concerned. The discussion paper proposed that immigration decisions using classified security information be reviewable by the Inspector-General of Intelligence and Security, and that immigration decisions using other classified information, and protection decisions, be reviewable by a Judge on the proposed new independent tribunal.

Organisations that made submissions included immigration consultants, refugee and migrant groups, ethnic councils, law societies, community law centres, human rights groups, other community groups, and businesses.

Many submitters indicated their support for the proposals to use classified information, with the strongest level of support for the use of classified security information in immigration decision-making (approximately 55 percent of 112 submitters). There was slightly less support for the use of other classified information in immigration decision-making (approximately half of all 112 submitters).

There were clear differences between individual responses and responses from organisations. Individuals were much more likely to support the proposals than oppose them. More organisations opposed the use of classified information than supported it.

Many submitters (both those who supported and opposed the proposals) considered that:

• decision-making and review processes need to be transparent
• applicants should have access to special advocates
• applicants should be provided with at least a summary of the information to enable them to challenge that information, and
• reviews should be undertaken by an independent body other than by the Inspector-General of Intelligence and Security or a member of the proposed tribunal acting alone.

Of those who opposed the proposals, many indicated strong opposition on the grounds that they contravene a person's right to a fair hearing and the principles of administrative and natural justice. These submitters were of the view that all prejudicial information should be fully disclosed to applicants if it is to be used in decision-making. For example, the New Zealand Law Society noted that there is no reason to distinguish between potentially prejudicial information, whether classified or unclassified and that classified information should remain as a "trigger" for the location of open source information only.

Comment

The proposals for the use of classified information have carefully considered the concerns raised in public submissions in light of the small number of cases likely to be affected. Under Option A, a range of safeguards are proposed including requiring summaries of information, special advocates, and all appeals to be heard by a panel of up to three Judges on the independent tribunal.

Option A would enable New Zealand to make immigration decisions using classified information in a way that reinforces our reputation as fair and principled. Providing robust safeguards is generally consistent with the development of New Zealand's jurisprudence both in terms of natural justice and the New Zealand Bill of Rights Act 1990.

Option A is supported by the Department of Labour, the New Zealand Security Intelligence Service, the New Zealand Police, the Government Communications Security Bureau, and the Ministry of Foreign Affairs and Trade. The Ministry of Justice is comfortable with either Option A or Option B.

Option B (the status quo) does not allow for the use of classified information generally and may prevent New Zealand from making appropriate immigration decisions. Option B is not recommended.

Under Option C, proposals on the use of classified information could be deferred until the review of Part 4A. This review is currently deferred until Mr Zaoui's case is completed. Deferring all decisions on classified information until Mr Zaoui’s case is completed is not recommended on the basis that this case could be delayed for some time.

If Option A is agreed, officials could report-back on proposals for Part 4A in light of these decisions, for inclusion in the Bill prior to introduction to Parliament in April 2007.

The remainder of this paper discusses the proposals should Option A be agreed.

Proposals

It is proposed that classified information should only be used where national or international security issues, criminal conduct or significant international reputation issues for New Zealand may be an issue.

Drawing on key common elements of existing legislative definitions, it is proposed that "classified information" is classified security information and other classified information that:

1. may lead to the identification of the source of the information where the source will not consent to disclosure, or the methods of particular agencies (defined below), or a particular operation of a particular agency, and
2. if disclosed would be likely to prejudice the security or defence of New Zealand or New Zealand's international relations, or prejudice the entrusting of information to New Zealand on a basis of confidence, or prejudice the maintenance of the law, or endanger the safety of the applicant or another person (these mirror the conclusive reasons for withholding information under the OIA and the Privacy Act).

It is further proposed that:

1. "classified security information" is classified information originated or held by (or provided to any other government department through) an intelligence and security agency (such as the New Zealand Security Intelligence Service (NZSIS) and the Government Communications Security Bureau), and
2. "other classified information" is classified information originated or held by a government department other than an intelligence and security agency, but does not include classified security information.

Any classified information that was to be used in an immigration or protection decision or appeal would need to have official certification in writing that it was classified information.

Status quo

There is no definition of classified information in the 1987 Act for the purpose of immigration decision-making, because it is generally not used, but there is in Part 4A and it is similar to that proposed above.

Discussion paper and submissions

Establishing a clear and limited definition of classified information in the legislation received a high level of support in public submissions.

Comment

It is important to be clear that the purpose for using classified information without disclosure would be limited to cases where its use was proportionate to the risk posed by the individual if they were allowed to enter or remain in New Zealand. For this reason it is proposed that classified information should only be used where national or international security issues, criminal conduct or significant international reputation issues for New Zealand may be an issue.

It is also important to have a clear definition of what classified information is. The Passports Act 1992, the Terrorism Suppression Act 2002 and Part 4A of the 1987 Act all have definitions of classified information that draw on the OIA. Other classified information refers to information classified by departments other than NZSIS and the Government Communications Security Bureau, such as the New Zealand Police.

