DEALING WITH CLASSIFIED SECURITY INFORMATION: PROTOCOL

PURSUANT TO 29AC OF THE PASSPORTS ACT 1992

1. This protocol has been agreed by the Chief Justice and the Attorney?General in
accordance with section of the Passports Act 1992 (Act). It sets out the

general practices and procedures that are necessary to:

1.1

1.2

implement the procedures in 29AB of the Act, including any amendment
to that provision or others in the Act where issues involving classi?ed

security information are involved; and

ensure the protection of classi?ed security information, as de?ned by the

Act;

in all proceedings under or arising out of the Act before the High Court and Court of

Appeal.
De?nitions
In this protocol:
2.1 ?Associated material?tin relation to classi?ed security information means

2.2

2.3

2.4

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any material which is written or recorded by a Judge, Court Custodian or
person referred to in paragraph 4.6 and includes all media storage devices
on which this written or recorded material is saved (for example, hard disk

drives or flash drives).

?Appropriate security clearance? means a clearance that is at least equal

to the highest classi?cation of the classi?ed security information concerned

?Classified security information? has the meaning given in $3 

(7) of the Act.

?Court Custodian? means a registrar or deputy registrar, a Judge?s
Associate or any other person assigned to a proceeding to assist with its
administration by the Judge(s) hearing the proceeding; with an appropriate

security clearance.

 

 

2.5

2.6

2.7

2.8

2.9

2.10

2.11

2.12

2.13

2.14

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2.
?Expiry of the proceeding? means the point at which the proceeding is

formally discontinued, or the time for ?ling any appeal has expired, or if any
appeal has been ?led, the time the proceeding is ?nally disposed of. I

?Minister? means the Minister of Internal Affairs.

?Nominated Court Custodian? means a court custodian who has been
nominated by the Judge(s) assigned to the proceeding. for the purpose of

performing the functions referred to in this Protocol.

?Proceeding? means a proceeding before a court under or arising out of

the Act.

?Protective Security Requirements? means the regime that outlines the
Government?s expectations for managing personnel, physical and
information security found at and any

replacement to those requirements.

?Relevant Agency? means a. Speci?ed Agency, which holds classi?ed
security information relevant to a proceeding and has certi?ed in

accordance with of the Act that the information cannot be

disclosed except to the extent provided in 29AB.

?Relevant court? means the court responsible for the time being for the

proceeding.

?Safekeeping Agency? in relation to classi?ed security informaiion means:

2.12.1 where the New Zealand Security Intelligence Service (NZSIS) is

the relevant agency, the Government Communications Security

Bureau and
2.12.2 where any other agency is the relevant agency, the NZSIS.

?Secure case? means a type of case or bag approved by the NZSIS for the
carriage of classi?ed security information, which is ?tted with a uniquely?

keyed lock of a type approved by the NZSIS.

?Security container? means an approved security container fixed in a

location approved by the NZSIS and does not include a secure case.

 

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2.15 ?Specified agency? has the meaning given in section 4(1) of the Terrorism
Suppression Act 2002, and'means:
2.15.1 an intelligence and security agency, which is:

the ZSIS:

the GCSB: .

any other agency declared by the Governor?General from
time to time by Order in Council as an intelligence and
security agency for the purposes of the Inspector?General
of Intelligence and Security Act 1996; or

2.15.2 the New Zealand Police
Prenhearing procedure

3.

As soon as reasonably practicable after the ?ling and service of any proceeding that

involves classi?ed security information, the Crown Law Of?ce will notify the

Registrar of the relevant court that the proceeding involves classi?ed security

information.

Procedure for secure provision of classi?ed security information

4.

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Where classi?ed security information is required for the purpose of a proceeding it

will be provided by the Relevant Agency. The following persons, provided they are

participating in the proceeding, may have access to that information in accordance

with paragraph 8:

4.1 the Judge or judges assigned to the proceeding;

4.2 the Court Custodian(s);

4.3 the Attorney?General;

4.4 the Attorney~Generan representative, who must hold an appropriate
security clearance;

4.5 the head of the Relevant Agency, or his or her representative, or both, each
of whom must hold an appropriate security clearance;

4.6 the Minister;

 

 

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4.7 the Minister?s re resentative who must hold an a to riate securi
PP 

clearance; and

48 any other person(s) appointed or permitted by the court to participate in the

proceeding, who must hold an appropriate security clearance.

