Security Risk Certificate - Designation of An Entity

Designation of An Entity

A comparable procedure to the current system for review of a 'Security Risk Certificate is that provided for the designation of an entity as a terrorist entity or an associated entity of a terrorist by the Prime Minister under the Terrorism Suppression Act 2002 (ss 20, 22). Under s 38 a marked departure occurs from New Zealand's open justice and adversarial process in procedures relating to such applications to challenge or to appeal such designation.

The Chief Justice or nominee, on request by the Attorney-General, if satisfied that it is desirable to do so for the protection of the classified information received or hear the classified security information in the absence of the designated entity, and all barristers and solicitors representing that entity, and all members of the public (s 38(3)(b)). A summary of the information, excluding any summary of information that will itself likely to prejudice the interests set out in s 32(3), is then approved by the Court (s 38(4)(a)). A copy of that would then be given to the entity concerned (s 38(4)(b)).

Section 32(3) is denied if the disclosure would be likely:

• To prejudice the security or defence of New Zealand, or the international relations of the Government of New Zealand (s 32(3)(a)); or
• To prejudice the entrusting of information to the Government … by the Government of another country or international organization (s 32(3)(b)); or
• To prejudice making of law including the prevention, investigation and detection of offences and the right to a fair trial (s 32(3)(c)); or
• To endanger the safety of any person (s 32(3)(d)).

While the specific offences of terrorist bombing and financing of terrorism offences do not rely on the designation of entities, the other prohibition offences do, unless the prosecution can rely upon knowledge/recklessness of the group carrying out a terrorist act. The other offence (relating to dealings with terrorists) is also affected by extraterritorial jurisdiction either as to the Actus reus or to some aspect of connection with the offence or offenders.