Employment law - amendments ahead re security information in proceedings
Employment Relations Act amendments
The sections affected are:
- Section 133 (Jurisdiction concerning penalties) — subs (2)(a) is amended to include a cross-reference to new s 178AA.
- Section 178 (Removal to court) — the heading is amended to “Removal to court generally”.
- Section 178AA (Removal to court of proceeding involving national security information) is inserted:
“178AA Removal to court of proceeding involving national security information
“If the Attorney-General gives written notice to the Authority that the Crown intends to make an SI application (under section 32 of the Security Information in Proceedings Act 2022) in connection with proceedings before the Authority, section 44 of that Act* applies as if a reference in that section to the District Court were a reference to the Authority and a reference to the High Court were a reference to the Employment Court.”
- Section 187 (Jurisdiction of court) — subs (1)(e) is amended to include a cross-reference to new s 178AA.
A basic understanding of these amendments can be gleaned from the Security Information in Proceedings Legislation Bill 2021 (97-1) (explanatory note):
“The Bill amends several pieces of legislation and provides an overarching and coherent framework for dealing with security information in court proceedings. These court proceedings encompass civil proceedings, including judicial review of administrative decisions, and criminal proceedings. The Bill is the Government’s response to Part 2 of the Law Commission’s report The Crown in Court: A Review of the Crown Proceedings Act and National Security Information in Proceedings, 14 December 2015 (NZLC R135).
“Clause 33 [now s 33 of the SIPA] provides that an SI [security information] application may be made in the course of a hearing only if the High Court or Employment Court is conducting the hearing. An SI application cannot be made in the case of a proceeding before the District Court or the Employment Relations Authority if the hearing is underway. This is because proceedings must be removed from the District Court to the High Court, or from the Employment Relations Authority to the Employment Court, if the Attorney-General gives notice that the Crown intends to make an SI application (see clause 44 [s 44 of the SIPA]* and new section 178AA of the Employment Relations Act 2000 …).
“Clauses 133, 134, and 136 [Sections 88, 89 and 91 of the SIPRAA] amend sections 133, 178, and 187 [of the Employment Relations Act] respectively as a consequence of the insertion of new section 178AA …
“Clause 135 [Section 90 of the SIPRAA] inserts new section 178AA, which applies clause 46 of the Bill [s 46 of the SIPA]* to a matter before the Employment Relations Authority if NSI [national security information] is at issue. This has the effect of requiring the Authority to order that a matter before it be removed to the Employment Court if the Attorney-General gives written notice to the Authority that the Crown intends to make an SI application in connection with the matter.”
* It seems that a drafting error in the Bill — sometimes cross-referencing “clause 44” instead of “clause 46” — has persisted into new s 178AA, which refers to s 44 of the SIPA (Withdrawal of SI application) when it should refer to s 46 of the SIPA (Removal of proceeding not commenced in High Court).
Health and Safety at Work Act amendments
- Section 162 (Proceedings involving classified security information) is repealed.
- Schedule 4 (Provisions relating to classified security information) is repealed.
Again, the Security Information in Proceedings Legislation Bill 2021 (97-1) (explanatory note) provides some basic guidance:
“Clauses 145 and 146 [ss 99 and 100 of the SIPRAA] repeal section 162 and Schedule 4 [of the Health and Safety at Work Act], which contain provisions relating to the protection of classified security information in proceedings. Those provisions include procedures having a similar effect to the special procedures set out in Part 2 of the Bill [SIPA]. To the extent that the proceedings involve NSI and are civil proceedings, Part 2 (together with Part 3) of the Bill [SIPA] will apply.”
These and other pending amendments to employment legislation are noted at Pending and Proposed Employment Legislation Changes in Employment Law (online ed, Thomson Reuters) on Westlaw New Zealand.