If the Judge(s) assigned to the proceeding, a Court Custodian, or person Within
paragraph 4.8 intends to use word processing or other equipment to deal with
classi?ed security information for the purpose of a proceeding, the Relevant Agency
will, in consultation with the Nominated Court Custodian, approve that equipment
in accordance with paragraphs 8 and 10. The approved equipment may be supplied
by the Speci?ed Agency, the Ministry of Justice or any other agency. Which the

Speci?ed Agency considers suitable

The Relevant Agency may provide a brie?ng to the Judge-(s) assigned to the case, 
Court Custodian(s), and/ or person(s) within paragraph 4.8 as to the security
classification of classi?ed security information that is to be used for the purposes of a

proceeding and the procedures for the classi?ed security information?s secure

handling and storage.

The Relevant Agency will provide advice to the Nominated Court Custodian
regarding the physical and IT security of the court premises, the Judges? chambers
and equipment, and advise of any necessary steps to ensure the Protective Security
Requirements are met. The Nominated Court Custodian may consult the judge(s)
assigned to the proceeding as to What steps should be taken to ensure the premises
are a secure place, including steps to ensure compliance with the Protective Security
Requirements and to take all necessary steps following consultation including if

deemed necessary to move the proceeding to a different facility.

Place and time of provision other than for the purpose of hearing(s)

8.

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When any classi?ed security information, associated material or any equipment
provided pursuant to paragraph 9 is required for preparation or for any purpose
Within the scope of this Protocol other than use in court during a hearing, the

Safekeeping Agency will arrange for it to be provided in the following manner:
8.1 to the]udge(s) assigned to the proceeding or a Court Custodian:

8.1.1 at the Judge(s)? chambers or any other place recommended by the
Safekeeping Agency; and

 

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8.1.2 at date(s) and tirne(s) ?xed by the Nominated Court Custodian
after consultation with the Safekeeping Agency; or

8.2 to person(s) Within paragraph 4.8:

8.2.1 at a place designated by the Safekeeping Agency; and

8.2.2 at date(s) and time(s) ?xed by direction of the Judge(s) assigned to
the proceeding or by the Nominated Court Custodian after
consultation with the Safekeeping Agency.

Manner of provision for the purpose of hearing(s)

9.

The Safekeeping Agency, the Ministry of Justice or any other agency which the
Safek?eeping Agency considers suitable will provide the classi?ed security
information, associated material and/ or equipment to the Judge(s) and/ or a Court
Custodian(s) assigned to the proceeding and/ or person(s) under paragraph 4.8

participating in the hearing at the court.

Storage and sealing of classified scourity information, associated material and
equipment when not in use

10.

11.

12.

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When classi?ed security information, associated material or equipment provided
pursuant to paragraph session when the court is sitting during a
day,' it is to be secured by the Nominated Court Custodian in a secure case, which the
Nominated Court Custodian must lock and retain in his or her continuous personal

custody until the information is in use again.

When classi?ed security information, associated material or equipment provided
pursuant to paragraph 9 is required for more than one day, at the conclusion of the
day, it must be provided to the Safekeeping Agency which will be responsible for
securely transporting and storing the material and returning it to the Court when it is

next required in the proceeding.

Classi?ed security information provided to the Judge(s) assigned to the proceeding,
Court Custodian(s) or person(s) Within paragraph 4.8, and any associated material or
equipment shall be kept separate from other unclassi?ed information used in the

proceeding and shall not be released to any other person unless:
12.1 the relevant agency has given permission; and

12.2 if the document is part of a discovery process, no certi?cate under 27(3)
of the Crown Proceedings Act 1950 has been issued; and

 

 

13.

14.

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12.3 done in accordance with the no other court order is made

preventing disclosure.