Proposals

Bearing in mind the safeguards and special appeals mechanisms discussed later, it is proposed that classified security information and other classified information may be able to be used in any decision to refuse a visa without disclosing the information to the applicant concerned. As discussed above the classified information must relate to issues of national or international security, criminal conduct or significant international reputation issues for New Zealand.

Given the different legislative structures for classified security information and other classified information, two sets of processes are proposed.

Status quo

As noted, classified information may not be used in decision-making unless it has been put to the applicant for comment. It is currently only used to locate open-source information that can be put to the applicant for comment. In many cases, this approach is successful. In other cases, reliable open-source information cannot be found.

Discussion paper and submissions

As noted above, many submitters indicated their support for the proposals to use classified information, with the strongest level of support for the use of classified security information in immigration decision-making (approximately 55 percent of 112 submitters). There was slightly less support for the use of other classified information in immigration decision-making (approximately half of all 112 submitters).

Of those who opposed the proposals, many indicated strong opposition on the grounds that they contravene a person's right to a fair hearing and the principles of administrative and natural justice. These submitters were of the view that all prejudicial information should be fully disclosed to applicants if it is to be used in decision-making. These concerns have been carefully considered in light of the small number of cases likely to be affected, and the range of safeguards that would help deliver fairness in a different way.

Comment

Allowing decision-makers to withhold potentially prejudicial information that was classified would strengthen the ability of New Zealand to choose who may enter and stay. This approach would align with the provisions in the OIA that allow information to be withheld. It would allow New Zealand to make appropriate decisions based on all available information. There are likely to be a very small number of cases each year where classified information is relevant and reliable open-source information is not available.

It is important that agencies that collect intelligence information that may be relevant to immigration decision-making have confidence that this information will be protected if it is disclosed to the Department of Labour (the Department). Without clear guidelines for the protection of such information there is a risk that such information may not be disclosed.

Australia, Canada and the United Kingdom (UK) all allow security and non-security related classified information to be used in immigration decision-making. Australia allows any classified information to be used to inform immigration decisions. In Canada, security or criminal intelligence information may be used in decisions relating to security, violating human or international rights, serious criminality or organised criminality. In the UK, classified information may be used in cases of national security, or for other public interest reasons.

Proposal

On balance, bearing in mind the safeguards discussed below, it is proposed that classified security information and other classified information should be able to be used in protection decisions, where national or international security, criminal conduct or significant international reputation considerations may be an issue, without disclosing the information to the person concerned. This proposal would not change the criteria for the protection decision. The protection decision would still have to be made according to the relevant international conventions.

Status quo

Potentially prejudicial information and reasons for decisions are currently always given to refugee status claimants. This means that classified information cannot currently be used in deciding a protection claim. This may prevent New Zealand from making accurate protection determinations when reliable open-source information is unavailable.

Discussion paper and submissions

The response to the use of classified information in refugee/protection cases was reasonably even, with approximately 45 percent indicating support and approximately 40 percent indicating opposition (of 112 submitters).

The Privacy Commissioner recommends that protection decisions are not made on the basis of undisclosed classified information, in order to better accord with fair information handling and the practices of Canada, the UK, and Australia. This proposal below carries a high risk of criticism, from refugee advocates and other interested parties.

Comment

Protection and immigration decision-making are clearly linked. Once a non-citizen is granted protection status, they can then apply for residence on that basis. It is problematic when one set of decision-makers do not have information that may be available to a later set of decision-makers.

Protection decision-making is different to standard immigration decision-making. Temporary and residence policy have character provisions that set a threshold for approving an application. Protection decisions are based on international conventions and do not factor in character issues, except in the most extreme cases. Therefore, it would not usually be possible to decline protection status on the basis of an NZSIS recommendation, although such a recommendation could be used for temporary and residence decisions.

Classified information could, however, be useful in determining that someone was excluded from protection under the relevant international convention. In particular, other classified information about a country situation and other classified information that relates to the activities of the claimant would be useful in assessing both exclusion provisions and credibility in protection decision-making.

Canada, Australia and the UK do not allow the use of classified information in protection decision-making, on the basis that it cannot be disclosed to the claimant and that determining an international obligation requires fairness and natural justice standards to be upheld.

Proposal

It is proposed that, where Part 4A does not apply, the Minister may use classified security information and other classified information in a decision regarding deportation liability without disclosing the information to the person concerned, with the safeguards discussed below. As discussed above, the classified information must be related to national or international security, criminal conduct or significant international reputation considerations.

Status quo

Classified information is not currently used in deportation decision-making, other than to help locate open source information.

Discussion paper and submissions

The discussion paper did not expressly discuss using classified information in deportation decision-making, but was clear that the proposals related to situations where Part 4A did not apply. It became apparent in developing the proposals for change that it may be possible for classified information to be relevant to decisions to deport where the high threshold for Part 4A would not be reached. The proposal to be able to use classified information in deportation decision-making addresses this issue.

Comment

Liability for deportation is discussed in Chapter Five: Deportation. There is no proposal to introduce new criteria for deportation on the basis of classified information. Rather, this proposal relates to the ability to use classified information to assist with assessing the standard deportation criteria.

In the deportation context, classified information may be relevant in decisions to deport a temporary entrant where criminal conduct or international reputation considerations were at issue, or in the case of deportation on the grounds of being a threat or risk to national or international security where other classified information was relevant to the decision.

Proposal

The following safeguards are proposed:

1. Classified information can be used only in an adverse decision where there is insufficient reliable open-source information available.
2. All immigration decisions involving classified information must be made by the Minister.
3. All protection decisions involving classified information must be made by senior security-cleared determination officers to ensure that the experts in international law are making the decisions, not the NZSIS, or the Minister.
4. The decision-maker could receive a briefing from the relevant agency that held the classified information, relating to the information itself and its reliability.
5. The decision-maker must, following consultation with the agency that provided the information, approve a summary of the information for release to the applicant except to the extent that a summary of any particular part of the information would involve disclosure that would be likely to prejudice the interests referred to in the definition of classified information.
6. Where a decision relied on classified information, the applicant must be informed that the decision had been made on the basis of classified information, the broad reasons for the decision (such as character policy in a residence context or exclusion in a protection context) and what, if any, appeal rights were available.
7. Independent appeal of the initial decision is provided for in most cases, as proposed below.

Status quo

As classified information is not currently used in decision-making, there are no safeguards for its use.

Discussion paper and submissions

As noted above, there was clear feedback from the public submissions (both those who supported and opposed the proposals) that:

• decision-making and review processes need to be transparent
• applicants should be provided with at least a summary of the information to enable them to challenge that information.

Comment

The proposed safeguards are designed to maximise fairness in initial decisions using classified information. They respond to the public's clear view that as much transparency as possible should be provided for.

Proposals

It is proposed that, where a person would ordinarily have access to an appeal right to the tribunal, and classified information is at issue, the person should have access to special appeals mechanisms. This means that access to special appeal mechanisms where classified information had been used would be available for:

1. residence applicants (in New Zealand or offshore)
2. protection claimants in New Zealand, and
3. persons liable for deportation who ordinarily have access to a deportation appeal.

It is proposed that, with the exception of the proposals for additional safeguards below, such as the summary of information and the panel of Judges, all rules relating to the appeal would mirror the standard appeal. For example, residence appeals are determined on the papers and protection appeals generally require hearings.

It is proposed that the tribunal may consider classified information in the context of an appeal where the classified information was not considered in a prior decision, and that the special appeals mechanisms would apply in these cases also.

Status quo

As classified information is not currently used in decision-making, there are no existing special appeals mechanisms.

Discussion paper and submissions

The discussion paper proposed that offshore applicants should have no access to special appeal mechanisms where classified information was used to decline an application. This proposal was an attempt to identify the kinds of applicants with sufficient connection to New Zealand to justify special appeals mechanisms.

Comment

This proposal ensures that a person has the same access to independent appeal whether or not classified information is at issue. The proposal extends the original proposal to allow all residence applicants access to special appeals mechanisms on the basis that some offshore applicants may have strong connections to New Zealand. This may also help address some stakeholder concerns.

As noted above, with the exception of the special appeals mechanisms discussed below, such as special advocates and summaries of information, the general rules applying to the standard appeal right would remain. For example, timeframes for lodging appeals and rules relating to who may have a hearing would remain the same.

Proposals

Status quo

As classified information is not currently used in decision-making, there are no existing special appeals mechanisms.

Discussion paper and submissions

There was strong support for independent appeals mechanisms. A number of public submissions expressed the view that three people should determine these appeals as in the UK. As discussed in Chapter Six: Review and appeal, in particularly complex cases the tribunal would have the discretion to have up to three members determine an appeal. Chapter Six allows for immigration-warranted District Court Judges to be seconded to the tribunal to join a panel to determine a classified information appeal. This approach would allow consideration of, on a case-by-case basis, the cost involved and the level of interest at stake.

There was also strong support from submitters for the use of special advocates, particularly where the person could choose from a panel, and for a requirement to release a summary of the information where possible.

Comment

The proposals for the special appeals to the tribunal build in three key safeguards: using Judges to hear the appeals, requiring summaries to be provided where possible, and using special advocates.

The special advocate provisions in the UK have been in place since 1997. They have received significant public criticism, but their use has been supported by the House of Lords. A House of Commons report in 2005 recommended a number of changes to improve the system, which have informed the proposals in this paper.

The most significant costs of these proposals would arise from appointing a District Court Judge to the tribunal (although the scale and importance of the tribunal may justify that anyway), the special advocate provisions, and the length of time such appeals are likely to take given their potential complexity. The number of appellants likely to access these special appeals mechanisms is likely to be very low, however. In addition, using the tribunal to determine these appeals is likely to be the most efficient mechanism, as its members would be the most experienced in immigration and protection law. The Zaoui case has shown the importance of having clear procedures in place, and adequate support and resources for decision-makers, for timely decision-making to be possible.

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