The Nominated Court Custodian shall be responsible for sealing tamper?proof bags
and envelopes. Seals on tamper?proof. bags and envelopes may only be broken by
the Nominated Court Custodian for the purpose of the enclosed classi?ed security
information or associated material being used by the Judge(s) assigned to the
proceeding, a Court Custodian or a person within paragraph 4.6. The Nominated
Court Custodian will keep a register of every tamper?proof bag and envelope

produced and the date and time of every occasion on which:

13.1 each tamper?proof bag or envelope is received into his or her custody and

sealed;

13.2 each tamper-proof bag or envelope is opened and its contents delivered to

the Judge(s) assigned to the proceeding 9. Court Custodian or person Within
paragraph 4.6 and

13.3 each secure case containing classi?ed security information or associated

material is provided to or returned by the Safekeeping Agency.

The Nominated Court Custodian shall secure any equipment provided pursuant to
paragraph 5 When it is not in use. For example, electronic recording equipment such
as a Dictaphone may be secured by the removal of batteries and placement in a
muf?e~proof box, which may then be sealed by placement in a tamperwproof bag or
envelope. Where equipment has been physically sealed, only the Safekeeping Agency

or the Nominated Court Custodian can remove the seal. Removal of the seal must

be recorded pursuant to paragraph 13.

Application of procedures to judgments, orders and any other document or record

15.

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Paragraphs 8 to 14 shall apply to:

15.1 any summary or draft summary prepared under 29AB of the Act until
provided by the court under to the person concerned;

15.2 any judgment or order, or part of that judgment or order, that contains

classi?ed security information, of the type referred to in and

 

 

 

 

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17.

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15.3 any other document or record that contains or refers to classi?ed security

information.

The Nominated Court Custodian will provide the Safekeeping Agency with a copy of
the statement of information to be given to the person in respect to whom a decision
is being made pursuant to (Statement) no less than 48 hours before the
document is disclosed to the parties to the proceeding or the public, for the sole
purpose of enabling the Safekeeping Agency to review the document for any
unintended disclosure of classi?ed security information. The Safekeeping Agency
may, in the course of its review consult with other persons provided they hold an
appropriate security clearance. The Safekeeping Agency must advise the Nominated
Court Custodian within 48 hours of the provision of the document if the agency is
concerned that disclosure of the Statement will result in the disclosure of classi?ed

security infortnation:

16.1 if the Safekeeping Agency has no concerns or does not respond to the
Nominated Court Custodian within 48 hours, the Court Custodian may

release the Statement; or

16.2 if the Safekeeping Agency advises it has concerns within 48 hours, the -
Nominated Court Custodian must refer the advice of the Safekeeping Agency
to the Judge(s) assigned to the proceeding, who must decide whether any
further amendments are necessary to ensure that classi?ed security
information is not disclosed, and to make such amendments as they consider
necessary. In deciding whether amendments are necessary, the Judge(s)
assigned to the proceeding must take into account the contents of the
Protective Security Requirements. The Statement may then be given to the

person concerned with or without amendinents directed by the Court.

The Nominated Court Custodian will provide the Safekeeping Agency with a copy of 
any other summary, order or judgment of the Court no less than 48 hours before a
document is disclosed to the parties to the proceeding or the public, for the sole
purpose of enabling the Safekeeping Agency to review the document and provide

advice on any redactions necessary to ensure there is no unintended disclosure of

classi?ed security information.

 

 

Expiry of proceeding
15. On the expiry of the proceeding:

15.1 the classi?ed security information shall be previded to the Safekeeping

Agency for return to the relevant agency;

15.2 any classi?ed security information that is ordered by the Judge(s) to be
retained shall be sealed by the Nominated Court Custodian and held either
by the relevant court under conditions agreed with the Safekeeping Agency

or by the Safekeeping Agency; and

15.3 any classi?ed security information that is not ordered to be retained shall be
sealed by the Court Custodian and provided to the Safekeeping Agency,

which will destroy it under secure conditions.

a
Dated: [/7Gi j?iAAw7 20/?
Agreed by the Chief Justice

Regal

Agreed by the Attorney General

?Wm

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